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TMI Blog2024 (2) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... rity does not authorise the Appellate Authority to fill the gap in question. The Tribunal / Court of Law is to see whether the Petitioner/Appellant lacked due diligence to be seen, and he cannot be allowed to fill up the lacuna at the belated stage. Moreover, the production of additional evidence is not to be permitted where a person does not satisfy the Tribunal / Court that such evidence was not within the knowledge or could not be produced with due diligence. Even though in the present case, the Appellant has come out with a reason that the Petitioner/Appellant had engaged a Part Time Employee to file the Annual Return before the Registrar of Companies and that because of the reason unknown to the Appellant, the said employee left and therefore, the Return could not be filed on time for the financial years 2016-2017 and 2017-18 and by the time it came to the knowledge of the Appellant/Petitioner Company, his name was already struck off from the register maintained by the Registrar of Companies , the Tribunal, in CP(Appeal) No.69/CTB/2020 on 21.08.2020, at para No.11 had clearly observed that before striking off the name of the company from its register, ROC, had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile amendment petition. The applicant not filed an application for an amendment instead he filed the application to receive the additional documents, this prayer is beyond the scope of the permission granted by High Court. The applicant cannot on its own expand the permission granted by High Court and labelled that this application is filed in pursuance of High Court order dated 23.12.2021. In the High Court order there is no whisper about production of additional documents and the revival of the company. In strict sense this application is not in consonance with the order of High Court. The citations submitted by the applicant counsel regarding revival of company are not relevant to decide the amendment application. In the circumstances, the application is devoid of merits both on law and facts and liable to be dismissed. and resultantly dismissed the Application. Appellant s Submissions 3. The Learned Counsel for the Appellant contends that the impugned order dated 08.08.2023 in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 passed by the National Company Law Tribunal, Cuttack Bench is an erroneous one and that the Tribunal had misinterpreted the meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Appellant, proceeds to point out that the Tribunal had passed its final order in CP No. 69/CB/2020 untenably dismissing the Company Petition by wrongly holding that the perusal of the documents filed prima facie suggested that the Appellant/Company was not carrying out its business during the relevant time when its name was struck off, it was wrongly held that the Company was not a Going Concern and was not doing any Banking / Business Transactions when its name was struck off from the Register of Companies and that the Company was not having any business operations. 11. The Learned Counsel for the Appellant, submits that there was a breach of the Principles of Natural Justice , in as much as the objections , of the Respondent / Registrar of Companies , were not furnished to the Appellant and No Opportunity , was afforded to the Company to explain and tender proof that it was in operation , at the relevant point of time. 12. According to the Appellant, it filed W.P. (C) 35437 of 2020 before the Hon ble High Court of Orissa, and on 23.12.2021 there was a categorical direction that the Appellant might approach the Ld. NCLT, Cuttack to contend that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2013 which mentions that the Respondent shall satisfy itself that sufficient provision was made for the realisation of the sums due to the Company and for payment and discharge its obligations and liabilities within a reasonable time and if necessary, undertakings are to be obtained from the Managing Director, Director or other persons, incharge of the Management of the Company. 18. The Learned Counsel for the Appellant, points out that the Appellant had filed Returns for the earlier years and it can be seen that the Appellant has Assets and Liabilities , and as such, the Respondent had failed to comply with the ingredients of Section 248(6) of the Companies Act, 2013. 19. The other contention advanced on behalf of the Appellant, is that the Appellant had purchased Lands by investing substantial money , to be utilised for further Business Activities and more importantly, the Loans taken for purchasing these lands is required to be paid off, for which the revival of the Appellant / Company is necessary. 20. The Learned Counsel for the Appellant points out that the exclusion period provided for in the suo moto order of the Hon ble Supreme Court, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 wherein at paragraph 12 it was held that the Company Court has the power to order restoration of the Company s name to the Register of Companies on the application made by the Company itself or its Member or Creditor. It has also be observed therein that such an application can be made at any time before the expiry of 20 years from the publication of the notice for striking off the name published in the official gazette. Also it was observed that there are only two circumstances in which the Company Court can exercise the power; the first is when it is satisfied that the Company was, at the time of the striking off of its name from the Register, carrying on business or was in operation; the second circumstance is when it appears to the Company Court that it is otherwise just that the name of the company be restored to the Register. 29. The Learned Counsel for the Appellant relies on the decision in M.A. Panjwani s case, wherein at paragraph 15 it was held that the presence of the words or otherwise denotes that even if the Company was not carrying on any Business or was not in operation at the time of striking off , it is still open to the Company Court to order resto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister of Companies. A step as stringent as what has been taken at least required an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should reuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight. 34. The Learned Counsel for the Appellant seeks in aid of the decision in Manmohan Singh Anand v. Registrar of Companies NCT of Delhi and Haryana Anr. Reported in 2023 SCC OnLine NCLAT 86 wherein at paragraph 11 it is observed as under:- After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Appellant Company was in some disputes and death of the Managing Director, the company could not file its Annual Returns. Further, the Appellant Company has regularly paid payment of Taxes and having valid Sale Deeds dated 20.09.1972, 20.12.1972 21.03.1975 and the Municipal Corporation of Faridabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struck off the name of the Applicant s company non-filing of the statutory annual returns i.e. FY 2016-17 and 2017-18. 38. According to the Appellant, the Petitioner/Appellant/Company had filed Returns for earlier years and there are Assets and Liabilities for the Petitioner/Appellant Company and the Respondent had failed to fulfill the requirements as per Section 248(6) of the Act. Therefore, it is the contention of the Petitioner/Appellant had failed to fulfill the ingredients of Section 248(6) of the Act and as such, the action taken by the Respondent is an illegal one. 39. It is the version of the Appellant, that during the course of hearing of main Company Petition the Respondent had not served its Reply upon the Appellant, and as such the Appellant, was unaware of the stand taken by the Respondent / ROC, Orissa. In any event, the statute (Companies Act, 2013) provides that an order of this Tribunal , can be rectified as per Section 420(2) of the Companies Act, 2013 of course within a period of two years. In the instant case, the application was filed pursuant to the order of the High Court dated 23.12.2021. 40. The Learned Counsel for the Appellant points out the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly preceding last Financial Years and has not made any application within such period for obtaining the status of a Dormant Company under Section 455 of the Companies Act, 2013 and issued Notice in Form No. STK-1 under Section 248(1)(c) of the Companies Act, 2013 to the Company enquiring whether the said Company was carrying on any business or was in operation, but no reply to the said Show Cause Notice was received by this Office. Subsequently this office published in the Official Gazette and Newspaper for the information of the general public regarding Strike Off the name of the said company if Form No. STK-5/5A. Finally, after the expiry of the time mentioned in the above notice the Registrar Struck Off the name of aforesaid Company from his Register and published the same in Form No. STK-7 in the Official Gazette dated 02.11.2019 and on the publication of such Notice in the Official Gazette, the Company stood dissolved on and from 24.10.2019. The Hon ble NCLT, Cuttack Bench may consider the application/petition preferred under Section 252 of the Companies Act, 2013 on its own merits as deemed fit and proper. 47. It is not out of place for this Tribunal to make an apt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules concerns with the Rights of a Party to appear before the Tribunal . 51. It cannot be forgotten that Section 420 of the Companies Act, 2013 is subject to limitation. It is worth to refer to a decision of Hon ble Supreme Court in Lilly Thomas v. Union of India reported in AIR 2000 SC 1650, 1668 wherein it is observed that power to rectify or amend the order is exercised to remove the mistake, without disturbing its finality. 52. In the judgement of this Tribunal dated 19.07.2017, in Company Appeal (AT) No.206/2017 and Company Appeal (AT) No.221/2017, in APC Credit Rating Pvt Ltd V. ROC, NCT of Delhi and Haryana wherein at paragraph 15 it is observed as under:- 15. As per sub-section (3) of Section 421, every appeal is required to be filed under sub-Section (1) within 45 days from the date on which the copy of the order of the Tribunal is made -available to the person aggrieved; As the Appellate Tribunal is empowered to entertain an appeal after expiry of the said period of 45 days from the date of receipt of the order but such power can be exercised only within a further period not exceeding 45 days that is total 90 days. If order(s) dated 26th September, 2.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary power conferred upon the Appellate Authority does not authorise the Appellate Authority to fill the gap in question. 59. As far as the present case is concerned, the Appellant, had not preferred an application for amendment but he preferred the CA 15/CB/2023 in CP/69/CTB/2020 seeking to receive additional documents by the Tribunal and to consider the revival of Company. In this connection, the CA 15/CB/2023 in CP/69/CTB/2020 filed by the Petitioner/Appellant before the Tribunal latently and patently indicates that the Hon ble High Court had given permission to the Appellant/Petitioner to prefer an amendment application but the Appellant / Petitioner had prayed for the receipt of additional documents by the Tribunal, to revive the Company which relief is outside the purview of the High Court s Order. 60. On a careful consideration of Appellant s contentions this Tribunal on going through the impugned order dated 08.08.2023 in CA 15/CB/2023 in CP/69/CTB/2020 passed by the Tribunal is of the considered view that additional evidence is not to be accepted by this Tribunal just because the documents / evidence will tilt the decision in Petitioner/Appellant s favour. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany was in operation and doing any business during the relevant time. Also available details do not suggest that the Company has anybody in its employment . 67. In view of the clear cut and candid observations made by the Tribunal in CP(Appeal)No.69/CTB/2020 dated 21.08.2020 as mentioned SUPRA the contra pleas of the Appellant that it engaged part time employee to file the Annual Return before ROC and the said employee had left the Company because of unknown reason to the Appellant and as such, the statutory return could not be filed on time for Financial years 2016-17-18 etc. are unworthy of acceptance as held by this Tribunal . 68. Be that as it may, on a careful consideration of the Appellant s contentions, this Tribunal , on going through the impugned order dated 08.08.2023 in CA 15/CB/2023 in CP/69/CTB/2020 is of the considered view that the Appellant had not filed CA 15/CB/2023 in CP/69/CTB/2020 within the two years period as envisaged under Section 420 (2) of the Companies Act, 2013 and in fact had filed the CA 15/CB/2023 in CP/69/CTB/2020 before the Tribunal 16.12.2022, after the lapse of two years period on 16.12.2022. Therefore, the Tribunal had rightly op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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