Bajaj Promoters Pvt Ltd. vs The Registrar of Companies

01.07.2022: Heard Mr. V. Arvind Rajagopal, the Learned Counsel appearing for the Applicant / Appellant in IA/482/2022 in the Instant Company Appeal (AT)(CH) No.40/2022.

According to the Learned Counsel for the Applicant / Appellant, the Respondent had initiated proceedings under Section 248 of the Companies Act, 2013 for the purpose of ‘striking off’ the name of the Applicant / Appellant Company from the ‘Register’ maintained by the Respondent / Registrar of Companies.

It is a stand of the Applicant / Appellant that the Respondent / Registrar of Companies had issued ‘Notice’ in Form No. STK 5 on 04.06.2018 bearing No.ROC/CHN/S.248/STK–5/1/2018 mentioning that the Appellant Company was not carrying on any business or operation for a period of two years immediately preceding the Financial Year and subsequently issued Form No.STK-7 on 09.08.2018 bearing No.ROC/CHN/STK-7/2018 notifying to the ‘Applicant / Appellant Company’ before ‘struck off’ the ‘name of the Company’ from the Register of Companies.

The Learned Counsel for the Applicant / Appellant brings to the ‘Notice’ of this ‘Tribunal’ that the Applicant / Appellant filed an Application in CA/1458/2018 before the National Company Tribunal, Chennai under Section 252 (3) of the Companies Act, 2013, pursuant to the ‘striking off’ of the name of the Company by the Registrar of Companies and that the National Company Tribunal, Chennai, as per its order dated 30.01.2019 had dismissed the Application stating that the Company had not filed its ‘Annual Returns’ from the year 2001 onwards till the date of the ‘Impugned Order’ i.e., for more than 15 years the Appellant / Applicant Company was not doing ‘any business’ and not filing ‘Annual Returns’.

The Learned Counsel for the Applicant / Appellant in IA/482/2022 in Company Appeal No. (AT)(CH) No.40/2022 points out that the Applicant / Appellant had inadvertently moved to the National Company Law Tribunal, Chennai as per Section 420 (2) of the Companies Act, 2013 read with Rule 154 of the National Company Law Tribunal Rules, 2016 with a ‘bona fide belief’ and based on ‘legal advice’ against the ‘Impugned Order’ dated 30.01.2019, instead of preferring an ‘Appeal’ before the ‘Appellate Tribunal’.

It is not in dispute that the ‘Review Application’ filed before the National Company Law Tribunal, Division Bench – II, Chennai in S.R. No.949 of 2019 in CA/1458/2018 was dismissed by the National Company Law Tribunal, Division Bench – II, Chennai, on 30.03.2021.

The Learned Counsel for the Applicant / Appellant contends that Section 14 of the Limitation Act, 1963 provides for ‘exclusion of time’, of proceeding bonafide in Court ‘without jurisdiction’ and as such by the ingredients of Section 14 of the ‘Limitation Act, 1963’, the time spent, in regard to the filing of the ‘Review Petition’ and disposal of the same by the National Company Law Tribunal, Division Bench – II, Chennai can be excluded in regard to the ‘computation of Limitation period’.

The Learned Counsel for the Applicant / Appellant adverts to Section 433 of the Companies Act, 2013, which enjoins that the Provisions of the Limitation Act 1963 (36 / 1963) shall, as far as may be, apply to Proceedings or Appeals before the ‘Tribunal’ or the ‘Appellate Tribunal’, as the case may be.

In this connection, this ‘Tribunal’ relevantly points out that Section 14 of the Limitation Act, 1963 clearly envisages that the Legislature has enacted this Section to ‘exclude a certain period’ covered by a ‘Bonafide Litigant Activity’. However, in the instant case, the Review Application in SR No.949 of 2019 filed by the Applicant / Appellant is not before the ‘Tribunal’ without jurisdiction, to try the ‘subject matter’, in issue. In fact, the Applicant / Appellant has filed the ‘Review Application’ seeking to ‘annul’ the order dated 30.03.2021 passed by the ‘Tribunal’.

A clear cut reading of the Section 14 of the Limitation Act, 1963 unerringly points out that the ingredients of Section 14 of the Limitation Act, 1963 applies only in relation to a matter in which the litigant projects his Application before the ‘Court’ / ‘Tribunal’ having no jurisdiction to entertain it, but also when the Applicant files the Application in certain ‘Court’ / ‘Tribunal’ in a wrong forum consequence of a bonafide mistake of Law or defect of Procedure.

However, in the instant case, the Applicant / Appellant was prosecuting the ‘Review Application’ in SR No.949/2019 under Section 420 (2) of the Companies Act, 2013 read with Rule 154 of the National Company Law Tribunal, 2016 before the ‘National Company Law Tribunal, Division Bench-II, Chennai’ and the aforesaid ‘Tribunal’ had dismissed the ‘Review Application’ on 30.03.2021 by coming to the conclusion that the ‘Judgment’ passed in CA/1458/2018 does not manifest any self-evident, error, etc. It also proceeded to observe fact that ‘Review Application in SR/949/2019 in CA/1458/2018’ was nothing but an attempt to reopen the review the order passed by the National Company Law Tribunal, Division Bench-II, Chennai on 31.01.2019.

Be that as it may, in view of the fact that Section 14 of the Limitation Act, 1963 applies to the ‘Court’ / ‘Tribunal’ whether the ‘exclusion of time’ bonafide in ‘Court’ / ‘Tribunal’ without jurisdiction and in the instant Case, ‘Review Application’ was filed before the ‘National Company Law Tribunal, Division Bench-II, Chennai’ to review an earlier order in CA/1458/2018 passed on 30.01.2019, by no stretch of imagination, be said to be ‘Tribunal’ possessing ‘no jurisdiction’, viewed in that light, the invocation of Section 14 of the Limitation Act, 1963 on behalf of the Applicant / Appellant sans merits. Resultantly, IA/482/2022 ‘Condonation of Delay’ filed by the Applicant / Appellant in the Instant Company Appeal (AT)(CH) No.40/2022, fails.

In fine, the IA/482/2022 in the Instant Company Appeal (AT)(CH) No.40/2022 on the file of the ‘Tribunal’ is dismissed. No costs.

In view of the fact that this ‘Tribunal’ had dismissed the ‘Condonation of Delay Application’ in IA/482/2022 in the Instant Company Appeal (AT)(CH) No.40/2022, the main Company Appeal (AT)(CH) No.40/2022 also does not survive for ‘Adjudication’ and accordingly, the same is also dismissed. No costs.