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TMI Blog2021 (1) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... le Member (Judicial) and Hon'ble Member (Technical) delivered divergent Judgements on 26th November, 2020. The Hon'ble Members recorded a note on same date asking Registrar to place the record before the Hon'ble Acting Chairperson together with copies of the Judgements for constituting appropriate Bench/nominating Hon'ble 3rd Member for rendering his opinion/decision in the Appeal. When the Registrar put up the note before the Hon'ble Acting Chairperson, on the administrative side, the Hon'ble Acting Chairperson on 27th November, 2020 directed that in view of split verdict, let the Appeal be placed before me for opinion. This is how the Appeal came to be placed before me on judicial side on 18th December, 2020. Respondent had not appeared and I heard learned Senior Counsel for Appellant and reserved the matter for Judgement. Before the proceedings on 18.12.2020 could be signed, in the course of the day, the ROC reached this Tribunal and wanted to file written submissions. Earlier in the Appeal, ROC had not appeared before the Hon'ble Judges when the Judgements dated 26th November, 2020 were passed. In the interest of justice on 18th December, 2020, I recorded the proceedings giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the other Members of the Tribunal and such points or points shall be decided according to the opinion of the majority of Members who have heard the case, including those who first heard it." Thus this Sub-Section provides (as regards NCLT) that when the Members differ, they shall state the point or points on which they differ and when the matter is referred to other Member/s, the point or points shall be decided according to the opinion of the majority. Similar provision does not appear to be there with regard to the Appellate Tribunal. 8. Sub-Section (1) of Section 424 of the Companies Act reads as under:- "424. Procedure before Tribunal and Appellate Tribunal.-(1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Judges belonging to a Court consisting of more Judges than those constituting the Bench and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, the such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it. (3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court." 11. Applicability of Section 98 of CPC in the context of Section 23 of the Travancore Cochin High Court Act, 1125 had come up for consideration before Constitution Bench of the Hon'ble The Supreme Court of India in Civil Appeal No.201/2005 "Pankajakshi and Ors. vs. Chandrika and Ors." - MANU/SC/0233/2016 : (2016) 6 SCC 157). The Judgement is dated 25th February, 2016. While deciding the reference, the Hon'ble Constitution Bench recorded in para - 51 as under:- "51. For the aforesaid reasons we conclude that Hemalathas case was wrongly decided and answer Question 1 referred to us by stating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refer the matter or matters of disagreement for the opinion of another Judge and the case will be decided on the opinion of the majority hearing the case." 12. Thus, in the absence of specific provision, if by me Section 98(2) of CPC is to be adopted relying on principles of natural justice, then, when there is no majority in a Judgement varying or reversing the decree against which the Appeal has been filed, such decree is required to be confirmed if point of law is not the cause of difference. I have gone through the Judgements of the Hon'ble Members of this Tribunal where they have recorded divergent Judgements. The difference between the Hon'ble Members does not appear to be on point of law. No point of law or difference on point of law is recorded. The Hon'ble Members have considered the facts involved and different views are on the basis whether it would be "just" to restore the name of the Company. In this context, Sub-Section (3) of Section 252 of the Companies Act is relevant which reads as under:- "(3) If a Company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaving and in the business of buying and selling raw or finished cotton, wool, etc. products. Appellant claimed before NCLT that the Company has fixed assets as mentioned in para - 4.9. It was claimed that the Company did not file Balance Sheets and Annual Returns since incorporation (see para - 4.10 of Annexure A-11) (This is not correct as according to ROC, Returns were not filed since 2015). The Appellant claimed that this happened in the absence of expert professional guidance. Appellant claimed that a Consultant was there but he did not have knowledge of Company law. Appellant claimed that "the Company has no activity as of now and in any event, we should have filed the NIL Report at least". The Appellant claimed that ROC had issued Notice under Section 248(1) dated 11th May, 2018 proposing to strike off the name of the Company. Copy of the Notice is at Annexure A-8. Appellant claimed that the Appellant had sent Reply on 24th July, 2018. It was claimed that ROC received the Reply but later when the Appellant tried to submit the Annual Returns, they came to know that the name of the Company was struck off as per Notice published dated 6th July, 2018. (This is not correct. Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey would start business again as conditions were improving. The NCLT considered the documents filed and observed that the Income Tax Returns were filed but not the Returns required to be filed with ROC. The conclusion drawn in para - 11 of the Impugned Judgement is as under:- "11. Thus, after conscientious perusal of the documents filed by the Applicant Company, this Tribunal is satisfied that the Applicant Company is not carrying on its business during the time when the Company was struck off from the Register maintained by the Respondent and also no cogent reasons or any documents are produced before this Tribunal in order to substantiate that the Company was carrying on its business or it is just to revive / restore the name of the Company to the Register as maintained by the Respondent." Thus, the Appeal came to be dismissed by the learned NCLT. 16. In the present Appeal before this Tribunal, the Appellant for the first time has tried to claim in para - 7.12 that the Notice dated 11th May, 2018 (Annexure A-8) was sent on 22.06.2018 antedating the same as 11th May, 2018. No foundation was laid and no material is shown to make such claim for the first time in Appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r who moved the High Court as the Petitioner had an award in its favour but could not execute the same as the name of the Company was struck off. Reliance is also placed on the Judgement in the matter of "Umed Bhai Jhaverbhai vs. Moreshwar Keshav" reported in AIR 1954 MB 146. In that matter, the Applicant had money to recover from the concerned mill and Suit was pending to recover the amount when ROC struck off the Company. On the Petition of such Applicant and facts, the name was directed to be restored. Clearly, those would be persons relying on Section 252(1) of the Companies Act. The Appellant has referred to a few other Judgements of this Tribunal also in this regard. As such, I refer to the cases which are said to be basis for claim that the name requires to be restored. The written submissions filed by the Counsel for Appellant vide Diary No.24318 in this regard mention:- " * Apart from that, the appellant is facing labour cases, Provident fund cases and electricity board cases. a. Labour case: Regarding the termination of two workers in 2004. WA (MD) 1161 and 1162 of 2018 were filed before Madurai Bench of Madras High Court and the appellant has paid Rs. 1,07,004 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the litigations were of such a nature that it would be just to restore the name of the Company. 22. As regards the assets, the Appellant has claimed that the Company has a property on its name and also filed a Valuation Report (Annexure A-6 colly) claiming that the market value of the property which is known as Laxmi Mills Factory Building and Guest House Building is worth more than Rs. 8 Crores. Again if the Annual Report of 2017 - 2018 is to be referred at Page - 167, there is Balance Sheet as on 31.03.2018. In the Column of Assets, there is entry of "Non-current assets". There is reference to "(a) Fixed assets". Against "Tangible Assets" there is mention of the amount of Rs. 12,86,637/- as on 31.03.2018. The column mentions Note No.8 for particulars. When I have tried to see the particulars so as to read the Note No.8, I have noticed (Pages - 170 and 171) that various Notes to Balance Sheets have been recorded for particulars. Note No.8, however, is missing in these Notes. Similar is the condition with the Balance Sheet of 2014 - 2015 (Page - 51 read with Page - 71) where there is reference with regard to tangible assets to be read with Note No.9 and there also at the concer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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