TMI Blog2024 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... - NATIONAL COMPANY LAW TRIBUNAL CUTTACK] 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 - In fact, 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. As a matter of fact, the production of Additional Evidence, is not to 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 . This Tribunal on going through the impugned order is of the earnest opinion that the Appellant had not preferred IA No. 19/CB/2023 in CP No. 70/CB/2020 within a two years period, as enjoined as per Section 420(2) of the Companies Act, 2013 and indeed, the IA No. 19/CB/2023 in CP No. 70/CB/2020 came to be filed before the Tribunal on 16.12.2022 after a lapse of two years period on 16.12.2022. Therefore, the Tribunal had rightly opined that IA No. 19/CB/2023 in CP No. 70/CB/2020 was not to be considered in regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, the application is devoid of merits both on law and facts and liable to be dismissed. and resultantly dismissed the Application. Appellant s Contentions 3. The Learned Counsel for the Appellant submits that the impugned order dated 08.08.2023 in IA No. 19/CB/2023 in CP No. 70/CB/2020 passed by the National Company Law Tribunal, Cuttack Bench is an erroneous one and that the Tribunal had misinterpreted the meaning and purport of Liberty granted to the Appellant, by the Hon ble High Court of Orissa. 4. According to the Learned Counsel for the Appellant the Appellant / Company was an active Company ever since its incorporation and was maintaining all the requisite Books of Accounts, in terms of the provisions of the Companies Act, 2013. Moreover, Notice of Striking off and Dissolution in Form No. STK-7 was issued dated 23.10.2019 as per Section 248(5) of the Companies Act, 2013 by the Registrar of Companies , pertaining to various Companies, among which the Appellant s name was also found. 5. On behalf of the Appellant, it is represented that before any notice issued, as per Section 248(5) of the Companies Act, 2013 was served on the Appellant/Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Appellant might approach the Ld. NCLT, Cuttack to contend that the impugned order be amended on the Tribunal not having allowed the Appellant to adduce evidence of the company being in operation, in context of the report having said that the Tribunal , is satisfied, it may amend the impugned order. It was observed in conclusion that the Appellant herein has not preferred an Appeal and, therefore, is still entitled to approach the Tribunal. 12. According to the Appellant, it filed a CP 47/CB/2022 on 24.06.2022 before the NCLT Cuttack, which was later withdrawn on 20.09.2022, with liberty to prefer necessary petition as per Hon ble High Court s order of Orissa dated 23.12.2021. Likewise, petition in CP 48/CB/2022 was filed on 24.06.2022 before the NCLT Cuttack, in the matter of Leka Consulting Services Pvt. Ltd . (Appellant in Comp. App. (AT) No. 227/2023), wherein a similar withdrawal order, with liberty was passed by the Tribunal on 20.09.2022. 13. According to the Appellant, it filed a W.P. (C) No. 26971 of 2022 dated 12.10.2022 before the Hon ble High Court of Orissa, Cuttack questioning the order dated 21.08.2020 passed by the NCLT Cuttack in CP No. 70/2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfy the requirement of Section 248(6) of the Companies Act, 2013. As such, the action taken by the Respondent / ROC is untenable in Law. 19. The Appellant comes out with a stand that the object of Section 252(3) of the Companies Act is to provide a chance to the Company, its Members and the Creditors to revive the Company which was struck off by the Registrar of Companies within a period of 20 years and to provide them an opportunity to carry on the Business. The Appellant s Citations 20. 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 circumstances in which the Company Court can exercise the power; the first is when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant that CP 70/CB/2020 on the file of the Tribunal was heard through only virtual mode because of COVID 19, which was just newly started and further the ROC s report was neither provided to the Appellant. 26. Moreover, according to the Appellant, it mistakenly filed another CP/47/CB/252/2023 under the Companies Act, 2013, before the Tribunal instead of preferring an application in the previous CP 70/CB/2020. In any event, the CP/47/CB/252/2023 was filed, within two years from 21.08.2020, when the first CP 70/CB/2020 was dismissed. 27. The Learned Counsel for the Appellant points out that the Tribunal had not non-suited the Appellant on the ground of limitation and in fact, the Hon ble Supreme Court had already provided for in the suo moto order the exclusion period and in terms of Section 14 of the Limitation Act, 1963, the period of pendency before the Hon ble High Court from 12.10.2022 to 14.10.2022 = 3 days and the pendency before the Tribunal in CP/47/CB/252/2023 was for 88 days from, 24.06.2022 to 29.02.2022 aggregating in all 91 days. 28. The Learned Counsel for the Appellant points out that till date the Registrar of Companies Report was not given to the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns with the office of the Registrar of Companies and had not revealed this fact to the Directors of the Petitioner/Company. Also, that it was only in October, 2019 when the Balance Sheet and the Auditor s Report in respect of the years 2018-19 were ready to be filed with the Respondent and the fact of non-filing of Annual Return and Balance Sheet for the financial year 2016-2017 and 2017-18 and other documents with the Respondent came to the knowledge of the Petitioner / Company as well as the fact that the Petitioner /Appellant s Company s name was struck off from the Register maintained by the Respondent / ROC. 36. The clear cut stand of the Appellant is that the object of Section 252(3) of the Companies Act, 2013 is to provide a chance to the Appellant / Company his members and Creditors to revive the Company which was struck off by the Registrar of Companies within a period of 20 years and to give them an opportunity of carrying on the Business only after the Tribunal was satisfied that such restoration was necessary in the interest of justice. 37. The Appellant/Petitioner in CA 19/CB/2023 in CP/70/CB/2020 had averred that in the event of the revival of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 inappropriate penalty for that oversight. 42. 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 Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Petitioner/Appellant had filed IA No. 19/CB/2023 in CP No. 70/CB/2020 before the Tribunal, praying for the reception of Additional Documents and to consider the revival of Company. As a matter of right, the Appellant cannot claim to produce the document or examine any witness, before the Appellate Authority. No wonder, the discretion to receive any document/evidence rests with the Appellate Authority. 49. 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 No. 70/CB/2020 on 08.08.2023, at para No.13 had clearly observed that before striking off the name of the company from its register, ROC, had issued a show cause notice to the Company enquiring whether the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued 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. 55. In so far as the present case is concerned, the Appellant / Petitioner had not filed an Interlocutory Application praying for an amendment but he chose to file IA 19/CB/2023 in CP/69/CTB/2020 seeking to receive additional documents by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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