Leka Consulting Services Pvt. Ltd vs The Registrar Of Companies Odisha

In the matter of: Leka Consulting Services Private Limited Having Regd. Office at 324, Bima Vihar, Sector - 6, CDA, Cuttack, ODISHA - 753014. ...Appellant

Versus

Registrar of Companies, Odisha Ministry of Corporate Affairs, At Corporate Bhawan, 2nd and 3rd Floor, Plot No. 9(P), Sector 1, CDA, CUTTACK ODISHA - 753014. .....Respondent

For Appellant : Mr. Sashwat K Achary, Mr. Dhanananjay Bhaskar Ray, Advocates

For Respondent: .....

COMPANY APPEAL (AT) NO. 227 OF 2023

1

JUSTICE M. VENUGOPAL, MEMBER (JUDICIAL)

The Appellant / Petitioner has preferred the instant Comp.

App. (AT)No. 227/2023 as an 'Aggrieved' person in respect of the

impugned order dated 08.08.2023 in C.A. (Companies Act)

No.15/CB/2023 in CP No. 69/CB/2020 passed by the National

Company Law Tribunal, Cuttack Bench.

2. Earlier, the National Company Law Tribunal, Cuttack Bench

in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020

among other things at paragraph No. 4 had observed the following:

"Now this application has been filed. The High

Court granted liberty to the applicant to file

amendment application. The scope of

amendment is to rectify the mistake if it is

apparent on record. The applicant has not

point out any apparent mistake appeared in

the dismissal order of this Tribunal dated

21.08.2020 instead he prayed to receive

COMPANY APPEAL (AT) NO. 227 OF 2023

2 additional documents on record and grant the

relief prayed in dismissal C.P. No.

69/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. 69 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 COMPANY APPEAL (AT) NO. 227 OF 2023

3 High Court order dated 23.12.2021. In the

High Court order there is no whisper about

production of additional documents and the

revival of the company. In strict sense this

application is not in consonance with the order

of High Court. The citations submitted by the

applicant counsel regarding revival of company

are not relevant to decide the amendment

application. In the circumstances, the

application is devoid of merits both on law and

facts and liable to be dismissed."

and resultantly dismissed the Application.

Appellant's Submissions

3. The Learned Counsel for the Appellant contends that the

impugned order dated 08.08.2023 in C.A. (Companies Act)

No.15/CB/2023 in CP No. 69/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.

COMPANY APPEAL (AT) NO. 227 OF 2023

4

4. According to the Learned Counsel for the Appellant, the

Appellant/Company was an active Company ever since its

incorporation and maintaining all the Requisite 'Books of

Accounts' as per the Companies Act, 2013. Furthermore, a

'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 there.

5. It is represented on behalf of the Appellant that prior to any

notice issued under section 248(5) of the Companies Act, 2013 was

served on the Appellant/Company, a notification was published in

the 'Gazette of India' as per Section 248(1) of the Companies Act,

2013, for removal of the Appellant/Company from the 'Registrar of

Companies' for non-filing of Annual Return for the Financial Years

2016-2017 and 2017-2018.

6. It is the version of the Appellant that the Tribunal had

disregarded the clear liberty granted to the Appellant by the

Hon'ble High Court, by holding that since the Company petition

was not pending, there was no question of receiving additional

documents in a disposed of petition/proceeding.

COMPANY APPEAL (AT) NO. 227 OF 2023

5

7. The Learned Counsel for the Appellant points out that the

'Tribunal' had failed to appreciate that the 'Sale Deed' produced as

Additional Documents/Evidence, as per liberty granted by the

Hon'ble High Court, amply shows that the Appellant/Company

was in operation and was a 'Going Concern' having considerable

'Assets' and substratum at the time of 'striking off'.

8. The Learned Counsel for the Appellant brings it to the notice

of this Tribunal, that Appellant/Company was a 'Going Concern'

and doing 'Business Operations' during the period of 'Default' even

going by the audited Annual Accounts viz. the Profit & Loss

Accounts of the Company, in respect of the Financial Years 2016-

2017 and 2017-2018, the 'Bank Accounts' statements of the

Appellant / Company and the 'Income Tax Returns' of the

Appellant Company.

9. The Learned Counsel for the Appellant points out that

the Appellant, was not served with any Notice/Order Striking Off

and 'no opportunity of hearing' was provided by the Respondent,

by adducing evidence, to demonstrate that it was in operation.

10. The Learned Counsel for the Appellant, proceeds to

point out that the 'Tribunal' had passed its final order in CP No. COMPANY APPEAL (AT) NO. 227 OF 2023

6 69/CB/2020 untenably dismissing the Company Petition by

wrongly holding that the perusal of the documents filed 'prima

facie' suggested that the Appellant/Company was not carrying out

its business during the relevant time when its name was struck

off, it was wrongly held that the Company was not a 'Going

Concern' and was not doing any Banking / Business Transactions

when its name was 'struck off from the 'Register of Companies'

and that the 'Company' was not having any business operations.

11. The Learned Counsel for the Appellant, submits that there

was a breach of the 'Principles' of Natural Justice', in as much as

the 'objections', of the Respondent / 'Registrar of Companies',

were not furnished to the Appellant and 'No Opportunity', was

afforded to the Company to explain and tender proof that it was in

'operation', at the relevant point of time.

12. According to the Appellant, it filed W.P. (C) 35437 of 2020

before the Hon'ble High Court of Orissa, and on 23.12.2021 there

was a categorical direction that 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

COMPANY APPEAL (AT) NO. 227 OF 2023

7 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 appeal and, therefore, is still

entitled to approach the Tribunal.

13. According to the Appellant, the Hon'ble High Court of Orissa

had disposed of W.P. (C) No. 26971 of 2020, on 14.10.2022, in

terms of the order dated 23.12.2021 passed by the Hon'ble High

Court in W.P. (C) No. 35437 of 2020.

14. The Learned Counsel for the Appellant, points out that the

Appellant had approached the National Company Law Tribunal,

Cuttack by preferring Company Application No. 15/CB/2023 in

CP No. 69/CB/2020, based on the liberty granted by the Hon'ble

High Court, praying for reconsideration of the revival of the

Appellant / Company, (pursuant to the Liberty given by the

Hon'ble High Court) while taking into account the 'Additional

Documents' furnished along with the Interlocutory Application,

being nine Sale Deeds from 2007 to 2013, together with the

encumbrance certificates, to exhibit that the Appellant/Company

was in operation at the relevant point of time.

COMPANY APPEAL (AT) NO. 227 OF 2023

8

15. The Learned Counsel for the Appellant contends that by 'no

stretch of imagination', can the Hon'ble High Court's order be

construed as granting liberty to the Appellant/Applicant to file an

Amendment Application. As such, there was no requirement for

the Appellant, to point out any other 'Apparent Mistake' in the

dismissal order of the Tribunal dated 21.08.2020.

16. The Learned Counsel for the Appellant points out that the

Tribunal, on its own, expanding the permission given by the

Hon'ble High Court and order is an erroneous one, which is liable

to be set aside. Also, it is the stand of Appellant that, the 'Tribunal'

had failed to appreciate that the object of Section 252(3) of the

Companies Act, 2013 is to give a chance to the 'Company', its

'Members' and 'Creditors' to revive the Company, which was

'struck off' by the Respondent / ROC, within a period of 20 years

and to provide them an opportunity to carry on the business.

17. The Learned Counsel for the Appellant takes a stand that the

Respondent and the 'Tribunal', had failed to consider the

ingredients of Section 248(6) of the Companies Act, 2013 which

mentions that the Respondent shall satisfy itself that sufficient

provision was made for the realisation of the sums due to the

COMPANY APPEAL (AT) NO. 227 OF 2023

9 Company and for payment and discharge its obligations and

liabilities within a reasonable time and if necessary, undertakings

are to be obtained from the Managing Director, Director or other

persons, incharge of the Management of the Company.

18. The Learned Counsel for the Appellant, points out that the

Appellant had filed 'Returns' for the earlier years and it can be seen

that the Appellant has 'Assets and Liabilities', and as such, the

Respondent had failed to comply with the ingredients of Section

248(6) of the Companies Act, 2013.

19. The other contention advanced on behalf of the Appellant, is

that the Appellant had purchased 'Lands' by investing 'substantial

money', to be utilised for further 'Business Activities' and more

importantly, the 'Loans' taken for purchasing these lands is

required to be paid off, for which the revival of the Appellant /

Company is necessary.

20. The Learned Counsel for the Appellant points out that the

exclusion period provided for in the suo moto order of the Hon'ble

Supreme Court, for the purpose of Section 14 of the Limitation Act,

1963, the following period in any case, also deserve to be excluded

while computing two years viz.:-

COMPANY APPEAL (AT) NO. 227 OF 2023

10

(i) Pendency before Hon'ble HC -14.12.2020 to 23.12.2021

- 374 days; and

(ii) Pendency before NCLT in CP 48 -24.06.2022 to

20.09.2022 88 days and in all 462 days.

21. The Learned Counsel for the Appellant points out that till

date the Respondent / ROC report was not provided to the

Appellant.

22. According to the Appellant, the 'Tribunal' had not non-suited

the Appellant based on limitation. Also, that, the purport of liberty

granted to the Appellant was to seek revival of the Company on the

basis of additional evidence to be adduced by it and that was the

prayer made before the Tribunal.

23. The Learned Counsel for the Appellant brings it to the notice

of this Tribunal that the CP 69 of 2020 was heard by the Tribunal

only through virtual mode because of COVID 19, which was just

newly started. Because of the COVID 19 pandemic intervention,

the Hon'ble Supreme Court had excluded 'Limitation' for all

purposes from 15.03.2020 to 28.02.2022. Apart from that, the

main CP 69/CB/2020 was preferred by one of the Directors of the

Company for revival of the Company, before the Tribunal.

COMPANY APPEAL (AT) NO. 227 OF 2023

11

24. The Learned Counsel for the Appellant points out that the

'Company' was struck off on 02.11.2019 and CP 69/CB/2020 was

filed on 26.02.2020, as per Section 252(3) of the Companies Act,

2013 when the statute provides for 20 years Limitation period.

25. The Learned Counsel for the Appellant brings to the notice of

this Tribunal that the Tribunal took a hyper technical approach in

dealing with the application of the Appellant and ignored the

meritorious grounds projected by it.

26. The Learned Counsel for the Appellant points out that as per

the Hon'ble Supreme Court of India, the Limitation was to be

excluded from 15.03.2020 to 28.02.2022, as per decision of

Hon'ble Supreme Court in 2022 3 SCC at pg 117 (vide para 5.1).

27. The Learned Counsel for the Appellant, while praying for

setting aside the impugned order passed by the Tribunal in C.A.

(Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 and to

allow the instant Appeal, in the interest of justice.

The Appellant's Side Decision

28. The Learned Counsel for the Appellant refers to the decision

in M.A. Panjwani v. Registrar of Companies, 2013 SCC online

COMPANY APPEAL (AT) NO. 227 OF 2023

12 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 is satisfied that the

Company was, at the time of the striking off of its name from the

Register, carrying on business or was in operation; the second

circumstance is when it appears to the Company Court that it is

"otherwise just" that the name of the company be restored to the

Register.

29. The Learned Counsel for the Appellant relies on the decision

in M.A. Panjwani's case, wherein at paragraph 15 it was held that

the presence of the words "or otherwise" denotes that even if the

Company was not carrying on any 'Business' or was not in

operation at the time of 'striking off', it is still open to the 'Company

COMPANY APPEAL (AT) NO. 227 OF 2023

13 Court' to order restoration if it appears to be Court to be "otherwise

just".

30. The Learned Counsel for the Appellant adverts to the decision

of Hon'ble Supreme Court in the matter of Posh Exports Pvt.

Ltd. v. Registrar of Companies 2014 SCC Online Del 7439

wherein the Company was directed to be restored (subject to the

filing of all statutory documents and also the other documents with

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.

31. 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

COMPANY APPEAL (AT) NO. 227 OF 2023

14 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'.

32. 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."

33. 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 observed as under:-

COMPANY APPEAL (AT) NO. 227 OF 2023

15 "The Appellant has been able to satisfy this bench that it has

certain assets which necessitate and justify the restoration of 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."

34. 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

COMPANY APPEAL (AT) NO. 227 OF 2023

16 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 Corporation of Faridabad has issued

an Encumbrance Certificate dated 04.09.2019, it shows that the

land in which the factory of the Company is located, is currently the

name of the Company and also having huge assets of the Company.

Hence, we are of the view that the order passed by the National

Company Law Tribunal (New Delhi Bench, Court-II) as well as

Registrar of Companies, NCT of Delhi & Haryana is not sustainable

in law."

Evaluation

35. Before the National Company Law Tribunal, Cuttack Bench,

the Petitioner / Appellant had filed CA No. 15/CB/2023 in CP No.

69/CB/2020 (u/s 252(3) & (420) of the Companies Act read with

Rule 11 of NCLT Rules, 2016) wherein he had sought the relief of

Reconsidering the revival of the Applicant Company pursuant to

the Order passed by the Hon'ble High Court of Orissa dated

23.12.2021 under Annexure - 2 while taking in consideration the

additional documents submitted along with the present

application.

COMPANY APPEAL (AT) NO. 227 OF 2023

17

36. According to the Petitioner/Appellant, the Respondent /

ROC, Orissa had stated that the Petitioner/Appellant/Company

had not generated 'any revenue' and the same, was not a 'Going

Concern', which is repudiated by the Petitioner/Appellant

Company, stating that the immovable property (vide Annexure 4-

copies of Nine Sale Deeds from the year 2007-2013 along with

encumbrance certificate) was purchased from the money raised

through loans from the Promoters. Also, that the immovable

Assets of the Company according to the Appellant needs to be

utilised, to pay back the Creditors of the Company, therefore, a

plea is taken on behalf of the Petitioner/Appellant/Company that

it is not just and equitable to strike off the name of the

Petitioner/Appellant Company.

37. It is the plea of the Petitioner/Appellant in CA No.

15/CB/2023 in main CP No. 69/CB/2020 that the Respondent /

ROC initiated proceedings under Section 248 (5) of the Companies

Act, 2013 but failed to consider Section 248 (6) of the Companies

Act, 2013 which mentions that the Respondent shall satisfy

himself that sufficient provision was made for realisation of all the

amounts due to the company and for payment or discharge of its

COMPANY APPEAL (AT) NO. 227 OF 2023

18 liabilities and obligations by the company within a reasonable time

and, if necessary, obtain necessary undertakings from the

managing director, director or other persons in charge of the

management of the company. In the present case, the respondent

has struck off the name of the Applicant's company non-filing of

the statutory annual returns i.e. FY 2016-17 and 2017-18.

38. According to the Appellant, the

Petitioner/Appellant/Company had filed Returns for earlier years

and there are Assets and Liabilities for the Petitioner/Appellant

Company and the Respondent had failed to fulfill the requirements

as per Section 248(6) of the Act. Therefore, it is the contention of

the Petitioner/Appellant had failed to fulfill the ingredients of

Section 248(6) of the Act and as such, the action taken by the

Respondent is an illegal one.

39. It is the version of the Appellant, that during the course of

hearing of main Company Petition the Respondent had not served

its 'Reply' upon the Appellant, and as such the Appellant, was

unaware of the stand taken by the Respondent / ROC, Orissa. In

any event, the statute (Companies Act, 2013) provides that an

order of this 'Tribunal', can be rectified as per Section 420(2) of

COMPANY APPEAL (AT) NO. 227 OF 2023

19 the Companies Act, 2013 of course within a period of two years.

In the instant case, the application was filed pursuant to the order

of the High Court dated 23.12.2021.

40. The Learned Counsel for the Appellant points out the

Appellant/Company had given 'Loans' to another 'Corporate'

which becomes impossible to recover unless and until the

Appellant/Petitioner Company is revived.

41. The Learned Counsel for the Appellant prays for the

consideration of CA No. 15/CB/2023 in main CP No. 69/CB/2020

in the light of the order passed by the Hon'ble Orissa High Court

dated 23.12.2021.

42. It must be borne in mind that the Petitioner/Appellant had

filed a fresh petition not pointing out the dismissal order passed

by the NCLT Cuttack Bench (under Section 252(3) of the

Companies Act, 2013 in CP No. 48/CB/2022). In fact, the said

petition came to be dismissed on 20.09.2022, as 'withdrawn', after

it was pointed out on behalf of the Respondent.

43. It is relevantly pointed out that the 'Tribunal' in the final

order in main CP No. 69/CB/2020 dismissed the Company

Petition holding that a perusal of the documents indicated that the COMPANY APPEAL (AT) NO. 227 OF 2023

20 Appellant / Company was not carrying on its Business during the

relevant time when its name was 'struck off'. Moreover, it was held

that the Appellant / Company had not generated any revenue from

its operations since the 'Financial Year' had ended on 31.03.2017.

Besides that, it was observed that Income Tax Returns showed that

there were losses and there was no indication of any business

being carried out during the relevant time etc.

44. The Tribunal in its order on 21.08.2020 in CP No.

69/CB/2020 had opined that Respondent / ROC, Odisha had

issued a Show Cause Notice to the Appellant / Company requiring

the Company to state whether the Appellant / Company was

carrying on any business or was in operation and the Respondent

through its report on 16.03.2020 had mentioned that the

Appellant / Company be put to 'strict proof' whether it was in

operation at the time of 'striking off'.

45. In CP(Appeal) No. 69/CTB/2020 on the file of NCLT, Cuttack,

the Appellant/Petitioner had prayed for a direction being issued to

the Respondent to revoke the impugned order.

46. Before the Tribunal the Respondent/ROC had mentioned the

following in its Report which proceeds as under: -

COMPANY APPEAL (AT) NO. 227 OF 2023

21 "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 period for obtaining the status of a Dormant Company

under Section 455 of the Companies Act, 2013 and issued

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

COMPANY APPEAL (AT) NO. 227 OF 2023

22 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."

47. It is not out of place for this Tribunal to make an apt reference

in regard to the Hon'ble High Court's of Orissa order dated

23.12.2021 in W.P. (C) No. 35437 of 2020 between Leka

Consulting Services Private Limited v. NCLT, Cuttack & Anr.

Wherein at paragraph 4 it is observed as under: -

"4. Petitioner might approach the Tribunal to contend that

impugned order be amended on the Tribunal not having

allowed his client to adduce evidence of the company being in

operation, in context of the report having said that his client

may be put to strict proof. The amendment can be made within

two years from date of order, so there is still time. Petitioner

has not preferred appeal and, therefore, still entitled to

approach the Tribunal."

COMPANY APPEAL (AT) NO. 227 OF 2023

23

48. Section 420(1&2) of the Companies Act, 2013 under the

caption orders of Tribunal reads as under: -

"(1) The Tribunal may, after giving the parties to any

proceeding before it, a reasonable opportunity of being heard,

pass such orders thereon as it thinks fit.

(2) The Tribunal may, at any time within two years from the

date of the order, with a view to rectifying any mistake

apparent from the record, amend any order passed by it, and

shall make such amendment, if the mistake is brought to its

notice by the parties:

Provided that no such amendment shall be made in respect of

any order against which an appeal has been preferred under

this Act."

49. It is pointed out by this 'Tribunal' that for the purpose of

rectification of any order under Rule 154 of the NCLT Rules, 2016,

it should relate to the case. Rule 154 of NCLT Rules, 2016 enjoins

that an application under such Rule may be made in Form No.

'NCLT 9' within two years from the date of Final Order', for

rectification of Final Order not being an Interlocutory Order. As a

matter of fact, rectification order can be passed in respect of COMPANY APPEAL (AT) NO. 227 OF 2023

24 mistakes which are patent on record and not mistakes which may

be discovered by process of elucidation or any debate, in the

considered opinion of this 'Tribunal'. But such power cannot be

exercised to review an order or judgement in the absence of clerical

or arithmetical matter. Rule 155 of the NCLT Rules, 2016 provides

for 'General Power of Remand'.

50. Indeed, 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'.

51. 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.

52. In the judgement of this Tribunal dated 19.07.2017, in

Company Appeal (AT) No.206/2017 and Company Appeal (AT)

COMPANY APPEAL (AT) NO. 227 OF 2023

25 No.221/2017, in APC Credit Rating Pvt Ltd V. ROC, NCT of Delhi

and Haryana wherein at paragraph 15 it is observed as under:-

"15. As per sub-section (3) of Section 421, every appeal is

required to be filed under sub-Section (1) within 45 days from

the date on which the copy of the order of the Tribunal is made

-available to the person aggrieved; As the Appellate Tribunal

is empowered to entertain an appeal after expiry of the said

period of 45 days from the date of receipt of the order but such

power can be exercised only within a further period not

exceeding 45 days that is total 90 days. If order(s) dated 26th

September, 2.016 were communicated the appellant(s) in

October, 2016 [actual date not supplied by the appellant(s)],

even then, we find that now more than 9 /2 months have

passed and thereby the Appellate Tribunal has no power to

condone the delay. For the said results, we express our

inability to interfere with the impugned orders both dated 26th

September, 2016 and reject such prayer.''

53. At this stage, this 'Tribunal', worth recalls and recollects the

decision in Batuk K Vyas V Surat Borough Municipality reported

in AIR 1953 Bombay at Page 133, wherein the Hon'ble High Court

COMPANY APPEAL (AT) NO. 227 OF 2023

26 of Bombay had observed that no 'error' could be said to be

'apparent' on the face of record, if it was not self evident and if it

required an examination or argument to establish it.

54. Further, this 'Tribunal', aptly refers to the decision of Hon'ble

Supreme Court in Hari Vishnu Kamath V. Syed Ahmad Ishaque &

Ors reported in AIR 1955 SC 233, it is observed that it is essential

that the 'mistake' should be something more than a mere error. It

must be one which must be manifest on the face of record.

55. In the instant case on hand, the Petitioner/Appellant, takes

a stand that the Petitioner/Appellant/Company had given loans to

another corporate, which becomes impossible to recover unless

and until the present petitioner/Appellant/Company is revived.

56. The Tribunal, in the impugned order, had observed that CA

15/CB/2023 in CP/69/CTB/2020 was filed on 16.12.2022 after

the lapse of two years' period, from the date of the order passed by

the NCLT Cuttack Bench on 21.08.2020 in main Company

Petition.

57. It is to be remembered that the Petitioner/Appellant had filed

CA 15/CB/2023 before the Tribunal seeking a relief to receive

'Additional Documents''and to consider the 'Revival of Company' COMPANY APPEAL (AT) NO. 227 OF 2023

27 An Appellant cannot claim as a matter of right to produce the

document or examine any witness before the 'Appellate Authority'

undoubtedly, the 'Discretion' to receive any document/evidence

rests with the Appellate Authority/Court.

58. To be noted that the power of a Tribunal to permit 'Additional'

evidence to produce / documents is in the jurisdiction of the

Appellate Authority. A document not relevant for deciding the

question of controversy in a given proceeding / suit is not to be

accepted as additional evidence. Also, if there is any gap or lacuna

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.

59. As far as the present case is concerned, the Appellant, had

not preferred an application for amendment but he preferred the

CA 15/CB/2023 in CP/69/CTB/2020 seeking to receive

additional documents by the Tribunal and to consider the revival

of Company. In this connection, the CA 15/CB/2023 in

CP/69/CTB/2020 filed by the Petitioner/Appellant before the

Tribunal latently and patently indicates that the Hon'ble High

Court had given permission to the Appellant/Petitioner to prefer

COMPANY APPEAL (AT) NO. 227 OF 2023

28 an amendment application but the Appellant / Petitioner had

prayed for the receipt of additional documents by the Tribunal, to

revive the Company which relief is outside the purview of the High

Court's Order.

60. On a careful consideration of Appellant's contentions this

'Tribunal' on going through the impugned order dated 08.08.2023

in CA 15/CB/2023 in CP/69/CTB/2020 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.

61. 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.

Moreover, the production of additional evidence is not to be

permitted where a person does not satisfy the Tribunal / Court

that such evidence was not within the knowledge or could not be

produced with due diligence.

62. As far as the present case is concerned, the Hon'ble High

Court of Orissa through its order dated 23.12.2020 in W.P. (C)

35437/2020 had granted liberty to the Appellant to prefer an COMPANY APPEAL (AT) NO. 227 OF 2023

29 Amendment Application obviously, under Section 420 of the

Companies Act, 2013 in view of the fact that two years' period had

not lapsed, on the date of the Hon'ble High Court's order.

63. In the instant case on hand the CA 15/CB/2023 in

CP/69/CTB/2020 was filed before the Tribunal on 16.12.2022,

after the lapse of two years' period from the date of order of

dismissal dated 21.08.2021 in CP/69/CTB/2020.

64. 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(Appeal) No.69/CTB/2020 on 21.08.2020, at para

No.11 had clearly observed that 'before striking off the name of the

company from its register, ROC, had issued a show cause notice

COMPANY APPEAL (AT) NO. 227 OF 2023

30 to the Company enquiring whether the said Company was carrying

any business or was in operation'.

65. It is not out of place for this Tribunal to make a pertinent

mention that the Respondent/ROC through its letter dated

16.03.2020 had categorically made a mention that the 'Petitioner'

may be put to strict proof of the contentions made therein that at

the time of its striking off the company was in operation'.

66. Continuing further the Tribunal in

CP(Appeal)No.69/CTB/2020 through its order dated 21.08.2020

had at para 11 proceeded to observe that 'details/documents

furnished alongwith the application do not suggest that the

company was in operation and doing any business during the

relevant time. Also available details do not suggest that the

Company has anybody in its employment'.

67. In view of the clear cut and candid observations made by the

Tribunal in CP(Appeal)No.69/CTB/2020 dated 21.08.2020 as

mentioned SUPRA the contra pleas of the Appellant that it engaged

part time employee to file the Annual Return before ROC and the

said employee had left the Company because of unknown reason

to the Appellant and as such, the statutory return could not be COMPANY APPEAL (AT) NO. 227 OF 2023

31 filed on time for Financial years 2016-17-18 etc. are 'unworthy of

acceptance' as held by this 'Tribunal'.

68. Be that as it may, on a careful consideration of the

Appellant's contentions, this 'Tribunal', on going through the

impugned order dated 08.08.2023 in CA 15/CB/2023 in

CP/69/CTB/2020 is of the considered view that the Appellant had

not filed CA 15/CB/2023 in CP/69/CTB/2020 within the two

years period as envisaged under Section 420 (2) of the Companies

Act, 2013 and in fact had filed the CA 15/CB/2023 in

CP/69/CTB/2020 before the 'Tribunal' 16.12.2022, after the lapse

of two years' period on 16.12.2022. Therefore, the 'Tribunal' had

rightly opined that the CA 15/CB/2023 was not to be considered

in regard to the receiving of additional documents / additional

evidence. Looking at from any angle, the impugned order dated

08.08.2023 in CA 15/CB/2023 in CP/69/CTB/2020, passed by

the NCLT, Cuttack Bench is free from any legal flaws. Resultantly,

the Appeal sans merits.

COMPANY APPEAL (AT) NO. 227 OF 2023

32 Conclusion

In fine, the Company Appeal (AT) No. 227 of 2023 is

dismissed but without costs. The connected pending IA No.

5615/2023 for stay is closed. Connected pending IAs', if any, are

closed.

(Justice M. Venugopal) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical)

Date: 08-02-2024

ss/bm

COMPANY APPEAL (AT) NO. 227 OF 2023

33