9911796707
TMI Blog2024 (2) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... o rectify the mistake if it is apparent on record. The applicant has not point out any apparent mistake appeared in the dismissal order of this Tribunal dated 21.08.2020 instead he prayed to receive additional documents on record and grant the relief prayed in dismissal C.P. No. 69/CTB/2020. The prayer of the applicant is beyond the scope of amendment. The order passed on merit dated 21.08.2020 not set aside by Higher forum, the order is still in force. The C.P. No. 69 of 2022 is not pending hence the question of receiving additional documents in disposed petition/proceeding does not arise. On the applicant side not brought to notice of this Tribunal any apparent mistake appeared in the dismissal order dated 21.08.2020. The High Court granted permission to the applicant to file 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratum at the time of 'striking off'. 8. The Learned Counsel for the Appellant brings it to the notice of this Tribunal, that Appellant/Company was a 'Going Concern' and doing 'Business Operations' during the period of 'Default' even going by the audited Annual Accounts viz. the Profit & Loss Accounts of the Company, in respect of the Financial Years 2016-2017 and 2017-2018, the 'Bank Accounts' statements of the Appellant / Company and the 'Income Tax Returns' of the Appellant Company. 9. The Learned Counsel for the Appellant points out that the Appellant, was not served with any Notice/Order Striking Off and 'no opportunity of hearing' was provided by the Respondent, by adducing evidence, to demonstrate that it was in operation. 10. The Learned Counsel 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Learned Counsel for the Appellant points out that the Tribunal, on its own, expanding the permission given by the Hon'ble High Court and order is an erroneous one, which is liable to be set aside. Also, it is the stand of Appellant that, the 'Tribunal' had failed to appreciate that the object of Section 252(3) of the Companies Act, 2013 is to give a chance to the 'Company', its 'Members' and 'Creditors' to revive the Company, which was 'struck off' by the Respondent / ROC, within a period of 20 years and to provide them an opportunity to carry on the business. 17. The Learned Counsel for the Appellant takes a stand that the Respondent and the 'Tribunal', had failed to consider the ingredients of Section 248(6) of the Companies Act, 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 Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant and ignored the meritorious grounds projected by it. 26. The Learned Counsel for the Appellant points out that as per the Hon'ble Supreme Court of India, the Limitation was to be excluded from 15.03.2020 to 28.02.2022, as per decision of Hon'ble Supreme Court in 2022 3 SCC at pg 117 (vide para 5.1). 27. The Learned Counsel for the Appellant, while praying for setting aside the impugned order passed by the Tribunal in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 and to allow the instant Appeal, in the interest of justice. The Appellant's Side Decision 28. The Learned Counsel for the Appellant refers to the decision in M.A. Panjwani v. Registrar of Companies, 2013 SCC online Del 4863 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 circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 27,822 square yards, from the U.P.S.I.D.C., being Plot No. 2/1, in Sahibabad Industrial Area, Sahibabad, Ghaziabad, U.P. vide lease deed dated 15th July, 1972 shows that the Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Company is not carrying on any business or operations." 33. The Learned Counsel for the Appellant adverts to the decision in Neotech Engineers Private Limited v. Registrar of Companies, Uttar Pradesh reported in 2021 SCC OnLine NCLT 399 wherein it is observed as under:- "The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register 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 inappropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea of the Petitioner/Appellant in CA No. 15/CB/2023 in main CP No. 69/CB/2020 that the Respondent / ROC initiated proceedings under Section 248 (5) of the Companies Act, 2013 but failed to consider Section 248 (6) of the Companies Act, 2013 which mentions that the Respondent shall satisfy himself that sufficient provision was made for realisation of all the amounts due to the company and for payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company. In the present case, the respondent has 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e put to 'strict proof' whether it was in operation at the time of 'striking off'. 45. In CP(Appeal) No. 69/CTB/2020 on the file of NCLT, Cuttack, the Appellant/Petitioner had prayed for a direction being issued to the Respondent to revoke the impugned order. 46. Before the Tribunal the Respondent/ROC had mentioned the following in its Report which proceeds as under: - "The Company was not filing its Statutory Returns i.e. Balance Sheets and Annual Returns since the Financial Year ended 31.03.2017, hence, the Registrar having reasonable cause to believe that the above named Company is not carrying on any business or in operation for a period immediately 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, rectification order can be passed in respect of mistakes which are patent on record and not mistakes which may be discovered by process of elucidation or any debate, in the considered opinion of this 'Tribunal'. But such power cannot be exercised to review an order or judgement in the absence of clerical or arithmetical matter. Rule 155 of the NCLT Rules, 2016 provides for 'General Power of Remand'. 50. Indeed, Rule 20 of NCLT Rules, 2016, lays down the procedure 'for institution of proceedings, petition, Appeals' before the Tribunal. Rule 44 of the NCLT Rules, 2016 pertains to hearing of petition or applications. Rule 45 of 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vival of Company' An Appellant cannot claim as a matter of right to produce the document or examine any witness before the 'Appellate Authority' undoubtedly, the 'Discretion' to receive any document/evidence rests with the Appellate Authority/Court. 58. To be noted that the power of a Tribunal to permit 'Additional' evidence to produce / documents is in the jurisdiction of the Appellate Authority. A document not relevant for deciding the question of controversy in a given proceeding / suit is not to be accepted as additional evidence. Also, if there is any gap or lacuna in evidence to be filled up, the discretionary 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Company was carrying any business or was in operation'. 65. It is not out of place for this Tribunal to make a pertinent mention that the Respondent/ROC through its letter dated 16.03.2020 had categorically made a mention that the 'Petitioner' may be put to strict proof of the contentions made therein that at the time of its striking off the company was in operation'. 66. Continuing further the Tribunal in CP(Appeal)No.69/CTB/2020 through its order dated 21.08.2020 had at para 11 proceeded to observe that 'details/documents furnished alongwith the application do not suggest that the company 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 'unwor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
