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TMI Blog2019 (12) TMI 1634X X X X Extracts X X X X X X X X Extracts X X X X ..... on of India, R2. JUDGEMENT JUSTICE JARAT KUMAR JAIN, MEMBER (JUDICIAL) The appellant, Registrar of Companies has preferred this appeal against the order dated 18.1.2019 passed by National Company Law Tribunal, New Delhi whereby the winding up petition under Section 271-272 of Companies Act, 2013 filed against the Respondent No.1 company was dismissed with costs. Union of India through MCA, being sanctioning authority was impleaded as Respondent No.2 in this appeal. 2. The Respondent NO.1 company was incorporated on 7.10.1983 with an authorised capital of Rs. 20 crores and a paid up capital for more than Rs.19.97 crores. The company is portrayed that it was in business of financing industrial enterprises. The Central Government in exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore granting the sanction for initiation of winding up proceedings no reasonable opportunity of hearing has been given. However, after receiving the notice dated 07.07.2017 in reply to the notice Respondent No.1 requested for providing the copy of report to understand the allegations against the company and also prayed for personal hearing. But, without providing the copy of the report on 29.08.2017 sanction to initiate winding up proceedings has been granted. The sanction does not contain the allegations and documents which were considered for granting the sanction. It shows non-application of mind. Thus the sanction is not valid. 4. It is further stated that the Respondent No.1 company is incorporated in the year 1993 with paid up capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant has filed balance sheets, profit and loss accounts and the list of shareholders of the Respondent company. From these documents it is proved that the Respondent income was less than the expenditure in the year 2008-2009. On careful examination it was found that the figures were manipulated. NCLT has not considered these documents thus the finding of NCLT is liable to be set aside. 8. Learned Sr. Panel Counsel appearing for Respondent No.2 supports the argument of appellant and submits that it is settled law that by granting sanction the competent authority does not determine or decide any question and issue against the company but records its prima facie and administrative satisfaction for sanction for presenting the win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment shall not accord its sanction unless the company has been given a reasonable opportunity of making representations. But no such opportunity has been given to the Respondent No.1. Learned Sr. Counsel further submits that sanction dated 29.08.2017 does not contain the material which was considered by the sanctioning authority at the time of granting sanction. It shows that in a very casual manner the sanction has been granted without applying mind. It is also submitted that the sanction letter is addressed to Director, SFIO whereas the proceedings has to be initiated by ROC, Delhi. Thus the Tribunal has rightly dismissed the petition for want of proper sanction under Section 272 of Companies Act, 2013. 10. We have considered the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resentation. 14. Now we have considered the sanction. The relevant part is as under: "To The Director, Serious Fraud Investigation Office, 2nd Floor, Pt Deendayal Antodaya Bhawan, B-3 Wing, CGO Complex, Lodhi Road, New Delhi-110003. Sub:In the matter of M/s NKS Holdings Pvt Ltd & Ors-Issue of SCN U/s 272 (4) of the Companies Act, 2013-reg. Sir, I am directed to refer to the letter number RD(NR).Inv/235/NKS/2017/5944 dated 11.08.2017 (copy enclosed) from RD(NR) on the subject cited above inter alia stating that complete files regarding issuance of SCNs to the companies be transferred to the O/o ROC Delhi for taking action pursuant to directions of the Ministry vide letters No.5/10/2013/CL-II dated 23.5.2017 and 15.6.2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Registrar u/s 439(5) unless an opportunity is afforded to the company of making representations, if any. The delegate of the Central Government while according sanction, has a solemn duty to perform of informing himself about the true position of the company in the light of the explanations made by it. The explanations have to be considered with a judicial mind and outlook and are not to be discarded off-hand unless considered to be flimsy, fallacious or frivolous. It is not a mere formality to receive the explanations from the company and dismiss them as unsatisfactory without getting the doubts cleared. Xxxxx" 16. It is apparent that without giving reasonable opportunity of representation to Respondent No.1 the sanction has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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