Proq Venture Advisors Pvt. Ltd vs Roc Mumbai & Anr

PROQ Venture Advisors Pvt. Ltd. ...Appellant

Versus

RoC Mumbai & Anr. ...Respondents

Present: For Appellant : Mr. Alakh Alok Srivastava, Mr. Amrendra Sinha, Mr. Chandan Kumar Singh, Advocates

ORDER

30.07.2019 The Appellant Company was incorporated on 13th December,

2011 under the Companies Act, 1956. It failed to file 'financial statements' and

'annual returns'; also it did not carry on any business activity since its

incorporation; neither applied for PAN number nor had opened a Bank account

and it never filed 'Income-tax Return'. It was in this background, the Registrar

of Companies, Mumbai by order dated 7th July, 2017 struck down the name of

the company and dissolved it.

The Appellant preferred an application u/s 252 of the Companies Act,

2013 for restoration of the company by setting aside the order of the Registrar of

Companies, Mumbai only on one of the ground that no opportunity was given to

the company or its Directors while passing order under Section 248 of the

Companies Act, 2013. The National Company Law Tribunal (hereinafter referred

to as the 'Tribunal') by order dated 10th October, 2018 took into consideration

the facts and circumstances of the case and dismissed the petition. The said

order is under challenge but as it is barred by limitation in terms of the Proviso 2

to sub-section (2) of Section 421 of the Companies Act, 2013 this Appellate

Tribunal has no jurisdiction to condone the delay and in fact no petition for

condonation has been filed.

Learned counsel for the Appellant submitted that one Miscellaneous

Application No. 1772 of 2019 in C.P. No. 1677/252(1)/2018 was filed by the

Company under sub-section (2) of Section 420 for rectification of the mistake

and thereby to recall and review of the order. However, we are of the view that

the orders cannot be reviewed or recalled under sub-section (2) of Section 420,

which reads as under:

"420. Orders of Tribunal

(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."

The Tribunal has inherent power under Rule 11 of the National Company

Law Tribunal Rules, 2016 which gives power to make such order as may be

Company Appeal (AT) No. 170 of 2019 3

necessary for meetings the ends of justice. One may argue that in the said Rule

i.e. Rule 11 if an error is apparent on the face of the record, the Tribunal can

exercise its inherent power under Rule 11 to make such order as may be

necessary for meeting the ends of justice. The only ground taken by the Appellant

is that the date of incorporation of the company has been wrongly reflected as

25th October, 2003 in original order. However, even if such error is corrected and

read as 14th March, 2011, the substantive part of the order passed on 10th

October, 2018 cannot be interfered.

The other ground taken is that the company or its Directors were not heard

while the notice was issued by the Registrar of Companies, but we are not inclined

to remit the matter or set aside the order of the Registrar of Company as it will be

futile exercise as the application under Section 252 has been decided on merit.

This apart, we have also heard the learned counsel appearing on behalf of the

Appellant on merit and we find that there is no ground of interference with either

of the orders. In absence of any merit, the appeal is dismissed. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical) /ns/gc

Company Appeal (AT) No. 170 of 2019