Clementia Mining Private Limited ... vs Roc And Anr
- CitationCompany Appeal (AT) (Ins) No.539 of 2023
Ratio decidendi
The rule this decision rests on
The Tribunal set aside a dismissal for non-compliance where the non-compliance had been cured after the dismissal order and the Board's own affidavit disclosed no objection; the dismissal was therefore not sustainable on the record before the Tribunal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Clementia Mining Pvt. Ltd. ...Appellant Through the Liquidator
Vs.
Registrar of Companies of NCT of Delhi & Anr. ...Respondents
Present: Appellant: Mr. R. Gayathri Manasa, Advocate
Respondent: Mr. B. Rama Ambedkar, Astt. ROC
ORDER
(Hybrid Mode)
18.4.2024 - This Appeal challenges an Order dated 29th November, 2022
as under:-
"ORDER
Ld. Counsel appearing for the Applicant submits that they have not been able to comply with the order dated 24.05.2022. The ARoC appearing on behalf of the RoC confirms that the objection raised by the RoC regarding filing of Form MGT-14 still holds.
This Bench observes that the Ld. Counsel for the Appellant has not been able to comply with the order dated 24.05.2022 even after lapse of six months from the order. We also observe that no one represented the Applicant on 13.09.2021, 23.03.2022 and 06.10.2022. In view of the aforesaid conduct of the Applicant, this Bench is of the view that the Applicant is not serious to pursue the application.
The present (IB)-1133(ND)2020 is Dismissed for non- compliance."
2 The learned Counsel appearing on behalf of the Appellant submits Form
MGT-14 has since been filed before this Tribunal on 31st January 2024. This
being a case of voluntary winding up of the Company, Special Resolution has
already been filed with the learned Registrar of Companies of NCT of Delhi in
compliance of provisions of IBC and the entire process of liquidation, including
distribution of the monies to shareholders has since been completed and final
report as per Rule 38 of the Insolvency and Bankruptcy Board of India (Voluntary
Liquidation Process) Regulations, 2017 has also been filed and the liquidation
process thus cannot be reversed at this stage.
The learned AROC appeared for the Respondent and submits the ROC is
a proforma party and in fact the actual party is Insolvency Bankruptcy Board of
India.
However, the said Board has already filed an Affidavit dated 16th August,
2021 in the proceedings before the learned NCLT wherein it has not raised any
objection. Para 3 and 4 of the said Affidavit are reproduced below:-
"3. As per section 59(4) of the Code, the liquidator had informed the Board on 30th November 2017 about commencement of the voluntary liquidation of the corporate debtor in the instant case. Further, in terms of regulation 38(2) of the Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process) Regulations, 2017 the liquidator had sent final report to the Board vide email dated 24th December 2020.
4. That neither any action is contemplated by the Board, nor any action is pending against the liquidator before it. Board has no observation against the dissolution of the corporate debtor."
Company Appeal (AT) (Ins) No.539 of 2023 3
In the circumstances, the Order dated 29th November, 2022 is set aside.
The matter may be listed now before the learned NCLT for further proceedings
on 6th May, 2024.
The Appeal stands disposed of. Pending Applications, if any, also stand
disposed of.
[Justice Yogesh Khanna] Member (Judicial)
[Mr. Ajai Das Mehrotra] Member (Technical) rs/md
Company Appeal (AT) (Ins) No.539 of 2023
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