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Judgment
O R D E R
07.04.2022: The Appellant/Petitioner has preferred the instant CA (AT) No. 43 of 2021 before this Tribunal, aggrieved against the order dated 10.12.2020 in CA/1275/2019 passed by National Company Law Tribunal, Special Bench, Division Bench-II Chennai in dismissing the Application filed by the Appellant/Petitioner (under Section 252 of the Companies Act, 2013).
According, to the Ld. Counsel for the Appellant (National Company Law Tribunal, Special Bench, Division Bench-II Chennai) in CA/1275/2019 dated 10.12.2020 on passing the impugned order at paragraph 5 to 9 had observed the following:
“5.Heard Perused Pleadings and document filed in support of the contentions of both the parties. From the record of proceedings, it is seen that an opportunity was afforded to the Applicant herein by this tribunal on 29.09.2020 to file additional documents if any, in order to prove that the Company is active and also to satisfy that the Company is doing business for the purpose for which it was incorporated.
6.Perusal of the Memorandum of Association of the Applicant company manifest the fact that the company was established to carry out all types of legal services, asset recovery services, asset management services and other related services to all the Banks, financial institutions, corporates and other entities. However, we find it strange that a company which was incorporated to provide legal services, has failed in its duties of filing of statutory returns before the Respondent as mandated under the Companies Act, 2013.
7.Further from the cause title of the Application, it is seen that the present Application has been filed by the Applicant in the capacity as a Director of the Company. This Tribunal is unable to comprehend as to how a Company, which was struck off from the Register maintained by the Respondents as early as on 27.08.2018 for failing to make statutory compliance, can pass a Board Resolution on 18.10.2019, authorizing the Director of the Company to file an Application for restoration of the name of the Company under Section 252 of the Companies Act, 2013.
8.In spite of sufficient opportunity granted, the Applicant Company has failed to place on record sufficient documents to show that the Company is active and running business, and has also miserably failed to establish that it has been carrying on its business for the purpose for which it was incorporated. The Applicant Company has also not placed on record the balance sheet of the Company. The Applicant has also miserably failed to substantiate even on the ‘just’ ground as available under Section 252(3) of the Companies Act, 2013 in order to revive the name of the Company.
9.Thus, after perusal of the documents filed by the Applicant, and for the reasons stated supra, this Tribunal is of the considered view that the Respondent is right in striking off the name of the Company and as such the order passed by the Respondent does not warrant any interference. Hence, we are constrained to dismiss the Application filed by the Applicant and accordingly the Application stands dismissed, however without costs.”
The grievance of the Ld. Counsel for the Appellant is that the Tribunal has merely confirmed the impugned order of the concerned Authority and ultimately dismissed the Restoration application filed by the Appellant/Petitioner without any proper reason and the said impugned order reasoned with legal infirmity.
It is represented on behalf of the Appellant that the Tribunal erred in assailing the reason that the Appellant had also miserably failed to substantiate even on the ‘just’ ground as available under Section 252(3) of the Companies Act, 2013, in order to revive the name of the company. In this connection, it is the stand of the Appellant/Petitioner as per Section 252 Sub Clause (3) of the Companies Act, 2013, Creditor or Workman prior to the expiry of 20 years from the date of publication of the striking of the company’s name can file an Application. In fact, According to the Ld. Counsel for the Appellant, the legislature u/s 252(3) of the Companies Act has provided that the Company by itself can still file in its name as a juristic person challenging the order of striking of its name from the Register of Companies.
The Ld. Counsel for the Appellant/Petitioner refers to paragraph 3 of the impugned order passed by the Tribunal in CA/1275/2019 dated 10.12.2020 wherein it was mentioned that the Appellant/Petitioner had placed before the Tribunal (i) Copy of Income Tax Return Acknowledgment for the Assessment years 2015-2016, 2016-2017 and 2017-2018; and (ii) Copy of the statements of Accounts for the period 01.04.2015 to 31.03.2019.
To aver the contention that the Appeal is to be allowed, the Ld. Counsel for the Appellant seeks in aid of the Counter affidavit filed by the Respondent/ROC wherein it was mentioned that it has no objection in restoring the name of the Company to the Register of Companies and also the first Respondent had proceeded to make a mention in the counter that the company may be directed to state that it was carrying on business or was in operation and also been directed to file all pending financial and annual returns in case restoration is granted. Also in the Counter Affidavit of the Respondent before the Tribunal, the Respondent had taken a plea that the Directors of the Company may be directed to give an undertaking stating that the company was neither involved in money laundering activities during the demonetization period nor any unlawful activities during the relevant period. The contention of the Ld. Counsel for the Appellant is that in the impugned order itself that the Tribunal at paragraph 3 had mentioned that the copy of the statement of accounts for the period 01.04.2015 to 31.03.2019 was placed before it by the Appellant/Petitioner along with the income tax return acknowledgment for the assessment years 2015-2016, 2016-2017 and 2017-2018 and this particular fact was not borne in mind at the time of passing of the order by the Tribunal in dismissing the CA/1275/2019 on 10.12.2020, which had resultantly serious miscarriage of justice.
On 04.02.2022 when the instant CA (AT) No. 43 of 2021 came up for hearing, on behalf of the Appellant the Ld. Counsel was present. But none appeared on behalf of the Respondent/ROC Coimbatore.
Considering the fact that the Appellant/Petitioner had filed the copy of Statement of accounts for the period of 01.04.2015-31.03.2019 along with copy of the income tax return acknowledgement for the assessment years 2015-2016, 2016-2017 and 2017-2018 before the tribunal.
This tribunal comes to a resultant conclusion that the ends of justice to be met and further it is also otherwise just to restore the name of the company to the Register of Companies of course i.e. to the payment of cost of Rs. 50,000/-payable by the Appellant/Petitioner to the Hon’ble Prime Minister’s Relief fund within four weeks from today and to produce the receipt thereof without fail before the ROC. On production of receipt by the Appellant/Petitioner before the Respondent/ROC who shall restore the name of the company of the Appellant to be entered into Register of companies and Appellant/Company is required to file all pending financial statements before the ROC within one month from the date of restoration of the company.
The Respondent/ROC is entitled to collect all fees required under the Companies Act/Company Regulations including the payment of late fee by the Appellant/Petitioner and further the directors of the Appellant Company are hereby directed by this Tribunal to furnish an undertaking stating that the company was neither involved in money laundering activities during the demonetization period nor any unlawful activities during the relevant period before the Respondent without fail.
With the above said observations, the Appeal is allowed by setting aside the impugned order dated 10.12.2020 in CA/1275/2019 passed by National Company Law Tribunal, Special Bench, Division Bench-II Chennai.