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TMI Blog2022 (4) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of facts and circumstances of the entire conspectus of the present case, that it is just and proper to restore the Appellant / Company s name and that the failure / negligence / omissions on the part of the `Appellant /`Company in not filing the `Statutory Annual Returns and `Financial Statements in time, can be saddled with a levy of costs, to prevent an aberration of justice and to promote substantial cause of justice. The name is ordered to be restored - application allowed. - Company Appeal (AT) No. 51 of 2022 - - - Dated:- 21-4-2022 - [ Justice M. Venugopal ] Member ( Judicial ) And [ Dr. Ashok Kumar Mishra ] Member ( Technical ) For the Appellant : Mr. Nitesh Kumar Sinha , Advocate For the Respondent : No Appearance JUDGMENT ( Virtual Mode ) Justice M. Venugopal, Member (Judicial): Preamble: The `Appellant /`Company has preferred the instant Company Appeal (AT) No. 51 of 2022 being dissatisfied with the impugned order dated 15.11.2021 passed by the `National Company Law Tribunal , Kolkata Bench, Kolkata in CP/59(KB)/2021, under Section 252 (3) of the Companies Act, 2013, in dismissing the Petition. Appellant s Contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nearby in the aforementioned land post the Company gets revived. Hence, it is in the `just and equitable interest and in the interest of justice the Company should be revived. Report Filed Before `Tribunal : 7. Added further, the `Deputy Registrar of Companies , West Bengal in its `Report dated 24.08.2021 before the `National Company Law Tribunal , Kolkata Bench in CP/59(KB)/2021 had averred that the Company had not filed their `Balance Sheet(s) and Annual Return(s) for the Financial Year from 31.03.2008 to 31.03.2020 before the Office of the Respondent. Indeed, as per the available records maintained by the Respondent s Office, the Company was struck off on 11.09.2012 after complying with the requirements of the Companies Act, 1956. And that the Respondent had issued a `Notice under the Companies Act, 1956, for removal of the Company s name, from the `Register of Companies as there was a reasonable cause to believe that the Company was not carrying on operation for several years, besides, the `Appellant /`Petitioner had failed to file their Statutory Documents i.e., `Annual Return(s) and `Balance Sheet(s) before the Respondent. Discussions: 8. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies reported in (1986) 60 CompCas 154 (Bom). 12. In the decision POSH Exports Pvt Ltd. V The Registrar of Companies (DEL) CP 207 of 2014 decided on 16.12.2014), it is observed and held that the Petition was allowed subject to payment of costs of ₹ 75,000/- and the name of the Petitioner/Company was restored subject to the file of all statutory documents and returns for the outstanding period along with prescribed fees in accordance with law. 13. In Amarpreet Enterprises P Ltd. Another V Registrar of Companies reported in (2010) 101 SCL 420 (Del), The Hon ble Delhi High Court had observed that restoration of name of a company struck off by the Registrar of Companies can be made in two situations (1) when the Court is satisfied when the company was in `Business or in `Operation at the time when the name was `struck off or (2) it is `otherwise just that the company s name be restored. 14. In the Judgment of this `Tribunal in `Tweak the Future Innovations Private Limited V Registrar of Companies , Punjab and Chandigarh [vide Comp. App (AT) No.300 of 2019 dated 03.03.2020] [Three Member Bench] at paragraph 16 to 20, it is observed as under: 16. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of Pay Account Officer, Ministry of Corporate Affairs, Chandigarh / New Delhi towards cost for not filing statutory documents as required under Companies Act, 2013. 20. We dispose off the application with above direction. No other prayer is allowed. 15. In the Judgment of this `Tribunal dated 24.01.2019 in `Basant Kumar Berila, West Bengal Another V ROC, West Bengal, Kolkata Another (vide Comp App (AT) No. 171 of 2018), at paragraph 30 and 32, it is observed inter alia as under: 30 Thereafter, 1st respondent vide notice dated 30.6.2017 (Page 87) struck off the name of the 2nd respondent from the register of companies. Now these appellants had filed petition/appeal before the NCLT stating that the company is going concern and they have valuable assets, long terms loan and advances and filed petition/appeal under Section 252(3) of the Act. If the appellants had pleaded it before the ROC, then the ROC before striking off the name of the company under Section 248(5), would have considered the pleas now taken under Section 248(6) of the Companies Act, 2013. The appellants have now filed with this appeal the Balance Sheets for the years 2014, 2015 and 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 50,000/- in the Ministry of Corporate Affairs. The Learned Counsel for the Appellant states that the Appellant is in the profession of Education and has been suffering losses and thus the costs should not have been imposed. Respondent is `RoC . We dispense with Notice to `RoC matter being only of costs. Considering the default and the order passed, it appears to us that it will be appropriate considering proportionality to reduce the costs to payment of ₹ 25,000/- in the Prime Minister Relief Fund and we set aside the direction of the Ld. NCLT to pay another ₹ 50,000/- to the Ministry of Corporate Affairs. and accordingly, the `Appeal was disposed of. Liability: 17. It is significantly pointed out that the `liability as per the ingredients of Section 92 of the Companies Act, 2013 is that even a defunct company, like every other company is under an obligation to file their `Statutory Annual Returns till it is wound up or till such time, the Company is struck off by the Registrar under Section 248 of the Companies Act, 2013. 18. It must be borne in mind that in Civil Appeal No. 6803-6805 of 2021 in the matter of R. Narayanasamy V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany in not filing the `Statutory Annual Returns and `Financial Statements in time, can be saddled with a levy of costs, to prevent an aberration of justice and to promote substantial cause of justice. Per contra, the conclusion arrived at by the `National Company Law Tribunal, Kolkata Bench, Kolkata in CP/59(KB)/2021 in the impugned order passed on 15.11.2021 in dismissing the main Company Petition `as without any merit is untenable and not valid in law. Viewed from any angle, the `Appeal succeeds. Result: 22. In fine, the instant Comp App (AT) No. 51 of 2022 is allowed. No costs. The Impugned Order dated 15.11.2021 in CP/59(KB)/2021 passed by the `National Company Law Tribunal , Kolkata Bench, Kolkata, is set aside by this `Appellate Tribunal . The Notice dated 11.09.2012 of the Office of the Respondent in striking off the name of the Appellant Company from the `Register of Companies and `Dissolution of the said company is set aside. Before parting with the instant `Appeal , this `Tribunal makes it candidly clear that the `Restoration of the Name of the Appellant s company is subject to its filing of all outstanding relevant documents required by `Law and f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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