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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain: (Oral)
This application is filed by the Applicant/Respondent No. 1 invoking Rule 11 of the NCLAT Rules, 2016 (in short ‘Rules’) for condonation of delay in filing of the order dated 11.02.2020 passed by this Tribunal in CA (AT) No. 95 of 2019 ‘Ravinder Kumar Magoo Vs. AMA India Enterprises Pvt. Ltd. & Anr.’ with the Registrar of Companies (RoC)
In brief, Ravinder Kumar Magoo (since deceased) filed an appeal i.e. CA (AT) No. 95 of 2019 against the order dated 21.01.2019 passed by the Adjudicating Authority (National Company Law Tribunal, Chandigarh Bench) which was taken up alongwith CA (AT) No. 103 of 2019, filed by the Applicant Company title as M/s AMA India Enterprises Pvt. Ltd. Vs. Shri Ravinder Kumar Magoo and was disposed of on 11.02.2022 with the following observations: -
“In view of the aforegoing discussions and observations we find no merit to interference in the impugned order except the rate of interest as discussed in Para 15. Respondent Company will make payment of consideration to the appellant (Ravinder Kumar Magoo) alongwith interest within 30 days from the date of receipt of this order. No order as to cost”
In terms of the aforesaid order dated 11.02.2022, the Applicant was supposed to make the payment of consideration to Ravinder Kumar Magoo (since deceased) alongwith interest within 30 days but since Ravinder Kumar Magoo had already expired on 19.01.2020 and the Applicant was not aware of his legal heirs, therefore, the payment could not be paid.
The Applicant was also required to submit Form No. INC-28 provided in the Companies Act, 2013 (in short ‘Act’) and the Rules made thereunder with the Registrar of Companies (RoC) within a period of 30 days. Rule 161 of the NCLT, 2016 also provides for filing of the order with the RoC. The said Rule is reproduced as under:-
“161. Filing of Order of the Tribunal with the Registrar of
Companies.- The certified copy of the order passed by the Tribunal shall be filed by the company in form INC-28 alongwith fee of Rupees five hundred with the Registrar of Companies within the time specified in the Act or specified by the Tribunal. Where no time limit is prescribed by the Tribunal, such order shall be filed within thirty days from the date of receipt of certified copy of the order.”
The Applicant first filed Form No. INC-28 on 27.10.2022 but inadvertently the date of issue of certified copy was wrongly mentioned as 21.10.2022 because certified copy was not obtained by that time. The said Form No. INC-28 was not taken on record by the RoC and the Applicant was informed through email dated 16.11.2022. The relevant extract of the email is as under:-
“In continuation of email(s) sent earlier in respect of this SRN, this is to inform you that in term of the provisions underSub-Rule 4 of Rule 10 of the Companies (Registration offices and Fees) Rules, 2014, the above-cited Form INC-28 dated27/10/2022 filed by AMA INDIA ENTERPRISES PRIVATE LIMITED vide SRN F33811878 has not been resubmitted or FormGNL-4 has not been filed complete in all respects within due date. Hence, this eForm has been treated as Invalid and transaction cancelled NCLAT order was passed on 11.02.2020 and as per INC-28 an application to tribunal was made on11.02.2020 and the certified copy was issued on 21.10.2022 i.e. after two year and 8 months approx. Also the certifiedcopy of order is also not enclosed with the form along with the proof that the order was received on 21.10.2022. hencethe form cannot be taken on record.”
After the aforesaid communication received from the RoC, the Applicant applied for certified copy of the order dated 11.02.2020 on 08.02.2023. The certified copy was prepared and delivered on the same day. After obtaining certified copy, the Applicant submitted Form No. INC-28 again on 15.02.2023. The RoC did not accept Form No. INC-28 and the reason of rejection was uploaded on the MCA Portal which says that:
“NCLAT Order was passed on 11.02.2020 and the same is filed now after delay of approx. 3 years. Please explain and get the delay condoned.”
The Applicant has thus filed this application for seeking condonation of delay for the purpose of submitting Form No. INC-28 with the RoC.
Counsel for the Applicant has submitted that the Applicant was under a bonafide belief that Form No. INC-28 was to be submitted with RoC only after the payment is made to the legal representatives of Ravinder Kumar Magoo. The Applicant has also submitted that it is not going to gain anything in submitting Form No. INC-28 with RoC with the delay rather if the order dated 11.02.2020 is not accepted by the RoC and uploaded in its record then the Appellant would suffer a difficulty because then this order will not be given effect to. He has also submitted that the Rule 153 of NCLT Rules also provides for enlargement of time where any period is fixed by or under these Rules or granted by Tribunal for the doing of any act. Rule 153 is reproduced as under:-
“153.Enlargement of time.- Where any period is fixed by or under these rules, or granted by Tribunal for the doing of any act, or filing of any document or representation, the Tribunal may, in its discretion from time to time in the interest of justice and for reasons to be recorded, enlarge such period, even though the period fixed by or under these rules or granted by the Tribunal may have expired.”
In support of his arguments, he has relied upon the orders passed by the Hon’ble Punjab & Haryana High Court in the case of Sanghvi Movers Ltd. Vs. Ess Ess Technofabs Pvt. Ltd., CA No. 121 of 2018 in CA No. 24 of 2017 in RA-CP No. 1 of 2017 in CP No. 211 of 2014, Halwasiya Agro Industries Ltd. Vs. Eldeco Housing and Industries Ltd., CA No. 273 of 2017 in CP No. 228 of 2015 and the Order of Hon’ble Gujarat High Court in the case of Prem Conductors Pvt. Ltd. Vs. RoC, 2012 SCC OnLineGuj 1405. He has thus prayed that the delay which is not intentional may be condoned subject to payment of some costs.
On the other hand, Counsel appearing on behalf of Ravinder Kumar Magoo has submitted that he has no objection if the application for condonation of delay is allowed but his rights flowing from the order dated 11.02.2020 shall not be effected.
We have heard Counsel for the parties and examined the record with their able assistance.
The issue involved in this case is as to whether the delay of 1144 days in filing Form No. INC-28 can be condoned in the given facts and circumstances?
There is no dispute that as per Section 66(5) of the Act, the Company is rightly to deliver a certified copy of the order of the Tribunal to the RoC within 30 days of the receipt of the copy of the order, who shall register the same and issue a certificate to that effect. Similarly, as per Rule 161 of the NCLT Rules the certified copy of the order passed by the Tribunal is required to be filed by the Company in Form INC-28 alongwith fee of Rs. 500 with the ROC within the time specified in the Act or specified by the Tribunal. Where no time limit is prescribed by the Tribunal, such order shall be filed within thirty days from the date of receipt of certified copy of the order.
In the present case, when Form No. INC-28 was first filed on 27.10.2022 without obtaining certified copy, the said form was not in accordance with the mandatory requirements. However, the second Form was filed on 15.02.2023, after obtaining the certified copy on 08.02.2023 i.e. within the period of 30 days, as prescribed both in Section 66(5) of the Act and Rule 161 of the Rules. However, in this process delay has occurred, but as per the facts and circumstances of the case the Applicant was under bonafide belief that Form No. INC-28 was to be filed only after the payment is made to the LRs of Ravinder Kumar Magoo and there was some inadvertence also on their part.
We find it to be a fit case for condonation of delay and in this regard, rely upon the orders of Hon’ble Punjab and Haryana High Court and Gujarat High Court in the case of Sanghvi Movers Ltd. (Supra), Halwasiya Agro Industries Ltd. (Supra) and Prem Conductors Pvt. Ltd. (Supra).
As we have held that there is some lapse on the part of the Applicant, therefore, it deserves to be penalised and therefore, invoking the powers under Section 450 of the Act, the Company/Applicant is saddled with a cost of Rs. 2 Lakh.
With these observations, the delay of 1144 is hereby condoned subject to deposit of Rs. 2 Lakh with the RoC by the Applicant within a period of 30 days. The RoC is also directed to accept the Form No. INC-28, to be filed by the Applicant, within a period of 30 days from the date of passing of this order and give effect to the same.
It is, however, made clear that we have only decided the application for condonation of delay and the rights of the legal heirs of Ravinder Kumar Magoo in regard to the payment of the amount due from the Company which flows from the order dated 11.02.2020 are not addressed.