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Judgment
[Justice Rakesh Kumar, Member (Judicial)]
The Present Appeal under Section 421 of the Companies Act, 2013 has been preferred against an order dated 14.12.2020 passed by National Company Law Tribunal, (hereinafter referred to as NCLT) Kolkata Bench at Kolkata in CP No. 74/KB/2019. By the said order Ld. NCLT rejected the application filed under Section 252 (3) of the Companies Act, 2013 which was filed by the Appellant herein with a prayer to restore the Company/Appellant on the Register of Registrar of Companies West Bengal (herein after referred to as RoC).
The present appeal has got a checkered history. Accordingly, it is necessary to delineate certain facts.
The Appellant/Company was incorporated in the year 1984 under the provisions of Companies Act, 1956 with the Registrar of Companies (RoC), NCT Delhi and Haryana. However, subsequently on request made by the Company/Appellant by order dated 16.10.2001 the Appellant /Company was permitted to change of registered office from NCT Delhi to West Bengal and finally by order dated 16.01.2002 the RoC West Bengal issued certificate of Registration.
After being registered with the RoC West Bengal due to some reason under simplified Exit Scheme, 2005 the Appellant/Company requested for approval of RoC West Bengal for striking off the name of the Company and due to this reason for subsequent years for some time accounts and returns of the Company were not filed by the Appellant to RoC. Thereafter, notices under Sections 560(1), 560(2), 560(3) of the Companies Act, 1956 were issued by the Registrar of Companies. The said notices were issued in the month of July, 2015.
First notice dated 15.07.2010 which has been brought on record as Annexure-8 to the Memo of Appeal at running page 112 indicated that pursuant to Section 560(1) of the Companies Act, 1956 the Assistant Registrar of Company was to conduct an enquiry as to whether the Company was carrying business or in operation. Finally on 28.11.2011 vide Annexure- 9 running page 115 notice was issued. In view of sub section (5) of Section 560 of the Companies Act, 1956 the name of the Appellant/Meghdoot Services Ltd. was struck off from the Register of the Registrar of Company and the Company was dissolved.
Despite the fact that the Appellant Companies name was struck off finally by an order dated 28.11.2011 at much belated stage i.e. in the year 2014, one Viswanath Agarwal, an erstwhile director of the Company filed an application under Section 560 (6) of the Companies Act, 1956 before the Calcutta High Court vide CP No. 936 of 2014 for restoration of name of the Appellant/Company with the RoC.
The said Company application was allowed on 13.11.2014 by Hon’ble Single Bench of the Calcutta High Court. We think it appropriate to reproduce the order of Calcutta High Court Single Judge which is at running page 118 and 119.
“Let the affidavit of service and the statement showing calculation of fees and additional fees payable for e-filing of the pending statutory documents be taken on record. Perusing the said statement, it appears that a sum of Rs. 83,400/- would be due from the company now if the records and documents not filed earlier were to be furnished today. Subject to the company paying a sum of Rs. 90,000/- to the Registrar of Companies within a fortnight from date, the name of the company will be restored to the list of the active companies and the company and its officials will be given access to the relevant portal. Upon the money being tendered, the same will be deposited in the Central Government’s account where penalties, fines and fees are put in. For a period of two years from date, the company should not make any default in depositing the documents required to be deposited under the companies Act. In case of any default, the Registrar will be entitled to strike off the name of the company, upon notice to it, on the strength of this order. C.P. No. 936 of 2014 is allowed accordingly”.
In view of the aforesaid order dated 13.11.2014 it was submitted by Ld. Counsel for the Appellant that name of the Company was restored to the list of active Companies. However, fact remains that after the order dated 13.11.2014, a recall petition was filed by one of the shareholder of the Company vide CA No. 423 of 2015 in CP No. 936 of 2014 for recall of the order dated 13.11.2014 passed in CP No. 936 of 2014 by Hon’ble Calcutta High Court.
This Petition i.e. CA No. 423 of 2015 was allowed by detailed reason assigned by the Hon’ble Single Bench by its order dated 21.07.2015 and by this order earlier order i.e. order dated 13.11.2014 allowing restoration of the company to the RoC was recalled. Consequently the Appellant/Companies name remain struck off and Company was having no legal existence.
It was not end of the matter but again an Appeal was filed before the Division Bench of the Calcutta High Court against order dated 21.07.2015 passed in CA No. 423 of 2015 whereby earlier order passed in 936 of 2014 was recalled. This Appeal i.e. A.P.O.T. No. 386 of 2015 was heard by a Division Bench of the Calcutta High Court. The Division Bench assigning detailed reason by Judgment dated 11.05.2016 dismissed the Appeal and approved the order passed in CA No. 423 of 2015. In substance the status of the Company again came to as an struck off company having no existence.
It is profitable to incorporate the operative portion of the Judgment of Hon’ble Division Bench of Calcutta High Court comprising of Justice Ms. Indira Banerjee (as she then was) and Mr. Sahidullah Munshi dated 11.05.2016 as follows:
“In view of the assertion made by the erstwhile directors of the Company, including Viswanath Agarwal, in their affidavits and indemnity bonds in support of their prayer for striking off the name of the Company from the Register, the Court could not have been satisfied that the Company was carrying on business or was in operation. The directors including the applicant under Section 560 (6) had asserted to the contrary. The Order dated 13.11.2014 does not disclose the reasons for arriving at the finding that it was just that the Company be restored to the Register. In any case, an application could have been filed under Section 560 (6) only if a Company, or any member or creditor felt aggrieved by the Company having been struck off. The Company having been struck off on the prayer of the Company itself and/or its directors, there can be no question of the company being aggrieved by the striking off. Viswanath Agarwal who had himself prayed for striking off also could not be aggrieved by the striking off. For the reasons discussed above, the appeal is dismissed and the judgment and the order under appeal is affirmed”.
Finally the order passed by Division Bench of Hon’ble Calcutta High Court was affirmed by Hon’ble Supreme Court in Petition for Special Leave to Appeal (c) No. 33287 of 2016 copy of same has been brought on record as Annexure-15 to the Memo of Appeal.
Mr. Abhishek Gupta, Ld. Counsel for the Appellant assailing the impugned order tried to persuade the court that the earlier order passed by Ld. Single Judge of the Calcutta High Court in CP No. 936 of 2014 was primarily interfered with by another order on the ground that the Petition for revival/restoration of the Company was not filed by competent person particularly shareholder etc. However, the application i.e. CP No. 74/KB/2018 was filed by one of the shareholder who was competent to trigger the Petition for restoration of the Company on Register of RoC under the provisions contained in Section 250 to 253 of the Companies Act, 2013. Ld. Counsel emphasized that in not entertaining the application filed before the NCLT vide CP No. 74 of 2018 which was having no bearing with earlier orders passed by either Single Bench or Division Bench of the Calcutta High Court, the NCLT has committed serious error. Accordingly, it was argued that the order impugned is liable to be set aside and NCLT can be directed to reexamine the case of the Appellant for restoration of the Company/Appellant on the Register of the RoC.
Mr. Kamal Kant Jha, Ld. Sr. Panel Counsel Govt. of India appearing on behalf of RoC supports the impugned order. He submits that once the issue i.e. non-restoration of the name of the company on the Register of RoC has already been set at rest up to the Hon’ble Supreme Court, there is no reason to find any fault in the impugned order and the Appeal is fit to be rejected.
Besides herein Ld. Counsel for both the parties we have minutely examined the materials available on record and also relevant provisions contained in the Companies Act, 1956 and Companies Act, 2013. In the Companies Act, 1956 the power for striking off the company was primarily incorporated in Section 560 of the Act.
In the present case we have noticed that under Section 560 (1), 560 (2) and 560 (3) notices were issued due to non-filing of the return/ statement of account before the RoC. It has not been disputed that from the Appellant side any steps were taken to cure the defect enabling the Registrar to pass an order for withdrawal of the notice. On the contrary after waiting for long time finally on 28.11.2011 exercising power under sub Section (5) of Section 560 of the Companies Act, 1956 the Appellant/Companies name was struck off and the Company was directed to be dissolved.
Even before passing of this order it is a stand of the Appellant itself that much earlier under the simplified exit scheme, 2005 the Appellant/Company had prayed for approval of the RoC, West Bengal for striking off the name of the Company. In any event the name of the company was finally struck off on 28.11.2011 and thereafter there is no material on record to suggest that what was the reason for sitting tight over the matter for almost about more than three years. Only thereafter an application was filed by an Ex-Director of the Company for restoration/revival of the company.
We have perused the order whereby the Hon’ble Single Bench of the Calcutta High Court allowed the application i.e. CP No. 936 of 2014 on payment of sum of Rs. 90,000/- to the Registrar of Companies.
This order was already recalled by another order i.e. order dated 21.07.2015 by another Single Bench of the Calcutta High Court in CA No. 423 of 2015 and this order i.e. recall order was approved by assigning detailed reason by the Division Bench of Hon’ble Calcutta High Court. The order of the Division Bench of Calcutta High Court has finally been upheld by Hon’ble Supreme Court.
On going through the order dated 13.11.2014 it is difficult to decipher as to whether the Appellant in terms of provision contained in Section 252 (3) of the Companies Act, 2013 had given any indication that at the time of striking off the Company i.e. as on 28.11.2011 the Appellant/Company was carrying on any business or was in operation nor there was any otherwise situation to justify the restoration of name of the Company. It is true that this Tribunal is taking lenient view in Appeals filed against the refusal of restoration of the Company but we are of the view that if we adopt such leniency in each and every Appeals certainly the provision contained under Section 248 of the Companies Act, 2013 may be termed as redundant. We are conscious that being a Statutory Appellate Tribunal we are bound to follow the statutory provisions and we may not travel beyond the provisions of the statute.
In the present case considering the fact that dispute which is being raised before this Appellate Tribunal has finally been set at rest by Hon’ble Supreme Court there is no reason to pass a different order than to dismiss this Appeal.
Accordingly, the appeal stands dismissed and order passed by NCLT dated 14.12.2020 passed by National Company Law Tribunal, Kolkata Bench, Kolkata is hereby approved.