M/S Akl Enterprise Private Limited vs The Registrar Of Companies Odisha

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

JUSTICE M. VENUGOPAL, MEMBER (JUDICIAL)

The Appellant / Petitioner has preferred the instant Company Appeal (AT) No. 228 of 2023

1 Company Appeal (AT) No. 228 of 2023 as an 'Aggrieved' person in

respect of the impugned order dated 08.08.2023 IA No.

19/CB/2023 in CP No. 70/CB/2020 passed by the National

Company Law Tribunal, Cuttack Bench.

2. Earlier, the National Company Law Tribunal while passing

the impugned order 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

additional documents on record and grant the

relief prayed in dismissal C.P. No.

70/CTB/2020. The prayer of the applicant is

beyond the scope of amendment. The order

passed on merit dated 21.08.2020 not set

Company Appeal (AT) No. 228 of 2023

2 aside by Higher forum, the order is still in force.

The C.P. No. 70 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

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 Company Appeal (AT) No. 228 of 2023

3 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 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 Company Appeal (AT) No. 228 of 2023

4 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/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 Returns

for the Financial Years 2016-2017 and 2017-2018.

6. It is projected on the side 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.

7. The Learned Counsel for the Appellant adverts to the fact that

the Tribunal had failed to appreciate that the 'details of Bank

Transactions' between 09.01.2013 and 12.03.2018, in the Bank

Account of the Appellant allegedly indicated that there were no

'Business Transactions', in the Account and that the Company was

Company Appeal (AT) No. 228 of 2023

5 neither 'Going Concern' nor was having any 'Business Operations'

and was not doing Banking/Business Transactions when its name

was struck off from the 'Registrar of Companies'.

8. According to the Appellant, the copies of Company Petition,

Bank Statements, Audited Balance Sheets and Annual Returns for

the Financial Years 2016-2017 and 2017-18, 2018-19 were

annexed to the 'Company Petition' to exhibit that it was in

operation all along and undertook to file the outstanding statutory

Annual Returns and Financial Statements for the period 2016-

2017 and 2017-18, 2018-19 along with the fees and additional fees

as applicable in the event of the Company was revived.

9. The Learned Counsel for the Appellant points out that there

was blatant negation of the principles of natural justice, in as

much as the 'Objections' filed by the Registrar of Companies

(Respondent) were not given to the Appellant and 'No Opportunity'

was given to the Company to explain and furnish proof in regard

to its being in operation at the relevant time.

10. It is the version of the Appellant that the Leka Consulting

Services Private Limited (Appellant in Comp. App. (AT) No.

228/2023) had preferred W.P. (C) No. 35437 of 2020 assailing the

Company Appeal (AT) No. 228 of 2023

6 order dated 21.08.2020 passed by the NCLT, Cuttack in CP No. 69

of 2020.

11. The Learned Counsel for the Appellant refers to the order

dated 23.12.2021 in W.P. (C) No. 35437 of 2020 passed by the

Hon'ble High Court of Orissa wherein a direction was issued 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 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

Company Appeal (AT) No. 228 of 2023

7 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. In fact, the W.P. (C) No. 26971

of 2022 was disposed of, as per order dated 23.12.2021 in W.P. (C)

No. 35437 of 2020 passed by the Hon'ble High Court.

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

this 'Tribunal' that the Appellant had preferred IA No. 19/CB/2023

dated 25.11.2022 before the NCLT Cuttack, as per Section 252(3)

r/w Section 420 of the Companies Act praying for 'Reconsideration'

of the Revival / Company resting upon the order dated 14.10.2022

passed by the Hon'ble High Court in W.P. (C) No. 35437 of 2020,

while taking into consideration, the 'Additional Documents'

furnished along with the said Interlocutory Application being four

'Sale Deeds' from the year 2008 to 2011 along with encumbrance

certificates (to exhibit) that the Appellant / Company was in

operation at the relevant point of time.

Company Appeal (AT) No. 228 of 2023

8

15. The Learned Counsel for the Appellant points out that just

because Appellant / Company was making losses, it could not

have been concluded that the Appellant / Company was not a

'Going Concern' and was not doing any 'Business Operations'.

16. The Learned Counsel for the 'Appellant' takes a fervent plea

that the Appellant had purchased 'Lands' by investing substantial

money which was to be utilised for further 'Business Activities'

and the 'Loans' taken for purchasing these Lands was required to

be 'Paid off' for which 'Revival' of the Appellant / Company is

necessary. Also, that the Appellant / Company had given 'Loans'

to another corporate entity, which becomes impossible to recover

unless and until the Appellant / Company is revived.

17. It is the stand of the Appellant/Company that the

Respondent /ROC and the 'Tribunal', had failed to appreciate that

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

mentions that the Respondent/ROC shall satisfy itself that

sufficient provision was made for realization of all the amounts,

due to the Company and for payment and discharge of its liabilities

and obligations, within a reasonable time and if necessary,

Company Appeal (AT) No. 228 of 2023

9 undertakings are required 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 could be

seen that the Appellant has Assets and Liabilities and as such the

Respondent had failed to satisfy 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 Company Appeal (AT) No. 228 of 2023

10 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.

21. 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 Court to

order restoration if it appears to be Court to be "otherwise just".

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

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

Company Appeal (AT) No. 228 of 2023

11 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.

23. 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

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.

Company Appeal (AT) No. 228 of 2023

12

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

70/CB/2020 was filed by one of the Directors of the Company, for

revival of the Company on 26.02.2020 and the COVID pandemic

intervened on and that the Hon'ble Supreme Court's suo moto

order excludes all Limitation for all purposes from 15.03.2020 to

28.02.2022.

25. It is represented on behalf of the 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

Company Appeal (AT) No. 228 of 2023

13 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

Appellant. Moreover, the prayer made before the Tribunal in the

application No. IA 19/CB/2023 in CP 70/CB/2020 was to

reconsider the revival of the Appellant/Company, based on the

order dated 14.10.2022 passed by the Hon'ble High Court

29. Furthermore, the Appellant came to know about the non-

filling of Annual Returns and Balance Sheets for the years 2016-

17 and 2017-2018 (for the financial years ending) and further that

the Appellant/Company had engaged a Company Secretary to file

the Annual Returns before the Respondent / ROC. In fact, the

said employee had not filed the Annual Returns on time for the

years 2016-17 and 2017-18 and it was only in October, 2019 the

Company Appeal (AT) No. 228 of 2023

14 Balance Sheet and Auditor's Report for the financial year 2018-19

were ready to be filed with the Respondent.

30. The Learned Counsel for the Appellant submits that the

Tribunal took a hyper technical approach dealing with the IA

19/CB/2023 in main CP 70/CB/2020 and ignored all meritorious

grounds under which the Company can be restored.

31. The other plea of the Appellant is that the substantial justice

when it is pitted against technicalities, the former will prevail and

in the instant case, the Appellant / Petitioner is able to prove a

strong case for restoration of the Company.

Appraisal

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

the Petitioner/Appellant had filed IA No. 19/CB/2023 in

CP/70/2020 (u/s 252(3) & (420) of the Companies Act read with

Rule 11 of NCLT Rules, 2016) wherein he had prayed for reception

of additional documents and to consider the revival of the

Company.

33. According to the Petitioner/Appellant, the Respondent / ROC

had initiated proceedings u/s 248 of the Companies Act, 2013, for

Company Appeal (AT) No. 228 of 2023

15 the purpose of striking off the name of the Company from the

Register maintained by the Respondent.

34. It is the stand of the Appellant that the Respondent / ROC

had not followed the procedure u/s 248(1) of the Companies Act,

2013, 'Notices' u/s 248(1) were not sent and now had proceeded

to issue notice u/s 248(5) of the Act, publishing the name of the

Appellant/Petitioner Company in the official gazette on 2-8

November, 2019.

35. It is projected on behalf of the Appellant that the accounts of

the Appellant/Petitioner Company were prepared and audited and

that the Company had engaged services of a Company Secretary

to perform the task of filing the Returns 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

Company Appeal (AT) No. 228 of 2023

16 /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

Appellant/Company and restoration of the name of the

Appellant/Company in the 'Register' maintained by the

Respondent, the Appellant/Company shall file all outstanding

statutory documents viz. the Financial Statement and Annual

Returns for the year 2016-17, 2017-18 and 2018-19 together with

the filing fees and the additional fee has applicable on the date of

actual filing and the certified copy of the Tribunal for the

restoration of the name of the Company to the Register maintained

by the Respondent.

Company Appeal (AT) No. 228 of 2023

17

38. The Appellant/Petitioner takes a stand that the Tribunal had

wrongly dismissed the IA 19/CB/2023 in main Company Petition.

Also, that the Appellant/ Company holds immovable properties

which were purchased from the money raised through Loans from

the Promoters and the Company was at the stage of planning and

executing future Business activities, to be carried out by the

Appellant/Company when its name was 'struck off'. Apart from

that, the Appellant / Company, had also given Loans to another

corporate entity which becomes impossible to recover unless and

until the Appellant / Company/Petitioner, is revived.

39. The submission of the Appellant is that the Tribunal had

failed to take note of the ingredients of Section 248(6) of the

Companies Act, 2013 which mentions that the Respondent shall

satisfy itself that sufficient provisions was made for realisation of

all the amounts due to the Company.

40. 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:-

Company Appeal (AT) No. 228 of 2023

18 "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."

41. 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:-

"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

Company Appeal (AT) No. 228 of 2023

19 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 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

Company Appeal (AT) No. 228 of 2023

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

in law."

43. Section 420(1&2) of the Companies Act, 2013 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."

44. It is aptly pointed out by the Tribunal that for the purpose of

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

2016, it should relate to the case. In reality, the 'Rectification

order' can be passed in regard to the mistakes which are patent on

Company Appeal (AT) No. 228 of 2023

21 record and not mistakes which may be discovered by process of

elucidation or any debate, as opined by this Tribunal.

45. 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'.

46. 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.

47. The Tribunal in the impugned order had observed that IA No.

19/CB/2023 in CP No. 70/CB/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.

48. Be it noted that the Petitioner/Appellant had filed IA No.

19/CB/2023 in CP No. 70/CB/2020 before the Tribunal, praying Company Appeal (AT) No. 228 of 2023

22 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 said Company was carrying

any business or was in operation'.

Company Appeal (AT) No. 228 of 2023

23

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

mention that the Respondent/ROC through its letter dated

16.04.2019 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'.

51. Continuing further, the Tribunal in CP No. 70/CB/2020

through its order dated 21.08.2020 had at para 13 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'.

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

Tribunal in CP(Appeal)No.70/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

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

acceptance' as held by this Tribunal.

Company Appeal (AT) No. 228 of 2023

24

53. The power of a Tribunal, to permit additional evidence to

produce/documents are within the jurisdiction of the Appellate

Authority. A document not pertinent to decide the

dispute/controversy in a given proceeding/suit, is not to be

accepted as Additional Evidence. Besides this, if there is any

lacuna or gap 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.

54. In the instant Company Appeal (AT) No. 228 of 2023, it is

worthwhile for this Tribunal to point out that in CP No.

70/CB/2020 the Registrar of Companies had filed a Report

mentioning the following:-

"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

Company Appeal (AT) No. 228 of 2023

25 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

Company Appeal (AT) No. 228 of 2023

26 'amendment' but he chose to file IA 19/CB/2023 in

CP/69/CTB/2020 seeking to receive additional documents by the

Tribunal and to consider the 'Revival of the Company'. In this

regard, the IA 19/CB/2023 in CP/69/CTB/2020 filed by the

Petitioner/Appellant before the 'Tribunal', indicates that the

Hon'ble High Court had granted permission to the Appellant /

Petitioner to file an 'Amendment Application'. However, the

Petitioner/Appellant had prayed for the reception of 'Additional

Documents' to revive the Company which relief is outside the

ambit of the Hon'ble High Court's order.

56. On a careful consideration of the Appellant's contentions,

this Tribunal on going through the impugned order dated

08.08.2023 in IA 19/CB/2023 in CP/70/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.

57. 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

Company Appeal (AT) No. 228 of 2023

27 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'.

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

Court of Orissa on 14.10.2022 disposed of W.P. (C) No. 26971 of

2022, in terms of the order dated 23.12.2021 passed by the

Hon'ble High Court of Orissa in W.P. (C) No. 35437 of 2020.

59. In fact, the Hon'ble High Court of Orissa had granted liberty

to the Appellant in W.P. (C) No. 26971 of 2022 dated 14.10.2022

to prefer an amendment application, obviously as per Section 420

of the Companies Act, 2013 because of the fact that two years

period had not expired.

60. In the present case, in CA 19/CB/2023 in CP 70/CB/2020

the IA was filed before the Tribunal on 16.10.2022 after the expiry

of two year's period from the date of dismissal order dated

21.08.2020 in CP 70/CB/2020.

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

Appellant's submissions, this Tribunal on going through the

impugned order in IA No. 19/CB/2023 in CP No. 70/CB/2020 Company Appeal (AT) No. 228 of 2023

28 dated 08.08.2023 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

reception of additional documents/additional evidence. Looking

at from any angle, the impugned order dated 08.08.2023 in IA No.

19/CB/2023 in CP No. 70/CB/2020 passed by the NCLT, Cuttack

Bench is free from any legal flaws. Consequently, the Appeal

sans merits.

RESULT

In fine, the 'instant Comp App (AT) 228/2023 is dismissed.

No costs. 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. 228 of 2023

29