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Judgment
24.03.2025: This appeal is filed against an impugned order dated 11.10.2022 whereby an application IA No. 106/2022 filed in Company Petition (MB) No. 372 of 2021 was dismissed and modification sought for was never allowed.
The Learned Counsel for the Appellant filed a petition bearing No. C.P. No. 372/2021 under Section 252(3) of the Companies Act, 2013 of the following prayer:
“…… (c) If sufficient provision has not been made, for an order to Respondent No. 1 to now make sufficient provision for discharge of Respondent No. 2’s debts, including but not limited to restoring Respondent No. 2 to the register of members and/or liquidating its assets and/or calling upon Respondent Nos. 3-5’s undertaking to ensure repayment of Respondent No. 2’s debts to the Petitioner.”
(Emphasis supplied)
The Registrar of Companies viz. Respondent No. 1 herein had given no objection to the allowing of the company petition. The said no objection of the RoC read as follows:
“7.I say & submit that the petition has been received by this office from ATA Freight Line (I) Pvt. Ltd. stating that the Petitioner is a Creditor of Respondent No. 2. Thus as of today, the Respondent No. 2 owes the petitioner the principal sum of Rs. 43,49,134/- and hence is willing to revive the company.
8.In view of above, this Hon’ble Tribunal may allow the Petition to restore the name of the company in the interest of the creditors, if deem fit & proper.”
On the basis of the petition above as well as no objection given by the RoC, the Ld. NCLT has passed the following order on 22.03.2022:
“1.The Petition has been filed by ATA Freight Line (India) Private Limited under Section 252 of the Companies Act, 2013 (hereinafter as "Act'') praying for restoration of the Company's name in the Register maintained by the Registrar of Companies, Mumbai (hereinafter as "RoC''). In this hearing, the Petitioner was represented by Mr. Bimal Rajasekhar, Advocate. The RoC has no objection if the petition is al1owed by this bench. The RoC has filed its report.
2.The Learned Representative for the Petitioner submits that the Company was incorporated on 27.01.2003.
3.This Bench heard the concerned Parties. Upon considering the facts and circumstances of this present Petition, this Bench Is of the view that it would be just and proper to order restoration of the name of the Petitioner Company in the Register of Companies maintained by the RoC.
4.Accordingly, this Petition is Allowed and the restoration of the Petitioner Company's name, i.e., ATA Freight Line (India) Private Limited in the Register of Companies maintained by the RoC, is hereby ordered, with a direction that the Company shall comply with the Provisions of the Act. Consequentially thereupon the Bank Account/s, if freezed, shall get defreezed which, can be operated by the Petitioner Company. No cost is being imposed as the Petition has been filed by the Creditor to the Company.
5.This Petition is disposed of on the terms directed above. The RoC shall give effect to this Order. The Company, i.e ATA Freight Line (India) Private Limited is directed to file all the required documents and shall fulfil other relevant statutory compliances within 30 days from Restoration of its name in the Register of Companies maintained by RoC.”
Since vide the order dated 22.03.2022, instead of restoring the Respondent No. 2 Company, the petitioner/appellant company was restored, hence an application for modification of the order dated 22.03.2022 was filed which application came to be decided vide the impugned order. However, on the said application, an order dated 22.08.2022 was also passed as under:
“IA/106/2022 The above application is filed for correcting the name of the petitioner company as "Sun Clearing and Forwarding Services Private Limited" instead of "ATA Freight Line (India) Pvt. Ltd." as wrongly mentioned in the order dated 22.03.2022. Upon perusing the main Company Petition, it was observed that no prayer with regard to the restoration of the name of "Sun Clearing and Forwarding Services Private Limited" was sought in the main Company Petition. Therefore, list this matter for clarification to 03.10.2022.”
Thereafter, on dated 11.10.2022 the following impugned order was passed:
“IA/l06/2022:- The above IA is filed by the Petitioner claiming the following reliefs:
a)Modify the order dated 22 March 2022 by making it clear that it is the 2nd Respondent company, Sun Clearing and Forwarding Services Pvt. Ltd., which it to be restored and not the Petitioner.
b)Modify the order dated 22 March 2022 by also directing the 1st Respondent to disclose as to what provisions were made by it under section 248(6) for protecting the interests of Respondent no.2's creditors before striking off Respondent no.2's name from the register of companies.
The Petitioner filed the main Company Petition 372 of 2021 claiming the following reliefs:-
(A)Respondent no. 1, the Registrar of Companies, Mumbai be directed to disclose as to what provisions have been made by it under section 248(6) for protecting the interests of Respondent no.2's creditors before striking off Respondent no.2's name from the registrar of companies.
(B)If "sufficient provision" has been made to the satisfaction of Respondent no.1, for an order and direction to Respondent no.1 to invoke/utilise the same to pay Respondent No.2's debts to the Petitioner and/or an order and direction to Respondent no.3-5 to comply with their undertaking as may have been given to Respondent No.1.
(C)If sufficient provision has not been made, for an order to Respondent no.1 to now make sufficient provision for discharge of Respondent no2's debts, including but not limited to restoring Respondent no.2 to the register of members and/or liquidating its assets and/or calling upon Respondent nos.3- 5's undertaking to ensure repayment of Respondent no.2's debts to the Petitioner.
(D)Pass any other order and make such other provision as it may deem just for - placing Respondent no.2's creditors in the same position as nearly as may be as if the name of the company had not been struck off from the register of members.
This Tribunal inadvertently passed final order on 22nd March 2022 in the main CP as if the Petitioner sought restoration of the name of M/s Sun Clearing and Forwarding Services Private Limited. However, inadvertently ordered the restoration of the name of the Petitioner Company that is ATA Freight Line India Private Limited instead of M/s Sun Clearing and Forwarding Services Private Limited in the order.
Now the Petitioner filed the above IA 106 of 2022 for modification of the order dated 22nd March 2022 for restoration of M/s Sun Clearing and Forwarding Services Private Limited. As sated above no specific prayer was sought by the Petitioner for restoration of the name of M/s Sun Clearing and Forwarding Services Private Limited in the main Company Petition except the above reliefs mentioned above.
The-above IA is filed by the Petitioner only taking advantage of the inadvertent error in the order passed by this Tribunal.
Under these circumstances this Tribunal is of the opinion that there are no merits in the above application and the same is liable to be rejected. Accordingly, the above IA is dismissed.”
It is the submission of the Learned Counsel for the Appellant that right from beginning the Appellant was seeking restoration of Respondent No. 2 Company viz. M/s Sun Clearing and Forwarding Service Pvt. Ltd. since it owed liabilities to different persons including the Appellant viz. a principal sum of Rs. 43,49,134/- with interest, hence the permission was sought to revive the Company.
Admittedly notice was issued in the CP (MB) No. 372/2021 to Respondent No. 2 by the Ld. NCLT but Respondent No. 2 had chosen not to appear. Moreover, no objection accorded by Respondent No. 1, viz. the RoC, Mumbai was also in respect of revival of Respondent No. 2 Company as admitted by Respondent No. 1. Hence, in the circumstances, order dated 11.10.2022 passed by Ld. NCLT needs to be modified to an extent the Respondent No. 2 Company viz. M/s Sun Clearing and Forwarding Service Pvt. Ltd. is restored on the register of RoC. The appeal is thus allowed. Pending application(s) are also disposed of.