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TMI Blog2024 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 70/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. 70 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 order there is no whisper about production of additional documents and the reviv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was not doing Banking/Business Transactions when its name was struck off from the 'Registrar of Companies'. 8. According to the Appellant, the copies of Company Petition, Bank Statements, Audited Balance Sheets and Annual Returns for the Financial Years 2016-2017 and 2017-18, 2018-19 were annexed to the 'Company Petition' to exhibit that it was in operation all along and undertook to file the outstanding statutory Annual Returns and Financial Statements for the period 2016-2017 and 2017-18, 2018-19 along with the fees and additional fees as applicable in the event of the Company was revived. 9. The Learned Counsel for the Appellant points out that there was blatant negation of the principles of natural justice, in as much as the 'Objections' filed by the Registrar of Companies (Respondent) were not given to the Appellant and 'No Opportunity' was given to the Company to explain and furnish proof in regard to its being in operation at the relevant time. 10. It is the version of the Appellant that the Leka Consulting Services Private Limited (Appellant in Comp. App. (AT) No. 228/2023) had preferred W.P. (C) No. 35437 of 2020 assailing the order dated 21.08.2020 passed by the NC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Appellant / Company was not a 'Going Concern' and was not doing any 'Business Operations'. 16. The Learned Counsel for the 'Appellant' takes a fervent plea that the Appellant had purchased 'Lands' by investing substantial money which was to be utilised for further 'Business Activities' and the 'Loans' taken for purchasing these Lands was required to be 'Paid off' for which 'Revival' of the Appellant / Company is necessary. Also, that the Appellant / Company had given 'Loans' to another corporate entity, which becomes impossible to recover unless and until the Appellant / Company is revived. 17. It is the stand of the Appellant/Company that the Respondent /ROC and the 'Tribunal', had failed to appreciate that the ingredients of Section 248(6) of the Companies Act, 2013 mentions that the Respondent/ROC shall satisfy itself that sufficient provision was made for realization of all the amounts, due to the Company and for payment and discharge of its liabilities and obligations, within a reasonable time and if necessary, undertakings are required to be obtained from the 'Managing Director', Director or other persons incharge of the Management of the Company. 18. The Learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the requisite fee as well as additional fee as applicable on the date of actual filing of the documents) on the basis of an affidavit filed by the said Company that the non-filing of the Annual Return and the Balance Sheets was because the part time Accountant of the said Company, who was dealing with the aforesaid work, left the employment of the Petitioner Company. 23. The Learned Counsel for the Appellant seeks in aid of the decision in Suneil Bhende V. Registrar of Companies in 2018 SCC OnLine NCLT 22132 wherein it was observed that the relevant documents, which are to be filed, are ready with the Company and the Company is willing to file the same if so permitted. That the Petitioner had enclosed the Audited Report and Financial Statement for the relevant years with the petition to show that the Company was in continuous operation. It was held that it would be just and proper to order restoration of the name of the Company, in the register of Companies maintained by the Registrar of Companies. 24. The Learned Counsel for the Appellant points out that the CP 70/CB/2020 was filed by one of the Directors of the Company, for revival of the Company on 26.02.2020 and the COVID ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other plea of the Appellant is that the substantial justice when it is pitted against technicalities, the former will prevail and in the instant case, the Appellant / Petitioner is able to prove a strong case for restoration of the Company. Appraisal 32. Before the National Company Law Tribunal, Cuttack Bench, the Petitioner/Appellant had filed IA No. 19/CB/2023 in CP/70/2020 (u/s 252(3) & (420) of the Companies Act read with Rule 11 of NCLT Rules, 2016) wherein he had prayed for reception of additional documents and to consider the revival of the Company. 33. According to the Petitioner/Appellant, the Respondent / ROC had initiated proceedings u/s 248 of the Companies Act, 2013, for the purpose of striking off the name of the Company from the Register maintained by the Respondent. 34. It is the stand of the Appellant that the Respondent / ROC had not followed the procedure u/s 248(1) of the Companies Act, 2013, 'Notices' u/s 248(1) were not sent and now had proceeded to issue notice u/s 248(5) of the Act, publishing the name of the Appellant/Petitioner Company in the official gazette on 2-8 November, 2019. 35. It is projected on behalf of the Appellant that the accounts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to recover unless and until the Appellant / Company/Petitioner, is revived. 39. The submission of the Appellant is that the Tribunal had failed to take note of the ingredients of Section 248(6) of the Companies Act, 2013 which mentions that the Respondent shall satisfy itself that sufficient provisions was made for realisation of all the amounts due to the Company. 40. The Learned Counsel for the Appellant cites the decision in Jagjit Singh Suri v. Registrar of Companies and Anr. Reported in 2023 SCC OnLine NCLAT 118 wherein at paragraph 11 it is observed as under:- "In view of the fact that the Company is having a large plot of land approximate area of 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." 41. 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 obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aptly pointed out by the Tribunal that for the purpose of 'rectification' of 'any order' under Rule 154 of the NCLT Rules, 2016, it should relate to the case. In reality, the 'Rectification order' can be passed in regard to the mistakes which are patent on record and not mistakes which may be discovered by process of elucidation or any debate, as opined by this Tribunal. 45. 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'. 46. 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. 47. The Tribunal in the impugned order had observed that IA No. 19/CB/2023 in CP No. 70/CB/2020 was filed on 16.12.2022 after the lapse of two years period, from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 53. The power of a Tribunal, to permit additional evidence to produce/documents are within the jurisdiction of the Appellate Authority. A document not pertinent to decide the dispute/controversy in a given proceeding/suit, is not to be accepted as Additional Evidence. Besides this, if there is any lacuna or gap 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. 54. In the instant Company Appeal (AT) No. 228 of 2023, it is worthwhile for this Tribunal to point out that in CP No. 70/CB/2020 the Registrar of Companies had filed a Report mentioning the following:- "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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed, when an individual does not satisfy the Court of Law / Tribunal that such evidence was not within the knowledge or could not be produced with 'Due diligence'. 58. As far as the present case is concerned, the Hon'ble High Court of Orissa on 14.10.2022 disposed of W.P. (C) No. 26971 of 2022, in terms of the order dated 23.12.2021 passed by the Hon'ble High Court of Orissa in W.P. (C) No. 35437 of 2020. 59. In fact, the Hon'ble High Court of Orissa had granted liberty to the Appellant in W.P. (C) No. 26971 of 2022 dated 14.10.2022 to prefer an amendment application, obviously as per Section 420 of the Companies Act, 2013 because of the fact that two years period had not expired. 60. In the present case, in CA 19/CB/2023 in CP 70/CB/2020 the IA was filed before the Tribunal on 16.10.2022 after the expiry of two year's period from the date of dismissal order dated 21.08.2020 in CP 70/CB/2020. 61. Be that as it may, on a careful consideration of the Appellant's submissions, this Tribunal on going through the impugned order in IA No. 19/CB/2023 in CP No. 70/CB/2020 dated 08.08.2023 is of the earnest opinion that the Appellant had not preferred IA No. 19/CB/2023 in CP No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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