TMI Blog2020 (11) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... operations. Direction issued to the Appellant / ROC, West Bengal to restore the name of the Company (M/s Goouksheer Farm Fresh Pvt. Ltd.) (First Respondent - in Appeal) for completion of Corporate Insolvency Resolution Process effectively in the register of Companies cannot be found fault with. However, the further direction issued by the Tribunal, to the Appellant not to levy any fee / penalty to the Company because Company is in Corporate Insolvency Resolution Process is legally untenable - appeal allowed. - Company Appeal (AT) No. 127 of 2020 - - - Dated:- 19-11-2020 - [Justice Venugopal. M] Member (Judicial) And [Kanthi Narahari] Member (Technical) For the Appellant : Mr. Sumit Kumar Jaiswal, Mr. Priyanshu Upadhyay and Mr. Kumar Anurag Singh, Advocates For the Respondent : Mr. Sanjeev Jhunjhunwala, Mr. Soumya Dutta (IRP) and Mr. Rahul Parasrampuria (CS) JUDGMENT Venugopal M. J Introduction The Appellant has filed the instant Company Appeal being dissatisfied with the order dated 22.01.2020 passed by the National Company Law Tribunal , Kolkata Bench, Kolkata in C.P. No. 183/KB/2020 whereby the Company Petition was allowed with necessary di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal through order dated 22.01.2020 disposed of the C.P. No. 183/KB/2020 ordering restoration of the Company with the direction to the Appellant not to levy any fee / penalty to the Company because of the fact that the Company is in Corporate Insolvency Resolution Process . 7. Assailing the Correctness, validity and legality of the impugned order dated 22.01.2020 passed by the Tribunal, the Appellant / Authority has preferred the instant Appeal contending that Section 403 (1) of the Companies Act, 2013 specifies that any document required to be filed under the Act shall be filed within the time prescribed in the relevant provisions on payment of such fee as may be prescribed. Appellant s Submissions 8. The Learned Counsel for the Appellant submits that as per first proviso to Section 403(1) of the Act, any document, fact or information required to be submitted, filed, registered or recorded, as the case may be, under Section 92 or 137 is not submitted, filed, registered or recorded, as the case may be, within the period provided in those Sections, without prejudice to any other legal action or liability under this Act, it may be submitted, filed, registered or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 31.03.2015 and Annual Returns only upto the year 31.03.2016. 14. It is represented on behalf of the Appellant that the second Respondent (IRP) has no locus standi to file an application for restoration of the Company u/s 252(3) of the Companies Act, 2013. Besides this, it is the plea of the Appellant that restoration of Company is not required for recovering the dues or carrying out Corporate Insolvency Resolution Process or Winding Up proceedings of the struck off Company as per Sections 248(8) and 250 of the Companies Act, 2013. 15. In effect, it is the prime stand of the Appellant that the Tribunal had no jurisdiction in issuing a direction to the Appellant to waive the payment of fee / penalty and any such endeavour would be devoid of Law. Second Respondent s Pleas 16. Section 403 of the Companies Act is to be referred and / or taken into consideration only at the time of filing of any documents, records which is required to be filed under this Act. Further, Rule 14 of National Company Law Tribunal Rules, 2016 empowers the Tribunal to exempt the parties from compliance with any requirement of these Rules. 17. Moreover, Rule 11 of the NCLT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant Appeal is well within the period of limitation. 22. Taking into consideration of the aforesaid sufficient pleas of the Appellant in a careful, cautious, practical, meaningful and pragmatic manner, when no lack of bonafides or inaction or negligence is attributable to the Appellant, this Tribunal, by resorting to a result oriented approach and avoiding a pedantic approach without any haziness holds that the instant Appeal filed by the Appellant is well within the period of limitation. 23. It is to be pointed out that there are two circumstances in which the Tribunal can exercise power to restore the name of the Company (i) when it is satisfied that the Company was at the time of striking off its name from the register, carrying on business or was in operation. (ii) When it appears to the Tribunal that it is otherwise just that the name of the Company be restored as per decision M.A. Panjwani V. Registrar of Companies and Ors. reported in (2015) 124 CLA 109(Delhi). 24. At this stage, this Tribunal amply points out that the Hon ble Supreme Court in the decision Helen C. Rebella V. Maharashtra S.R.T.C. reported in (1999) 1 SCC at page 90 had observed that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atever be the rights of a person who pays money under a contract for services to be rendered but subsequently declines the services, we do not think that, in the absence of a provision to that effect in the statute concerned, a person paying a fee under a statute has the right to get back the fee because he no longer wants the services for which the fee was paid. Whether he would have a cause of action for damages or for compelling the services, if the services are improperly declined, is an altogether different question. 28. In the decision Ascot Shoes Private Limited V. Registrar of Companies reported in (2017) 2 CompLJ118(Del) wherein at paragraph 12 it is among other things observed as under:- 12 At the same time, however, there is no gainsaying the fact that a greater degree of care was certainly required from the petitioner Company in ensuring statutory compliances. Looking to the fact that annual returns and balance sheet were not filed for almost fourteen years, the primary responsibility for ensuring that proper returns and other statutory documents are filed in terms of the statute and the rules, remains that of the management. and ultimately the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the statute. 34. One cannot brush aside a primordial fact that there is no provision under the Companies Act, 2013 which permits the Appellant to file the documents sought to be registered /filed under the Companies Act without payment of the requisite filing fee and / or payment of additional fee. To put it cocksurely, there is no express / enabling for waiver of fees / penalty under the Companies Act. 35. It is to be remembered that Rule 12 of Companies (Registration Offices and Fees) Rules, 2014 says that the documents required to be submitted, registered or recorded or any fact or information required or authorised to be registered under the Companies Act shall be submitted, filed, registered or recorded on payment of the fee or on payment of such additional fee as applicable, as mentioned in table annexed to the Rules. 36. One cannot remain oblivious of the fact that, against the First Respondent / Company Corporate Insolvency Resolution Process was initiated by a Financial Creditor / P.M. Cold Storage Pvt. Ltd. in CP IB 1582/KB/2019. 37. An Appeal can be filed by a person aggrieved by the Registrar of Companies Order notifying the dissolution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason that the procedural wrangle cannot be permitted to be shaked or shackled with. Therefore, the contra stand taken on behalf of the second Respondent is not acceded to by this Tribunal. 42. For the foregoing detailed discussions and ongoing through the impugned order of the Tribunal in C.P. No. 183/KB/2020 dated 22.01.2020, this Appellate Tribunal, comes to a resultant conclusion that the issuance of direction to the Appellant / ROC, West Bengal to restore the name of the Company (M/s Goouksheer Farm Fresh Pvt. Ltd.) (First Respondent - in Appeal) for completion of Corporate Insolvency Resolution Process effectively in the register of Companies cannot be found fault with. However, the further direction issued by the Tribunal, to the Appellant not to levy any fee / penalty to the Company because Company is in Corporate Insolvency Resolution Process is legally untenable, especially in the absence of any express provision under the Companies Act, 2013 and the relevant Rules for waiver of fees / penalty in respect of filing of documents required to be registered / filed under the Companies Act and the said direction is set aside by this Tribunal, to secure the ends of su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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