Registrar Of Companies West Bengal vs Goouksheer Farm Fresh Pvt Ltd & Anr

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT) No. 127 of 2020 [Arising out of Order dated 22.01.2020 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in C.P. No. 183/KB/2020]

IN THE MATTER OF: Registrar of Companies Nizam Palace, IInd M.S.O. Building, 2nd Floor, 234/4, Acharya Jagdish Chandra Bose Road, Kolkata - 700020, West Bengal. ...Appellant

Versus Goouksheer Farm Fresh Pvt. Ltd. 39, Sambhunath Pandit Street, Kolkata 700025 (To be represented through Respondent No. 2 being the Interim resolution Professional of the company M/s Goouksheer Farm Fresh Pvt. Ltd. as appointed by NCLT Kolkata Bench as well as the Company is struck off and under CIRP].

Sanjeev Jhunjhunwala S/o Sri Ramavtar Jhunjhunwala Siddha Weston, 9 Weston Street, Suite No. 134, Kolkata 700013, West Bengal. [Interim Resolution Professional of Respondent No. 1 in CP (IB) No. 1582/KB/2019 and Applicant in CP No. 183/KB/2020 for revival of Respondent No. 1] ...Respondents

Present:

For Appellant: Mr. Sumit Kumar Jaiswal, Mr. Priyanshu Upadhyay and Mr. Kumar Anurag Singh, Advocates

For Respondent: Mr. Sanjeev Jhunjhunwala, Mr. Soumya Dutta (IRP) and Mr. Rahul Parasrampuria (CS), for Respondents No.1& 2

Venugopal M. J

Introduction

The Appellant has filed the instant Company Appeal being dissatisfied

with the order dated 22.01.2020 passed by the 'National Company Law

Tribunal', Kolkata Bench, Kolkata in C.P. No. 183/KB/2020 whereby the

Company Petition was allowed with necessary directions.

2. The 'National Company Law Tribunal', Kolkata Bench, Kolkata while

passing the impugned order dated 22.01.2020 had observed the following: -

"Ld. Counsel for the

Petitioner appeared. Ld. Dy.

ROC, WB appeared.

CP No. 183/KB/2020 is filed

by the RP for restoration of the

name of the company (M/s

Goouksheer Farm Fresh Pvt. Ltd.)

in the register maintained by the

Registrar of Companies.

2 Company Appeal (AT) No. 127 of 2020 This company is admitted in CIRP

vide order dated 13.12.2019 in CP

(IB)No. 1582/KB/2019. For

completion of CIRP effectively, we

restore this Company under Section

252(3) of the Companies Act, 2013.

We direct the ROC, WB to restore

the name of the company in the

register of companies. We further

direct the ROC, WB to not to levy

any fee/penalty to the company

because company is in CIRP."

and consequently, allowed the Company petition with this direction and

disposed of the same.

Resume of Facts

3. The Registrar of Companies (Appellant) had struck off the name of the

First Respondent / Company M/s. Goouksheer Farm Fresh Pvt. Ltd. after

complying with all the requirements of Section 248 of the Companies Act, 2013

and the relevant rules made thereunder viz. Companies (Removal of Names of

Companies from Register of Companies) Rules 2016.

3 Company Appeal (AT) No. 127 of 2020

4. The 'Financial Creditor' (M/s. P.M. Cold Storage Pvt. Ltd.) filed an

application u/s 7 of the 'I&B' Code r/w Rule 4 of the Insolvency and

Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against the

First Respondent/ 'Corporate Debtor' M/s. Goouksheer Farm Fresh Pvt. Ltd. in

CP (IB) No. 1582/KB/2019 wherein, by means of an order, the application to

initiate 'Corporate Insolvency Resolution Process' against the 'Corporate

Debtor' was admitted on 13.12.2019. Mr. Sanjeev Jhunjhunwala was

appointed as an 'Interim Resolution Professional'.

5. The second Respondent in his capacity as an 'Interim Resolution

Professional' pursuant to the direction of the 'National Company Law Tribunal',

Kolkata Bench, Kolkata filed Company Petition No. 183/KB/2020 u/s 252(3)

of the Companies Act, 2013 for restoration of the name of the First

Respondent / Company together with the prayer to allow the second

Respondent (Petitioner) to comply with the formalities of filing the pending

Annual Returns of the said Company (struck off) without the payment of the

penal fees levied by the Appellant / Authority.

6. The Tribunal through order dated 22.01.2020 disposed of the C.P. No.

183/KB/2020 ordering restoration of the Company with the direction to the

Appellant not to levy any fee / penalty to the Company because of the fact that

the Company is in 'Corporate Insolvency Resolution Process'.

7. Assailing the Correctness, validity and legality of the impugned order

dated 22.01.2020 passed by the Tribunal, the Appellant / Authority has 4 Company Appeal (AT) No. 127 of 2020 preferred the instant Appeal contending that Section 403 (1) of the Companies

Act, 2013 specifies that any document required to be filed under the Act shall

be filed within the time prescribed in the relevant provisions on payment of

such fee as may be prescribed.

Appellant's Submissions

8. The Learned Counsel for the Appellant submits that as per first proviso

to Section 403(1) of the Act, any document, fact or information required to be

submitted, filed, registered or recorded, as the case may be, under Section 92

or 137 is not submitted, filed, registered or recorded, as the case may be,

within the period provided in those Sections, without prejudice to any other

legal action or liability under this Act, it may be submitted, filed, registered or

recorded, as the case may be, after expiry of the period so provided in those

sections, on payment of such additional fee as may be prescribed, which shall

not be less than Rs. 100/- per day and different amounts may be prescribed for

different classes of companies.

9. The Learned Counsel for the Appellant contends that in terms of Rule 12

of Companies (Registration Offices & fees) Rules, 2014, the documents required

to be submitted, filed, registered or recorded or any fact or information required

or authorised to be registered under the Act shall be submitted, filed, registered

or recorded on payment of the fee or on payment of such additional fee as

applicable, as mentioned in Table annexed to these Rules. However, the

Tribunal directed the Appellant not to levy any fee / penalty to the Company.

5 Company Appeal (AT) No. 127 of 2020

10. It is the stand of the Appellant that as per Rule 87(a)(4)(d) of the 'National

Company Law Tribunal' Rules, 2016 where the Tribunal makes an order

restoring the name of a Company in the register of companies, the order shall

direct that the Company shall file pending Financial Statements and Annual

Returns with the Registrar and comply with the requirements of Companies

Act, 2013 and Rules made thereunder within such time as may be directed by

the Tribunal.

11. The Learned Counsel for the Appellant comes out with an argument that

there is no enabling provision for 'Waiver of Fees/Penalty' under the

Companies Act, 2013. It is further represented that there is no provision under

the Companies Act, 2013 empowering the Appellant to enable filing of

documents required to be registered / filed under the Act without payment of

filing fee and /or payment of additional fee.

12. The other argument projected on the side of the Appellant is that the

filing system in the office of 'Registrar of Companies' (under Ministry of

Corporate Affairs) is fully online and the system exhibits the filing fee and

additional fee (if there is a delay) pursuant to Section 403 r/w table of fees

relating to Rule 12 of Companies (Registration Offices and Fees) Rules 2014

while uploading a particular e-form/document by stakeholders and requires

payment of the same for acceptance as part of the records of the 'Ministry of

Corporate Affairs'.

6 Company Appeal (AT) No. 127 of 2020

13. The Learned Counsel for the Appellant brings to the notice of this

Tribunal that the Company had filed its 'Balance Sheet' only upto the year

31.03.2015 and 'Annual Returns' only upto the year 31.03.2016.

14. It is represented on behalf of the Appellant that the second Respondent

(IRP) has no locus standi to file an application for restoration of the Company

u/s 252(3) of the Companies Act, 2013. Besides this, it is the plea of the

Appellant that restoration of Company is not required for recovering the dues

or carrying out 'Corporate Insolvency Resolution Process' or 'Winding Up'

proceedings of the struck off Company as per Sections 248(8) and 250 of the

Companies Act, 2013.

15. In effect, it is the prime stand of the Appellant that the Tribunal had no

jurisdiction in issuing a direction to the Appellant to waive the payment of fee /

penalty and any such endeavour would be devoid of Law.

Second Respondent's Pleas

16. Section 403 of the Companies Act is to be referred and / or taken into

consideration only at the time of filing of any documents, records which is

required to be filed under this Act. Further, Rule 14 of 'National Company Law

Tribunal' Rules, 2016 empowers the 'Tribunal' to exempt the parties from

compliance with any requirement of these Rules.

17. Moreover, Rule 11 of the 'NCLT' Rules the grants power to the Tribunal to

make such orders as may be necessary for meeting the ends of justice. The

7 Company Appeal (AT) No. 127 of 2020 Appeal filed by the Appellant is not maintainable. A duty is showered on the

Registrar of Companies upon receiving the direction from the Tribunal to

restore the Company as if the name of the Company had not been struck off

from the 'Register of Companies'.

Appraisal

18. According to the Appellant, the present Appeal is well within the

limitation period as per Section 421(3) of the Companies Act, 2013 as the

Appellant's office came to know about the impugned order only on 05.02.2020

when it received the letter dated 03.02.2020 from the authorised representative

of the second Respondent enclosing the copy of the impugned order dated

22.01.2020 passed by the Tribunal, Kolkata Bench in in C.P. No.

183/KB/2020. Thereafter, the office of the Appellant had applied for a certified

copy of the impugned order on 04.03.2020 and the same was received on

11.03.2020.

19. The categorical stand of the Appellant is that the Ministry of Home

Affairs, Government of India imposed a nationwide lockdown due to COVID 19

being declared as 'pandemic' by the World Health Organisation w.e.f.

24.03.2020 which was extended from time to time by the 'Ministry of Home

Affairs' and the 'State Governments'.

20. Added further, the Appellant takes a plea that the Hon'ble Supreme

Court issued a direction for extension of the period of limitation as per order

8 Company Appeal (AT) No. 127 of 2020 dated 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3/2020. In fact, the

'National Company Law Appellate Tribunal' vide F.No. 10/37/2018 dated

24.03.2020 extended the period of limitation for filing the Appeal before it w.e.f.

15.03.2020 till further orders in terms of the direction dated 23.03.2020 issued

by the Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3/2020.

21. The Learned Counsel for the Appellant points out that the period of

limitation of 45 days in the present case will lapse on 24.07.2020 and the

details are as under:-

05.02.2020 to 04.03.2020 29 days 11.03.2020 to 14.03.2020 04 days 13.07.2020 to 24.07.2020 12 days Total 45 days and, therefore, it is contended on behalf of the Appellant that the instant

Appeal is well within the period of limitation.

22. Taking into consideration of the aforesaid sufficient pleas of the

Appellant in a careful, cautious, practical, meaningful and pragmatic manner,

when no lack of bonafides or inaction or negligence is attributable to the

Appellant, this Tribunal, by resorting to a result oriented approach and

avoiding a pedantic approach without any haziness holds that the instant

Appeal filed by the Appellant is well within the period of limitation.

23. It is to be pointed out that there are two circumstances in which the

Tribunal can exercise power to restore the name of the Company (i) when it is

9 Company Appeal (AT) No. 127 of 2020 satisfied that the Company was at the time of striking off its name from the

register, carrying on business or was in operation. (ii) When it appears to the

Tribunal that it is 'otherwise just' that the name of the Company be restored as

per decision 'M.A. Panjwani' V. 'Registrar of Companies and Ors.' reported

in (2015) 124 CLA 109(Delhi).

24. At this stage, this Tribunal amply points out that the Hon'ble Supreme

Court in the decision 'Helen C. Rebella' V. 'Maharashtra S.R.T.C.' reported

in (1999) 1 SCC at page 90 had observed that the word "just" denotes

equitability, fairness and reasonableness having a large peripheral field.

25. Furthermore, in the decision 'Sidhant Garg and Anr.' V. 'Registrar of

Companies and Ors.' reported in (2012) 171 Comp.Cas. 326 it is held that

the word "just" would mean that it is fair and prudent from a commercial point

of view to restore the Company and that the Court has to examine the concept

of 'justness' not exclusively from the perspective of a creditor or a member or a

debtor but from the perspective of the society as a whole.

26. In the decision 'M.A. Rahim and Anr.' V. 'Sayari Bai' (DB) reported in

(MANU/TN/0218/1973) it is held that the word 'just' connotes

'reasonableness' and something conforming to 'rectitude' and justice,

something equitable and fair.

27. In this connection, this Tribunal, worth recollects and recalls the

decision 'Ratanshi Panchan Tank' V. 'Registrar of Companies' Kerala and

10 Company Appeal (AT) No. 127 of 2020 others (Full Bench) reported in 1969 KLT p 858 wherein at paragraph 3

and 4 it is observed as under: -

"3. The services end when, on

being so satisfied the Registrar

proceeds to effect the registration,

or, on not being so satisfied, he

refuses registration. Although

there would appear to be no

express provision as in S. 80 of

the Indian Registration Act that,

"all fees for the registration of

documents shall be payable on

the presentation of such

documents", it seems to us

obvious that the fee payable for

the registration of a Company,

under S.611 r/w item 2 Schedule

X of the Companies Act, is

payable on the presentation for

registration of the documents

specified in sub-section (1) of S.

33 of that Act. That would only

11 Company Appeal (AT) No. 127 of 2020 be in keeping with the general

scheme by which all statutory

fees are invariably made payable

before the commencement of the

services for which they are

intended.

4. The petitioner's case is that

he has not been rendered the

services for which he paid the fee

and that therefore he is entitled to

get back the fee but the Registrar

never refused the services; in fact

he has already rendered part of the

services; and if the services have

not been completed it is only

because the petitioner does not

want them. The Registrar is, and

has been, ready to perform the

services for which the fee was paid

and complete the registration, or if

the Company cannot be registered

under the provisions of the Act, to

refuse registration. Whatever be 12 Company Appeal (AT) No. 127 of 2020 the rights of a person who pays

money under a contract for services

to be rendered but subsequently

declines the services, we do not

think that, in the absence of a

provision to that effect in the

statute concerned, a person paying

a fee under a statute has the right

to get back the fee because he no

longer wants the services for which

the fee was paid. Whether he

would have a cause of action for

damages or for compelling the

services, if the services are

improperly declined, is an

altogether different question."

28. In the decision 'Ascot Shoes Private Limited' V. 'Registrar of

Companies' reported in (2017) 2 CompLJ118(Del) wherein at paragraph

12 it is among other things observed as under:-

"12.........At

the same time, however, there is

no gainsaying the fact that a

greater degree of care was 13 Company Appeal (AT) No. 127 of 2020 certainly required from the

petitioner Company in ensuring

statutory compliances. Looking

to the fact that annual returns

and balance sheet were not filed

for almost fourteen years, the

primary responsibility for

ensuring that proper returns and

other statutory documents are

filed in terms of the statute and

the rules, remains that of the

management."

and ultimately the petition was allowed by ordering the restoration of

Company's name to the Register maintained by the 'Registrar of

Companies' subject to the payment of costs of Rs. 22,000/-. Furthermore,

liberty was granted to the Respondent therein to proceed with penal action

against the Company, if so advised, under Section 162 of the Companies

Act, 1956.

29. Section 252(1) of the Companies Act, 2013 deals with filing of an

'Appeal to Tribunal' by any person aggrieved by an order of the Registrar,

notifying a Company as dissolved u/s 248 etc. Indeed, an application to

the Tribunal before the expiry of 20 years from the publication in the

Official Gazette of the notice under sub-section 5 of Section 248 of the Act 14 Company Appeal (AT) No. 127 of 2020 can be made by any Member, Creditor or Workman thereof being aggrieved

by the order of 'Registrar of Companies' striking off the name of the

Company from the register of Companies as per Section 252(3) of the

Companies Act.

30. In fact, every person having a pecuniary claim against the

Company whether actual or contingent is a 'Creditor' as per decision

'State of Andhra Pradesh' V. 'Hyderabad Vegetable Products Company

Ltd.' reported in 1962 32 Comp. cases p.164 (AP).

31. It is pertinently pointed out that Section 92 of the Companies Act,

2013 r/w Rule 11 of the Companies (Management and Administration)

Rules, 2014 provides for filing of 'Annual Return' of a Company in the

prescribed form. By filing the 'Annual Return' mentioning enough

disclosures at the end of each 'Financial Year' no doubt, the 'Shareholders'

interests and that of public' will be safeguarded. In reality, the liability

under Section 92 of the Companies Act, 2013 is that even a defunct

Company, like every other Company is under an obligation to file the

statutory 'Annual Return' till it is wound up or till such time the Company

is struck off by the Registrar as per Section 248 of the Companies Act,

2013.

32. Be it noted, that Section 403 of the Companies Act speaks of 'Fee

for filing' etc. The Table of Fees for filing, etc. is given as Annexure to

Companies (Registration Offices and Fees) Rules, 2014.

15 Company Appeal (AT) No. 127 of 2020

33. It is relevant to point out that a Court of Law / Tribunal may read

any ancillary / incidental power in aid of main power. But, such an aid of

incidental power ought not to fall in the domain of substantive power of

any fora because substantive power is to be expressly conferred by the

statute.

34. One cannot brush aside a primordial fact that there is no

provision under the Companies Act, 2013 which permits the Appellant to

file the documents sought to be registered /filed under the Companies Act

without payment of the requisite filing fee and / or payment of additional

fee. To put it cocksurely, there is no express / enabling for waiver of fees /

penalty under the Companies Act.

35. It is to be remembered that Rule 12 of Companies (Registration

Offices and Fees) Rules, 2014 says that the documents required to be

submitted, registered or recorded or any fact or information required or

authorised to be registered under the Companies Act shall be submitted,

filed, registered or recorded on payment of the fee or on payment of such

additional fee as applicable, as mentioned in table annexed to the Rules.

36. One cannot remain oblivious of the fact that, against the First

Respondent / Company 'Corporate Insolvency Resolution Process' was

initiated by a 'Financial Creditor' / P.M. Cold Storage Pvt. Ltd. in CP IB

1582/KB/2019.

37. An 'Appeal' can be filed by a 'person' aggrieved by the 'Registrar of

Companies' 'Order' notifying the dissolution of the Company, within three 16 Company Appeal (AT) No. 127 of 2020 years from the date of order of the 'Registrar of Companies' communicating

the reasons thereto.

38. In Law, the dissolution of a Company will not result in removing

the 'Debtors' liability of the Company for the purpose of discharging the

dissolved Company's obligations / liabilities /payment(s) it can carry on its

operations.

39. As regards the plea of the Appellant that the restoration of

Company is not needed for recovery of due(s) or carrying out the

'Corporate Insolvency Resolution Process' or winding up of the struck off

Company as per Sections 248(8) and 250 of the Companies Act, 2013, it is

to be pointed out that the C.P. No. 183/KB/2020 before the Tribunal was

filed by the 'Interim Resolution Professional' (second Respondent) based

on the direction issued by the Tribunal in its order dated 13.12.2019 to

file necessary petition for restoration of the Company and hence, the said

C.P. No. 183/KB/2020 is maintainable in Law.

40. In so far as the plea taken on behalf of the second Respondent

that Rule 11 of 'National Company Law Tribunal' Rules, 2016 empowers

the Tribunal to make such orders as may be necessary for meeting the

ends of justice, it is to be pointed out that the same cannot be pressed into

service, when Section 403(1) of the Companies Act, 2013 deals expressly

with fee for filing etc. coupled with Rule 12 of Companies (Registration

Offices and Fees) Rules, 2014 are regarded as an inbuilt, self-contained

17 Company Appeal (AT) No. 127 of 2020 and exhaustive ones. Viewed in that perspective, the invocation of Rule 11

of 'NCLT' Rules, 2016 by the second Respondent is of no avail.

41. Dealing with the stand taken on behalf of the second Respondent

that Rule 14 of 'National Company Law Tribunal' Rules, 2016 empowers

the Tribunal to exempt the parties on sufficient cause being shown from

compliance with any requirement of these Rules etc., it is to be pointed out

that when there is an existence of Rule 12 of Companies (Registration

Offices and Fees) Rules, 2014 which is quite explicit, unambiguous,

admits of no exception and deals with the documents required to be

submitted, filed registered etc. to be made / done on payment of the fee or

on payment of such additional plea as applicable, as mentioned in table

annexed to these Rules, seeking umbrage to Rule 14 of 'National Company

Law Tribunal' Rules, 2016 is an otiose one, because of the fundamental

reason that the procedural wrangle cannot be permitted to be shaked or

shackled with. Therefore, the contra stand taken on behalf of the second

Respondent is not acceded to by this Tribunal.

42. For the foregoing detailed discussions and ongoing through the

impugned order of the Tribunal in C.P. No. 183/KB/2020 dated

22.01.2020, this Appellate Tribunal, comes to a resultant conclusion that

the issuance of direction to the Appellant / ROC, West Bengal to restore

the name of the Company (M/s Goouksheer Farm Fresh Pvt. Ltd.) (First

Respondent - in Appeal) for completion of 'Corporate Insolvency Resolution

Process' effectively in the register of Companies cannot be found fault with.

18 Company Appeal (AT) No. 127 of 2020 However, the further direction issued by the Tribunal, to the Appellant 'not

to levy any fee / penalty' to the Company because Company is in 'Corporate

Insolvency Resolution Process' is legally untenable, especially in the

absence of any express provision under the Companies Act, 2013 and the

relevant Rules for waiver of fees / penalty in respect of filing of documents

required to be registered / filed under the Companies Act and the said

direction is set aside by this Tribunal, to secure the ends of substantial

justice. Accordingly, the instant Appeal succeeds.

Disposition

In fine, the present Appeal is allowed. No costs.

[Justice Venugopal. M] Member (Judicial)

[Kanthi Narahari] Member (Technical)

NEW DELHI

19th November, 2020 ss 19 Company Appeal (AT) No. 127 of 2020