Everest Pharmaceutics Pvt Ltd vs Office Of Registrar Of Companies, ...

For Appellant: Mr. Avik Chaudhuri, Mr. Soumya Dutta, Advocates. For Respondents: Mr. vikrant N goyal, Mr. Rohit Gupta, Advocates.

JUDGEMENT

(10 AUGUST, 2023) th

JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL)

The present appeal has been preferred under Section 421 of

the Companies Act, 2013 against an order dated 25.02.2020

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passed in Appeal No.1375/KB/2019 by the National Company

Law Tribunal, Kolkata Bench (hereinafter referred to as NCLT). By

the said order the appeal preferred by the Appellant under Section

252 (3) was dismissed. For better appreciation it is necessary to

reproduce order dated 25.02.2020 as follows:-

"1. This is an Application filed under section 252 (3) of the Companies Act, 2013 thereinafter, the Act) by one of the Shareholders of Everest Pharmaceutics Private Limited (hereinafter, the Company) for restoration of name of the Company struck off by the Registrar of Companies, West Bengal (hereinafter, the RoC).

2. The Appellant submits that:

a) The name of aforesaid company is incorrectly shown as Everest Pharmaceuticals Private Limited in the register(s)/records/master data maintained by the Registrar of Companies (West Bengal), Kolkata and needed to be rectified/corrected by them.

b)That the aforesaid Company was incorporated under Companies Act, 1956 as a Private Limited Company. The authorised Share Capital of the Company is Rs. 5.00.000 divided into 5,000 equity shares.

c)The Registrar of Companies, West Bengal, ie. the Respondent, struck off the Company's name from the Register due to defaults in statutory compliance.

namely, failure in filing the Financial Statements and Annual Return from the financial years ending 31.03.2000 till 31.03.2019.

d) The Company did not receive any notice(s) pursuant to sub-section (1), (2) and (3) of Section 560 of the Companies Act, 1956 from the Respondent, however, it had received the final notice duly issued by the Respondent pursuant to sub-section (5) of Section 560 of the Companies Act, 1956, dated 28.05.2008. The Company was unable to comply with its statutory filings due to critical health condition of Mr. Tapan Dhar, the Key Managerial Personnel (hereinafter, KMP), one of the Directors of the struck off Company since 2017. Moreover, the management was unaware of the fact that the Company has been defaulting in its statutory compliance with the RoC as the professional appointed, entrusted and authorised with the task to look after and complete the statutory compliance neglected its responsibility and did not do his job, he neither informed or intimated about such situation to the Company,

e) The Company is carrying on its business as stated in its Memorandum and Articles of Association since its incorporation except, its manufacturing

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operations have been hampered and halted since September, 1999 due to an unjustified and unlawful strike of its workers union causing a The Company is a going concern which is evident from its various documents/statements/bills/records issued at the address of the Registered Office and books of accounts including audited Balance Sheets for all the periods since its inception which were regularly prepared and maintained.

f) The Company was also allotted a land by the Government of West Bengal on a lease of 999 years for the purpose of setting up a manufacturing unit in the year 2009, the construction plan at the said land has also been approved by the Government authorities and the construction was/is supposed to start/resume immediately but the Company has not been able to do so due to it being struck off by the RoC.

3. Notice of this Appeal was served on the Regional Director, Eastern Region, RoC and Income Tax Authority. In pursuance of the service of notice. ROC West Ben3al appeared in the matter and submitted, through its report dated 04.11.2019, as follows.

a) The Petitioner's claims that he is one of the Shareholders of the Company, cannot be verified since the Company has not filed any return of allotment with the office of Registrar of Companies, West Bengal

b)The competent authority has struck off the name of the Petitioner Company under Section 560 of the Companies Act, 1956 since he had reasonable cause to believe that the Company was not carrying on business or in operation.

c)It is evident from the record that the Company has not filed its balance sheets and annual returns since financial year 31.03.2000 with the office of the Respondent As per Section 560(5) of the Companies Act, 1956 corresponding to Section 252 of the Companies Act, 2013 a struck off Company can be restored only on the direction of the Hon'ble NCLT before expiry of 20 years from the publication in the official Gazette of the notice. In this regard it is submitted that in terms of the said provisions, the Hon'ble NCLT while passing an order for restoration is to be satisfied that the Company is carrying business or is in operation. Copies of notice under section 560(1) 560(2) and 560(5) are attached and collectively marked as Annexure-A to the report.

d) As per the records maintained by the office of the Registrar of Companies:

West Bengal the Company was incorporated on 31.03.1961 and the aforesaid Company was struck off on 08.11.2012 after complying with the provision of section 560(5) of the Companies Act, 1956. The RoC has issued notice under section 560(5) of the Companies Act, 1956 for removal of name of the Company from the register of the Companies as there was reasonable cause to believe that the Company was not functioning or in operation for the period of several years.

e)Accordingly, it is submitted that if this Hon'ble NCLT on being satisfied that the Company was in operation at the time of striking off the name of the

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Company at all, directs the Respondent to restore the name of the Company, then there i be a direction upon the Petitioners to make up to date filing of all statutory documents and to make all legal compliances prescribed under the Companies Act, 1956/2013 immediately after restoration of the name of the Company,

4. We have heard both the parties and have gone through the record and proceedings of this case.

5. As per the record, the Appellant Company has admittedly committed default in filing the Annual Return and Balance Sheet from the financial year ending on 31.03.2000, and therefore, the Registrar of Companies, West Bengal had suo motu struck off the name of the Company from the Register and thus, the present Appeal.

6.The Appellant contends that the Company was carrying on its business and was in operation at the time of striking off of its name. The Ld. Counsel appearing for the Appellant referred to and relied on the Balance Sheet and Profit & Loss Accounts, for the years 2000-2001 to 2016-17. From perusal of the said documents it is clear that there has been no revenue generated in/by the Company since the date of its incorporation, it has been under losses and the only expense that the Company has been incurring are the general expenses and audit fees.

7.Section 252(3) of the Companies Act, 2013 confers upon the Tribunal ample power to order restoration of a Company whose name has been struck off from the Register of Companies, if the Company, at the time of its name being struck off was carrying on its business or was in operation or it is otherwise just that the name of the Company be restored on the register. It is significant to note the observations of the Hon'ble NCLAT in this regard in its order dated 9th July, 2019, in the matter of Alliance Commodities Pvt. Ltd. v. Office of Registrar of Companies, West Bengal (Company Appeal (AT) No. 20 of 2019):- Para 9 and 12 is extracted hereunder:

"9. This term "or otherwise" has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term "or otherwise cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company. A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression "or otherwise"

which would be a travesty of justice besides defeating the very object of the Company. Such course would neither be just nor warranted."

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12.As a result of the aforesaid discussion, it is inferred that there is no just reason to restore the Company's name on the Register of Companies. Since the Company seems to be not an active Company and not carrying on the business for which it was incorporated, the appeal is liable to be dismissed."

8.The facts in the instant case are similar to the facts in above-mentioned care Here in this case, the Company has not shown any revenue generation, or any business/commercial activities all through. In view of the above-said the prayer of the Appellant to restore the name of the Company in the Register of Companies maintained by the ROC, West Bengal cannot be granted. The Appeal is, therefore, dismissed with no order as to costs.

9. Urgent certified copy of this order, if applied for, be issued upon compliance with all requisite formalities.

2. In the Memo of Appeal at para 7.5 the appellant has stated

that the name of the company was erroneously struck off by the

Respondent on 08.11.2012 on account of alleged delay in filing of

Annual Return and Balance Sheet with the Registrar of

Companies, West Bengal, even when the said Appellant Company

was actively involved in business. The reason for delay in filing

appeal before the NCLT has been stated in para 7.6 where it is

stated that the delay was unintentional and company was unable

to comply with its statutory returns due to being kept occupied

with the critical health condition of Mr. Tapan Dhar, the KMP and

one of the Directors of the Company, for an elongated period of

time. The Management was unaware of the fact that the company

has been defaulting in its statutory compliance with the ROC as

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the professional appointed, entrusted and authorised with the task

to look after and complete the statutory compliances of the

company with the ROC, IT Department and other statutory

authorities neglected his responsibility and did not do his job and

neither informed or intimated or revealed about the situation to

the other officers of the company. It has been claimed that the

appellant company did not get information about the notification

regarding the "striking off" of the name of the appellant company

from the register of Registrar of Companies. Only when the

representatives of the appellant company tried to file/upload the

balance sheet and annual returns of the company it came to the

knowledge of the representative of the appellant company that the

name of the appellant company was struck of. Finally on checking

of the portal of the Ministry of Corporate Affairs for electronic filing

of statutory documents, the status of the company was shown as

"Strike off".

3. The appellant in its Memo of Appeal has further claimed that

the appellant company did not receive any notice or intimation

from the ROC regarding striking off the name of the company and

without providing any opportunity or any notice or providing

opportunity of hearing, the name of the company was wrongly

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struck off. Thereafter the appellant in the month of February,

2019 filed an appeal under Section 252(3) of the Companies Act,

2013 before the NCLT.

4. That the statement regarding filing of the company petition

under Section 252(3) of the Companies Act, 2013 in the month of

February, 2019 before the NCLT has been mentioned in para 7.11

of the Memo of Appeal. It has been further pleaded that before the

NCLT the delay in filing of the annual return of the company was

not deliberate as the same was the result of an inadvertent and

unintentional mistake and the company was unable to comply its

statutory returns due to being kept occupied with the critical

health conditions of Mr. Tapan Dhar, the KMP and one of the

Directors of the struck off company for an elongated period of time.

5. That the appellant alongwith in the Memo of Appeal has also

brought on record number of medical records of Mr. Tapan Dhar

which are at running page from 285 to 303. In para 7.16 of the

Memo of Appeal it has been reiterated that the appellant had

categorically brought to the notice of the NCLT that the appellant

company never received any notice or communication from the

Respondent regarding the proceedings for striking off the name of

the appellant company or about any such non-compliance. It was

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alleged that the Respondent/ROC even failed to comply with the

provisions of Section 248(6) of the Companies Act, 2013 before

striking off the name of the appellant company. It has also been

pleaded that no opportunity of hearing or curing the defects and

compliances were provided to the appellant company which was

the principle of natural justice and equity.

6. In para 7.18 of the Memo of Appeal it has been stated "that it

was brought to the notice of the Ld. NCLT, Kolkata that the accounts

of the Appellant Company were prepared and audited every year.

The copies of audited balance sheet, profit and loss accounts along

with auditor's report from Financial Year 1999-2000 onwards till

2018-2019 duly signed by the auditors and directors of the

Appellant company were annexed with the Petition filed by the

Appellant company, and also attached with the present appeal at

Page 76 to 283. The Appellant in the Memo of Appeal has also

stated that the attention of the NCLT Kolkata Bench was drawn

that the appellant company was being actively functioning which

was evident from the fact that the company was allotted a land by

the Govt of West Bengal on 999 years lease for the purpose of

setting up a manufacturing unit in the year 2009 and its

construction plan was also approved by the State Govt. The

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appellant was/is supposed to start/resume construction work

immediately, but not been able due to being struck off by the

Respondent. The appellant has also brought on record letter of

allotment of land with the present appeal which are at running

page 306 to 324. In para 7.21 of the Memo of Appeal the appellant

has made following statements:_

"The Appellant was unaware of the notification regarding

striking off the name of the company from the register of the

Respondent and as the appellant came to know the same,

immediately steps were taken and the representative of the

Appellant Company visited to the Registrar of Companies,

West Bengal to change the status of the Company from "Strike

Office" to "Active" so that the statutory compliances can be

made as per the requirement of the Act, but to no effect."

However, the Ld. NCLT by the impugned order has dismissed the

appeal.

7. Mr. Avik Chaudhuri, learned counsel for the appellant

submitted that the appellant company was incorporated under the

Companies Act, 1956 on 31.03.1961 and till the year 1999 filed all

balance sheets and statements before the Registrar of Companies.

However, thereafter due to the reasons which were beyond control

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of the appellant company such compliances were not done and on

20.05.2008 the company was struck off under the provisions of

Companies Act. He has drawn our attention to page 12 para 7.6

of the Memo of Appeal to highlight that due to critical health

condition of Mr. Tapan Dhar one of the directors of the company

for the long period statutory returns were not filed. He further

submits that the Management was not even aware about the such

default since the professional appointed and entrusted to take

such steps had completely neglected the same. Learned counsel

for the appellant has also drawn our attention to running page 285

to 303 to elaborate regarding the serious ailment of one of the

directors namely Mr. Tapan Dhar. He has also drawn our

attention to letter sent on behalf of the appellant company to the

ROC which is at running page 305 and submits that immediately

after coming to know the appellant approached the ROC with a

request to allow the appellant company to reopen the company.

He further submits that restoration of the name of the appellant

company on the register of ROC is also necessary due to the reason

that in one of the title suit decree has been passed against the

appellant company and as such for pursuing the said matter it is

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necessary to restore the name of the company on the register of

the ROC.

8. In sum and substance learned counsel for the appellant has

argued that striking off the name of the appellant company from

the register of ROC was in complete violation of principle of natural

justice. Accordingly it was submitted that the order impugned is

fit to be set aside and directions for restoring the name of the

company to the ROC may be issued.

9. Mr. Vikrant N. Goyal, learned counsel has appeared on behalf

of Respondent/ROC. At the very outset he submitted that the

appellant on oath in the present proceeding has made a false

statement. He has specifically referred to para 7.5 page 12 of the

Memo of Appeal. He submits that admittedly the name of the

appellant company was struck off in the year 2008 but the

appellant has made false statement as if the name of the company

was struck off on 08.11.2012. He further submits that no

government land was required to be registered in the name of the

appellant company in the year 2009, since its name was already

struck off in the year 2008. However, incorrectly the government

land was registered in the name of company in the year 2009.

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10. It has also been argued by Mr. Goyal, learned counsel for

ROC that since continuously balance sheets and returns were not

filed on behalf of the appellant company right from the year 2000

the learned ROC in strict compliance with the provisions contained

under Section 560(5) of the Companies Act struck off the name of

the appellant company from the register of the ROC. According to

learned counsel for the ROC there is no error in the impugned

order and appeal is fit to be rejected.

11. Besides hearing learned counsel for the parties we have

minutely examined the materials available on record and after

going through the same prima facie we are of the opinion that

learned NCLT has committed no error warranting interference and

the order impugned is fully justified with sufficient reason. On

examination of record and particularly running page 284 i.e.

notification No.ROC/WB/PC/SM07 dated 28.05.2008 it is evident

that the ROC exercising power under Section 560(5) of the

Companies Act, 1956 struck off the name of the appellant

company i.e. Everest Pharmaceuticals Pvt Ltd and the company

was dissolved. Even though striking off and dissolution order was

passed long back on 28.05.2008 the appellant did not take any

step or even approached the Authority for assailing the said order

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by filing an application under Section 560(6) of the Companies Act,

1956 for restoration of its name to the register. It is admitted case

of the appellant that after expiry of several years in the month of

December, 2017 the appellant filed an application before the ROC

wherein he requested for permitting him to reopen the company

immediately. The letter dated 08.12.2017 which is at running page

305 is reproduced hereinbelow:

"With reference to our earlier letter dated 14.09.1999 and the

copy of the same were subsequently deliver for the cause of

unjustified strike by the workman union unlawfully and

thereafter the company had no other alternative but to

declared strike with effect from 03.09.1999.

It is further stated that during the 'lock out' period the company

production has hampered and as a result the company is still

facing a financial disbalance for this unwanted situation.

In view of the above, unwanted situation we on the behalf of

the company would request your goodself to look into the

matter so that we may re-open the company immediately,

otherwise will be in a financial trouble for ever.

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Kindly let us know if any procedure to be maintained by us

prior to re-open the company from our end please."

12. After filing appeal under Section 252 of the Companies Act,

2013 or even at the time of haring it was emphatically argued that

before striking off the name of the company no opportunity was

given or principle of natural justice was violated. However, for the

first time in the year 2017 while the appellant filed application

before the ROC no such plea regarding violation of principle of

natural justice was taken; rather another ground was taken as if

there was lock out in the company. Accordingly the plea taken on

behalf of the appellant that without hearing or without any notice

the company was struck off is not available to be taken at this

stage. Moreover, if such ground is to be taken under the new Act

under Section 252(1) an appeal was to be preferred within a period

of three years. However, the appellant had filed an appeal before

the NCLT precisely under Section 252(3) of the Companies Act,

2013. Under this provision the ROC is having jurisdiction to

restore a struck off company in case it is satisfied that at the time

of striking off, the company was carrying on business or in

operation or otherwise it is just that the name of the company be

restored and pass order for restoration of the name of the

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company. Under this provision there is no scope to advance an

argument that order of striking off was passed without any notice

to a company. This is the distinction in between the powers of

Registrar under Section 252(1) and 252(3) of the Companies Act,

2013. For better appreciation it is necessary to reproduce entire

section 252 of the Companies Act, 2013:-

"252. Appeal to Tribunal.-- (1) Any person aggrieved by an order of the

Registrar, notifying a company as dissolved under section 248, may file

an appeal to the Tribunal within a period of three years from the

date of the order of the Registrar and if the Tribunal is of the opinion

that the removal of the name of the company from the register of

companies is not justified in view of the absence of any of the grounds on

which the order was passed by the Registrar, it may order restoration of

the name of the company in the register of companies:

Provided that before passing any order under this section, the Tribunal

shall give a reasonable opportunity of making representations and of

being heard to the Registrar, the company and all the persons concerned

Provided further that if the Registrar is satisfied, that the name of the

company has been struck off from the register of companies either

inadvertently or on the basis of incorrect information furnished by the

company or its directors, which requires restoration in the register of

companies, he may within a period of three years from the date of

passing of the order dissolving the company under section 248, file an

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application before the Tribunal seeking restoration of name of such

company.

(2) A copy of the order passed by the Tribunal shall be filed by the

company with the Registrar within thirty days from the date of the order

and on receipt of the order, the Registrar shall cause the name of the

company to be restored in the register of companies and shall issue a

fresh certificate of incorporation.

(3) If a company, or any member or creditor or workman thereof feels

aggrieved by the company having its name struck off from the register of

companies, the Tribunal on an application made by the company,

member, creditor or workman before the expiry of twenty years from the

publication in the Official Gazette of the notice under sub-section (5) of

section 248 may, if satisfied that the company was, at the time of its

name being struck off, carrying on business or in operation or otherwise

it is just that the name of the company be restored to the register of

companies, order the name of the company to be restored to the register

of companies, and the Tribunal may, by the order, give such other

directions and make such provisions as deemed just for placing the

company and all other persons in the same position as nearly as may be

as if the name of the company had not been struck off from the register

of companies.

13. In the present case the name of the company was struck off

under Section 560(5) of the Companies Act, 1956 and under the old

Act power for restoration in particular was enumerated under Company Appeal (AT) No.207 of 2020 17 Section 560(6). There is no doubt that in the present case name of

the appellant company was struck off in the year 2008 and

appellant filed appeal in the year 2019 under Section 252(3) of the

new Act. On examination of the order impugned it is evident that

Learned NCLT was not apprised as to whether at the time of striking

off the name of the company the appellant company was carrying

on any business or was in operation. In such view of the matter

there was no reason for the NCLT to pass order of restoration of

name of the company to the register of ROC. Whether the appellant

was doing any business or not, onus was on the appellant to satisfy

the learned NCLT. However, before the NCLT the appellant had

brought on record the directors report, auditors report as well as

balance sheets prepared by the Chartered Accountants which is

from the year 2000 to 2019. Even before this Tribunal also the

appellant has placed those reports which has been placed from

running page 76 to 283. In aforesaid directors and auditors

reports, report of CA namely C. Ghatak & Co is from the year 2006

to 2014. However, the auditors reports which has been shown from

the year 2015 to 2019 which are on record of the present appeal

has been shown to be prepared by one Ms Monika Bhadani, CA

having Membership No.304748. On examination of aforesaid all

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the directors and auditors report which are from the year 2000 to

2019 prepared by two different Chartered Accountants it appears

that those reports are not genuine or it appears that it is a table

work done on the same date. Of course it is shown as if they were

prepared on different dates. If some of the reports which has been

brought on record in the present appeal is reproduced only one

inference can be drawn as if those are not genuine and are

fabricated report. For example we are placing the directors report

dated 31.3.2000 which is at running page 76 auditors report for

the same year with balance sheet which are at running page 77 to

82, directors report dated 31.03.2005 and auditors report for the

same year i.e. report at page 107, 108 and auditors report for the

same year from page 109 to 114 and directors report dated

31.03.2014 at running page 183, 184 and independent auditors

report from 185 to 192. Similarly the directors report and auditors

report for the year 2015 is reproduced which are at running page

193 to 210 and for the financial year ending on 31.03.2019

directors report and auditors report from running page 266 to 283

which are reproduced:-

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14. If aforesaid reports are examined minutely one can come to

the conclusion that all reports were prepared either by the same

system i.e. computer or typewriter whatever may be since letters

and font are appearing exactly to be same in all aforesaid reports.

Even signatures which were put by Mr. Tapan Dhar and Ms Anita

Dhar as well as right from the documents prepared in the year

2000 till the year 2019 are exactly the same. However, certainly

on this strength without any scientific examination we may not

record definite finding as if those documents are forged one or not

but serious suspicion can be raised only on perusal of the same.

15. Besides afire referred circumstances, it is a peculiar case in

which though company was incorporated long back the appellant

himself admits that till the year 2019 the company was not allotted

any PAN number by the Income Tax Department. It has been

admitted by the appellant in para 7.4 of the Memo of Appeal which

is reproduced hereinbelow:-

"7.4 The company has also applied with the Income Tax

Department for allotment of Permanent Account Number (PAN)

for enabling it to submit/file all its pending Income Tax returns,

which the Company was unable to do for various reasons and

circumstances as entailed in the Company Petition. Also, since

Company Appeal (AT) No.207 of 2020 81

the name of the Company differ in records of ROC, led to non-

issuance of PAN card by IT Department. It is respectfully

submitted that once the PAN being allotted to the Company by

the IT Department, it undertakes to proceed with the filings of

all its pending returns at once. The copy of

receipt/acknowledgement of such application with IT

Department for obtaining PAN is attached with the present

appeal at page 334 to 334."

16. Besides the aforesaid statement running page 334 also

reflects as if on 5.08.2019 on behalf of the appellant company PAN

application was submitted. Running page 334 is reproduced

hereinbelow:-

"Received Rs.101.00 from Everest Pharmaceuticals Pvt Ltd

Application No./Coupon No. U-N003647588

Name to be printed on PAN Everest Pharmaceuticals Pvt Ltd

Date of Birth/incorporation 31/03/1961

Applicant's contact details 9830061221

Communication Address Office

Office State West Bengal

Proof of identity Certificate of Registration issued by ROC

Company Appeal (AT) No.207 of 2020 82

Proof of address Certificate of Registration issued by ROC

Proof of DOB Certificate of Registration issued by ROC

Date of Receipt 05/08/2019: 06:53:11

Mode of pancard Both physical PAN and e-PAN Card

Payment Ref No. 8869508367

Payment Date 05/08/2019 06:54:10"

17. Alongwith the Memo of Appeal the appellant has brought on

record one document i.e. communication contained at running

page 306, i.e. letter dated 01.10.2007 issued by Government of

West Bengal, Urban Development Department, addressed to Mr.

Tapan Dhar, Director, M/s Everest Pharmaceutics (P) Ltd. This is

the notice issued by Government of West Bengal. It is appropriate

to reproduce the said notice as follows:-

"WHEREAS the Government of West Bengal in the then Metropolitan Development Department, presently known as Urban Development Deptt. offered M/s Everest Pharmaceutics (P) Ltd. represented by its Director the grant of lease of plot measuring 5 cottahs more or less in Sector-V, Bidhannagar of 999 years for the purpose of manufacturing of pharmaceutical products vide Order no.386-SL(AL)9L-7/85 dated 15.02.1985 and the allottee was asked to produce certain documents within 60 (sixty)days in connection with implementation of the proposed project.

AND WHEREAS the allottee paid the full salami and other government dues but failed to produce certain documents necessary in connection with implementation of the proposed project despite being sought for vide offer of allotment being No.386-SL(AL)9L-7/85 dated 15.02.1985 and repeatedly asked vide letters No.58- MD/SL(AL)/9L-6/85 Dated

Company Appeal (AT) No.207 of 2020 83

22.01.1991, No.116-SL(AL)91-6/85 Dated 20.02.1991, No.1390- MD/SLAL9L-6/85 Dated 23.04.1991. No.2729-UD/SL(WR)/9L-6/85 Dated 07.08.1991, No.624- UD/SL(AL)/9L-6/85 Dated 19.02.1992, No. 1593-UD/SL(AL)9L- 6/85 Dated 25.05.1994 & No.3464-UD/SL(ALY9L- 6/85 Dated 14.10.1994.

AND WHEREAS the said allottee was again asked to furnish certain documents vide No.116662(2)-UD/SL(AL)9L-6/85 Dated 28.02.2006 within 60 days from the date of issue of the same and another 60 days existed after time was also allowed to him vide No.2066-UD/SL(WR)/9L- 6/85 dated 28.06.2007 and at the separation of the said stipulated period of time the said allottee was again asked to comply with the department's aforesaid letters vide No.4297- UD/SL(AL/9L-6/85 and No.308-UD/SL(WR)/9L-6/85 29.01.2007 & no.995-UD/SL(WR)-6/85 dated 21.03.2007. dated

AND WHEREAS the aforesaid allottee has failed to produce the requisite papers as asked for.

NOW, THEREFORE, by order of the government the undersigned is directed to say that the governor has been pleased to cancel the above mentioned offer of allotment bearing No.386-SL(AL)/9L-7/85 dated 15.02.1985 made in favour of M/s Everest Pharmaceutics (P) Ltd. in respect of Plot No.38, Block-EN, Sector-V, Bidhannagar in terms of Clause (15) of the said offer of allotment.

The deposit of salami arrears made by the Director of M/s Everest Pharmaceutics (P) Ltd. in respect of aforesaid plot of land will be refunded after deducting administrative charges as applicable in terms of Clause (12) of the said offer of allotment on receipt of such claim of refund from the allottee in due course.

By order of Governor

Sd/-

OSD & Exofficio Deputy Secretary to the Government of West Bengal

No.3442/1(4)-UD/SL/(WR)/9L-6/85 dated 01 Oct, 2007

Copy forwarded for information and taking necessary action to:

The Special Engineer SLR & DC, SEch.Bhawan Kolkata -91

2. The Executive Engineer (Design), SLR & DC, Sech.Bhawan

Kolkata -91

3.The Administrator, Bidhannagar

Company Appeal (AT) No.207 of 2020 84

4.The Chairman, Nabanagar Industrial Township Authority, Unnayan Bhawan.

Sd/-

OSD & Exofficio Deputy Secretary to the Government of West Bengal"

18. On perusal of the aforesaid notice it is evident that in year

1985 land measuring 5 cottahs more or less in Sector-V,

Bidhannagar was offered/allotted to the appellant company on

lease for 999 years and the appellant/allottee was asked to

produce certain documents. However, since those documents

were not provided, by the said notice dated 1st October, 2007 the

earlier allotment was cancelled and appellant company was

intimated regarding refund of the deposit of salami after deducting

administrative charges. However, it is difficult to perceive as to

how on 3rd April, 2019 a lease agreement was entered in between

the Governor of State of West Bengal and M/s Everest

Pharmaceutics (P) Ltd that too for 999 years on consideration of

the premium or salami of Rs.20053.32 (Rupees Twenty thousand

fifty three and paise thirty two only). We are in agreement with the

submission of learned counsel for ROC that since the appellant

company was already struck off in the year 2008 there was no

reason for executing such agreement on behalf of Governor of West

Bengal with the appellant company.

Company Appeal (AT) No.207 of 2020 85

19. Before the NCLT the reason for delay in filing appeal under

Section 252 was explained as if Mr. Tapan Dhar, one of the

directors was seriously ill and in support of his ailment medical

reports have been brought on record which are at running page

285 to 303. Page 285 is report on examination of blood in respect

of patient Tapan Dhar. Report date is mentioned as 21.02.2017

and last report is dated 5.6.2019. Of course number of reports

have been brought on record but none of the report is prior to

21.02.2017 and as such plea of appellant that due to ailment of

Mr. Tapan Dhar, delay occurred and returns and statement were

not filed before the ROC is required to be noticed only for its

outright rejection. Accordingly such report cannot be entertained.

20. Accordingly while dismissing the present appeal and

approving the order impugned dated 25.02.2020, passed by the

NCLT, we are of the opinion that considering the fact that certain

documents particularly Auditors report etc. have been brought on

record in the present judicial proceeding which prima facie creates

serious doubts regarding its genuineness in the mind of the Court

it would not be appropriate to simply shut our eyes on such issues.

We are noticing that in number of court proceedings the parties

are coming with fabricated documents. Now it is high time to take

Company Appeal (AT) No.207 of 2020 86

serious note of such thing. It appears that since we are ignoring

those issues, approaching the court with such fabricated

document has now become rampant. Accordingly with a view to

uphold the majesty of law it is desirable to direct for conducting a

detailed enquiry/investigation to ascertain veracity of aforesaid

documents which have been brought on record in the present

appeal particularly directors report/auditors reports/Balance

sheets. Besides brining on record aforesaid doubtful documents

in the present appeal the appellant has made an incorrect

statement in para 7.5 wherein it has been indicated as if the

appellant company was struck off in the year 2012 whereas the

company was already struck off long back in the year 2008. In

such view of the matter it is desirable to request the Secretary,

Ministry of Corporate Affairs, Govt of India to get the matter

enquired/investigated by an appropriate authority/agency for its

logical end.

21. Besides asking for enquiry/investigation we are of the

opinion that after noticing two documents i.e. Notice dated

1.10.2007 issued by Government of West Bengal, Urban

Development Department, Nagarayan, DF-8, Sector-I, Salt Lake

City, Kolkata to Mr. Tapan Dhar, director of the appellant company

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whereby earlier proposed allotment which was issued on

15.2.1985 was cancelled, under what circumstances the lease

agreement was executed in favour of the appellant company on

23.4.2009 while the name of the appellant company was already

struck off from the register of ROC.

22. Let a copy of this order be sent to the Chief Secretary to the

Government of West Bengal, for its needful.

23. Let a copy of this order be also sent to the Secretary, Ministry

of Corporate Affairs, Govt of India, for its compliance.

24. The Learned Registrar of this Tribunal is directed to provide

one set of the present Memo of Appeal with enclosures to the

Secretary, Ministry of Corporate Affairs, Govt of India, New Delhi.

25. With above observation the appeal stands dismissed.

(Justice Rakesh Kumar) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical) bm

Company Appeal (AT) No.207 of 2020