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TMI Blog2019 (2) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Law Tribunal, Delhi ('NCLT' in short) and was registered as CP No. 1022(ND)/2016. Appellant/Original Petitioner has filed a copy of that petition at Annexure-A9. The petition in short filed was as follows: a) The Petitioner referred to particulars regarding incorporation of the Respondent - Company on 15th February, 1956 and referred to the Memorandum of Association and Articles of Association (pg. 202 to 226). The Petitioner claimed that the name of the Company was struck off by Registrar of Companies vide order dated 31st May, 2007 pursuant to notification under Section 560(5) of the Old Act which was issued in the Gazette dated 23rd June, 2007. Copy of the Gazette has been filed in the appeal (Pg. 227-228) which shows the Original Petitioner Company being struck off under Section 560(5) of the Old Act. Various other companies were also there who were struck off by the said Gazette Notification. b) The Petitioner claimed that being aggrieved by striking off, the Petition was filed through Director Shri Harinder Singh Bedi, who has been authorised by the Board Resolution dated 25th January, 2016. A copy of the Board Resolution has been annexed as Annexure-P3 (Pg. 230) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of earlier orders could not be filed due to circumstances explained and that the Company was in the process of its regularisation. It claimed in 2016 that the Company came to know from the Practising Company Secretary regarding striking off the name of the Company and inspection of Company records in MCA Portal was taken. The Petitioner claimed that Respondents had not given notice as per Section 560(1)(2) & (3) and they did not have earlier knowledge about notification under Section 560(5) of the Old Act and so did not get opportunity to represent before the ROC. The Petitioner claimed that there was non-compliance of these provisions and expressed that the Company was ready and willing to file upto date Annual Returns and Balance Sheets, since non-submissions. It claimed that since incorporation it had been carrying on the objects of producers, exhibitors, distributors etc. in cinematograph films, talkies etc. and it was just and equitable to restore the name of Company. 2. It appears that in view of the petition, the Appellant/Original Petitioner filed affidavit/no objection certificates (Pg. 231 to 240 of the Appeal) claiming to be Principal Directors of the Company and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had filed all statutory documents but later erred due to reason that cinema hall run by the company faced dwindling demand from the public and the company faced employees' problem. Further it was claimed that the company was holding Annual General Meetings each year and Annual accounts for each and every financial year were audited by the statutory Auditors continuously. With the rejoinder the Petitioner filed the copies of Income Tax Returns as Annexure-III. Copies of such returns filed with the appeal relate to Assessment years 1998-99 till 2000-01; 2002-03; and after a gap from 2003-04 till 2012-13, copies of the returns for the Assessment years 2013-14 till 2016-17 were filed. 6. The Advocate for the Petitioner filed on 4th September, 2017 Income Tax Returns claiming that the Annual Returns for 1990-2002 and 2015-16 were being filed which the learned NCLT has referred as balance sheets filed during the course of hearing without any support of affidavit and treating the same as not taken on record. 7. The learned NCLT after considering the matter, as was placed before it, discussed the material and found as under: i) Referring to the list of Directors claimed by the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the impugned order, the present appeal was filed by original Petitioner as Appellant No. 1 and Shri Harinder Singh Bedi joined as Appellant No. 2 and the Appellants for the first time came up with new case with the appeal that although it continued business till 2002 when screening of films were suspended still the company continued to remain in operation continuously till date as was being detailed in the appeal. The Appeal then refers to Company being vested with valuable immovable property which is the asset of the company worth approximately Rs. 140 Crores. The Appellants claimed that Appellant Company has taken steps and appointed statutory personnel to protect the campus. The Company was in discussion with various investors to explore business particularly on the land. In order to show that the Company was active and operational it filed with the appeal copies of minutes of Annual General Meetings of the Company from 1999 till date as claimed at Annexure-A2 and audited Financial Statements from 1999-2002 till 2015-16 which were placed before the NCLT along with Financial Statements for the Financial Years 2016-17 as enclosed at Annexure-A3 of the Appeal. With regard to Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moved the Hon'ble Supreme Court by filing Special Leave Petition and in Civil Appeal No. 4178 of 2018, the Hon'ble Supreme Court passed the following order: ... "Heard Ld. Counsel for the appellant. The National Company Law Appellate Tribunal (NCLAT) has issued an order in which it has issued notice in the company appeal, but stated that the documents which were not before the Tribunal will not be taken into consideration in the appeal. This being the position, we grant liberty to the appellants to move the NCLT for production of certain balance sheets and other additional documents, which according to the appellants are vital to this case. This application can be made with the necessary affidavit in this behalf. If the NCLT allows the application, the documents can be relied on the appeal before the NCLAT. The appeal is, accordingly, disposed of." .... 12. In view of such order, the Appellant went before NCLT and filed application. NCLT considered the application and order passed by the Hon'ble Supreme Court referred above and passed following order: ..... "We have heard Ld. Counsel at length and are of the view that the additional documents Annexure A-4, A-5, A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r creditor thereof, feels aggrieved by the company having been struck off the register, the Court, on an application made by the company, member or creditor before the expiry of twenty years from the publication in the Official Gazette of the notice aforesaid, may, if satisfied that the company was, at the time of the striking off, carrying on business or in operation or otherwise that it is just that the company be restored to the register, order the name of the company to be restored to the register; and the Court may, by the order, give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off." 16. It is clear from the above sub-section 6 of Section 560 that the Company or Member or Creditor, who feels aggrieved, needs to satisfy the Tribunal by showing that I. The Company was at the time of striking off carrying on business, or II. the Company at the time of striking off was in operation; or III. Otherwise, that it is just that the company be restored to the Register. 17. These are the three grounds which the Tribunal would require t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any was in operation. Pleadings to make out a case to the effect that "it is just that the company be restored" were also not there The Appellants have now filed additional affidavit. It is mentioned in Paragraphs 12 & 13 as under: "12. One of the submissions of the Appellants in the course of the arguments was to seek remand of the matter to Hon'ble NCLT for fresh consideration based on all the additional documents placed in record before this Appellate Tribunal till date. 13. The Appellants is desirous to get the present appeal disposed off with a direction to remand back the matter to Hon'ble NCLT for fresh adjudication based on all the documents/evidences placed on till date, with an opportunity to amend the original petition on the basis of the additional evidence taken on record by the Hon'ble NCLT vide order dated 03.08.2018." 22. The Appellants thus want that the pleadings in the petition filed in NCLT with regard to the claims being made that the Company was in operation when it was struck off and that there exist just reasons to restore the name of the Company. We do not have the benefit of observations of the learned NCLT with regard to various documents which hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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