National Company Law Appellate Tribunal
Leka Consulting Services Pvt. Ltd vs The Registrar Of Companies Odisha on 8 February, 2024
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
COMPANY APPEAL (AT) No. 227 OF 2023
[Arising out of Order dated 08.08.2023 passed by the National
Company Law Tribunal, Cuttack Bench in C.A. (Companies Act)
No.15/CB/2023 arising out of CP No. 69/CB/2020]
In the matter of:
Leka Consulting Services Private Limited
Having Regd. Office at 324, Bima Vihar,
Sector - 6, CDA, Cuttack,
ODISHA - 753014. ...Appellant
Versus
Registrar of Companies, Odisha
Ministry of Corporate Affairs,
At Corporate Bhawan, 2nd and 3rd Floor,
Plot No. 9(P), Sector 1, CDA, CUTTACK
ODISHA - 753014. .....Respondent
For Appellant : Mr. Sashwat K Achary, Mr. Dhanananjay
Bhaskar Ray, Advocates
For Respondent: .....
COMPANY APPEAL (AT) NO. 227 OF 2023
1
J U D G E M E N T
JUSTICE M. VENUGOPAL, MEMBER (JUDICIAL) The Appellant / Petitioner has preferred the instant Comp. App. (AT)No. 227/2023 as an 'Aggrieved' person in respect of the impugned order dated 08.08.2023 in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 passed by the National Company Law Tribunal, Cuttack Bench.
2. Earlier, the National Company Law Tribunal, Cuttack Bench in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 among other things at paragraph No. 4 had observed the following:
"Now this application has been filed. The High Court granted liberty to the applicant to file amendment application. The scope of amendment is to rectify the mistake if it is apparent on record. The applicant has not point out any apparent mistake appeared in the dismissal order of this Tribunal dated 21.08.2020 instead he prayed to receive COMPANY APPEAL (AT) NO. 227 OF 2023 2 additional documents on record and grant the relief prayed in dismissal C.P. No. 69/CTB/2020. The prayer of the applicant is beyond the scope of amendment. The order passed on merit dated 21.08.2020 not set aside by Higher forum, the order is still in force. The C.P. No. 69 of 2022 is not pending hence the question of receiving additional documents in disposed petition/proceeding does not arise. On the applicant side not brought to notice of this Tribunal any apparent mistake appeared in the dismissal order dated 21.08.2020. The High Court granted permission to the applicant to file amendment petition. The applicant not filed an application for an amendment instead he filed the application to receive the additional documents, this prayer is beyond the scope of the permission granted by High Court. The applicant cannot on its own expand the permission granted by High Court and labelled that this application is filed in pursuance of COMPANY APPEAL (AT) NO. 227 OF 2023 3 High Court order dated 23.12.2021. In the High Court order there is no whisper about production of additional documents and the revival of the company. In strict sense this application is not in consonance with the order of High Court. The citations submitted by the applicant counsel regarding revival of company are not relevant to decide the amendment application. In the circumstances, the application is devoid of merits both on law and facts and liable to be dismissed."
and resultantly dismissed the Application.
Appellant's Submissions
3. The Learned Counsel for the Appellant contends that the impugned order dated 08.08.2023 in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 passed by the National Company Law Tribunal, Cuttack Bench is an 'erroneous one' and that the 'Tribunal' had misinterpreted the meaning and 'purport of Liberty' granted to the Appellant, by the Hon'ble High Court of Orissa.
COMPANY APPEAL (AT) NO. 227 OF 2023 4
4. According to the Learned Counsel for the Appellant, the Appellant/Company was an active Company ever since its incorporation and maintaining all the Requisite 'Books of Accounts' as per the Companies Act, 2013. Furthermore, a 'Notice' of 'Striking off and Dissolution' in Form No. STK-7 was issued dated 23.10.2019 as per Section 248(5) of the Companies Act, 2013 by the 'Registrar of Companies', pertaining to various Companies, among which the Appellant's name was also there.
5. It is represented on behalf of the Appellant that prior to any notice issued under section 248(5) of the Companies Act, 2013 was served on the Appellant/Company, a notification was published in the 'Gazette of India' as per Section 248(1) of the Companies Act, 2013, for removal of the Appellant/Company from the 'Registrar of Companies' for non-filing of Annual Return for the Financial Years 2016-2017 and 2017-2018.
6. It is the version of the Appellant that the Tribunal had disregarded the clear liberty granted to the Appellant by the Hon'ble High Court, by holding that since the Company petition was not pending, there was no question of receiving additional documents in a disposed of petition/proceeding. COMPANY APPEAL (AT) NO. 227 OF 2023 5
7. The Learned Counsel for the Appellant points out that the 'Tribunal' had failed to appreciate that the 'Sale Deed' produced as Additional Documents/Evidence, as per liberty granted by the Hon'ble High Court, amply shows that the Appellant/Company was in operation and was a 'Going Concern' having considerable 'Assets' and substratum at the time of 'striking off'.
8. The Learned Counsel for the Appellant brings it to the notice of this Tribunal, that Appellant/Company was a 'Going Concern' and doing 'Business Operations' during the period of 'Default' even going by the audited Annual Accounts viz. the Profit & Loss Accounts of the Company, in respect of the Financial Years 2016- 2017 and 2017-2018, the 'Bank Accounts' statements of the Appellant / Company and the 'Income Tax Returns' of the Appellant Company.
9. The Learned Counsel for the Appellant points out that the Appellant, was not served with any Notice/Order Striking Off and 'no opportunity of hearing' was provided by the Respondent, by adducing evidence, to demonstrate that it was in operation.
10. The Learned Counsel for the Appellant, proceeds to point out that the 'Tribunal' had passed its final order in CP No. COMPANY APPEAL (AT) NO. 227 OF 2023 6 69/CB/2020 untenably dismissing the Company Petition by wrongly holding that the perusal of the documents filed 'prima facie' suggested that the Appellant/Company was not carrying out its business during the relevant time when its name was struck off, it was wrongly held that the Company was not a 'Going Concern' and was not doing any Banking / Business Transactions when its name was 'struck off from the 'Register of Companies' and that the 'Company' was not having any business operations.
11. The Learned Counsel for the Appellant, submits that there was a breach of the 'Principles' of Natural Justice', in as much as the 'objections', of the Respondent / 'Registrar of Companies', were not furnished to the Appellant and 'No Opportunity', was afforded to the Company to explain and tender proof that it was in 'operation', at the relevant point of time.
12. According to the Appellant, it filed W.P. (C) 35437 of 2020 before the Hon'ble High Court of Orissa, and on 23.12.2021 there was a categorical direction that the Appellant might approach the Ld. NCLT, Cuttack to contend that the impugned order be amended on the Tribunal not having allowed the Appellant to adduce evidence of the company being in operation, in context of COMPANY APPEAL (AT) NO. 227 OF 2023 7 the report having said that the 'Tribunal', is satisfied, it may amend the impugned order. It was observed in conclusion that the Appellant herein has not preferred appeal and, therefore, is still entitled to approach the Tribunal.
13. According to the Appellant, the Hon'ble High Court of Orissa had disposed of W.P. (C) No. 26971 of 2020, on 14.10.2022, in terms of the order dated 23.12.2021 passed by the Hon'ble High Court in W.P. (C) No. 35437 of 2020.
14. The Learned Counsel for the Appellant, points out that the Appellant had approached the National Company Law Tribunal, Cuttack by preferring Company Application No. 15/CB/2023 in CP No. 69/CB/2020, based on the liberty granted by the Hon'ble High Court, praying for reconsideration of the revival of the Appellant / Company, (pursuant to the Liberty given by the Hon'ble High Court) while taking into account the 'Additional Documents' furnished along with the Interlocutory Application, being nine Sale Deeds from 2007 to 2013, together with the encumbrance certificates, to exhibit that the Appellant/Company was in operation at the relevant point of time. COMPANY APPEAL (AT) NO. 227 OF 2023 8
15. The Learned Counsel for the Appellant contends that by 'no stretch of imagination', can the Hon'ble High Court's order be construed as granting liberty to the Appellant/Applicant to file an Amendment Application. As such, there was no requirement for the Appellant, to point out any other 'Apparent Mistake' in the dismissal order of the Tribunal dated 21.08.2020.
16. The Learned Counsel for the Appellant points out that the Tribunal, on its own, expanding the permission given by the Hon'ble High Court and order is an erroneous one, which is liable to be set aside. Also, it is the stand of Appellant that, the 'Tribunal' had failed to appreciate that the object of Section 252(3) of the Companies Act, 2013 is to give a chance to the 'Company', its 'Members' and 'Creditors' to revive the Company, which was 'struck off' by the Respondent / ROC, within a period of 20 years and to provide them an opportunity to carry on the business.
17. The Learned Counsel for the Appellant takes a stand that the Respondent and the 'Tribunal', had failed to consider the ingredients of Section 248(6) of the Companies Act, 2013 which mentions that the Respondent shall satisfy itself that sufficient provision was made for the realisation of the sums due to the COMPANY APPEAL (AT) NO. 227 OF 2023 9 Company and for payment and discharge its obligations and liabilities within a reasonable time and if necessary, undertakings are to be obtained from the Managing Director, Director or other persons, incharge of the Management of the Company.
18. The Learned Counsel for the Appellant, points out that the Appellant had filed 'Returns' for the earlier years and it can be seen that the Appellant has 'Assets and Liabilities', and as such, the Respondent had failed to comply with the ingredients of Section 248(6) of the Companies Act, 2013.
19. The other contention advanced on behalf of the Appellant, is that the Appellant had purchased 'Lands' by investing 'substantial money', to be utilised for further 'Business Activities' and more importantly, the 'Loans' taken for purchasing these lands is required to be paid off, for which the revival of the Appellant / Company is necessary.
20. The Learned Counsel for the Appellant points out that the exclusion period provided for in the suo moto order of the Hon'ble Supreme Court, for the purpose of Section 14 of the Limitation Act, 1963, the following period in any case, also deserve to be excluded while computing two years viz.:-
COMPANY APPEAL (AT) NO. 227 OF 2023 10
(i) Pendency before Hon'ble HC -14.12.2020 to 23.12.2021
- 374 days; and
(ii) Pendency before NCLT in CP 48 -24.06.2022 to 20.09.2022 88 days and in all 462 days.
21. The Learned Counsel for the Appellant points out that till date the Respondent / ROC report was not provided to the Appellant.
22. According to the Appellant, the 'Tribunal' had not non-suited the Appellant based on limitation. Also, that, the purport of liberty granted to the Appellant was to seek revival of the Company on the basis of additional evidence to be adduced by it and that was the prayer made before the Tribunal.
23. The Learned Counsel for the Appellant brings it to the notice of this Tribunal that the CP 69 of 2020 was heard by the Tribunal only through virtual mode because of COVID 19, which was just newly started. Because of the COVID 19 pandemic intervention, the Hon'ble Supreme Court had excluded 'Limitation' for all purposes from 15.03.2020 to 28.02.2022. Apart from that, the main CP 69/CB/2020 was preferred by one of the Directors of the Company for revival of the Company, before the Tribunal.
COMPANY APPEAL (AT) NO. 227 OF 2023 11
24. The Learned Counsel for the Appellant points out that the 'Company' was struck off on 02.11.2019 and CP 69/CB/2020 was filed on 26.02.2020, as per Section 252(3) of the Companies Act, 2013 when the statute provides for 20 years Limitation period.
25. The Learned Counsel for the Appellant brings to the notice of this Tribunal that the Tribunal took a hyper technical approach in dealing with the application of the Appellant and ignored the meritorious grounds projected by it.
26. The Learned Counsel for the Appellant points out that as per the Hon'ble Supreme Court of India, the Limitation was to be excluded from 15.03.2020 to 28.02.2022, as per decision of Hon'ble Supreme Court in 2022 3 SCC at pg 117 (vide para 5.1).
27. The Learned Counsel for the Appellant, while praying for setting aside the impugned order passed by the Tribunal in C.A. (Companies Act) No.15/CB/2023 in CP No. 69/CB/2020 and to allow the instant Appeal, in the interest of justice. The Appellant's Side Decision
28. The Learned Counsel for the Appellant refers to the decision in M.A. Panjwani v. Registrar of Companies, 2013 SCC online COMPANY APPEAL (AT) NO. 227 OF 2023 12 Del 4863 wherein at paragraph 12 it was held that the Company Court has the power to order restoration of the Company's name to the Register of Companies on the application made by the Company itself or its Member or Creditor. It has also be observed therein that such an application can be made at any time before the expiry of 20 years from the publication of the notice for striking off the name published in the official gazette. Also it was observed that there are only two circumstances in which the Company Court can exercise the power; the first is when it is satisfied that the Company was, at the time of the striking off of its name from the Register, carrying on business or was in operation; the second circumstance is when it appears to the Company Court that it is "otherwise just" that the name of the company be restored to the Register.
29. The Learned Counsel for the Appellant relies on the decision in M.A. Panjwani's case, wherein at paragraph 15 it was held that the presence of the words "or otherwise" denotes that even if the Company was not carrying on any 'Business' or was not in operation at the time of 'striking off', it is still open to the 'Company COMPANY APPEAL (AT) NO. 227 OF 2023 13 Court' to order restoration if it appears to be Court to be "otherwise just".
30. The Learned Counsel for the Appellant adverts to the decision of Hon'ble Supreme Court in the matter of Posh Exports Pvt. Ltd. v. Registrar of Companies 2014 SCC Online Del 7439 wherein the Company was directed to be restored (subject to the filing of all statutory documents and also the other documents with the requisite fee as well as additional fee as applicable on the date of actual filing of the documents) on the basis of an affidavit filed by the said Company that the non-filing of the Annual Return and the Balance Sheets was because the part time Accountant of the said Company, who was dealing with the aforesaid work, left the employment of the Petitioner Company.
31. The Learned Counsel for the Appellant seeks in aid of the decision in Suneil Bhende V. Registrar of Companies in 2018 SCC OnLine NCLT 22132 wherein it was observed that the relevant documents, which are to be filed, are ready with the Company and the Company is willing to file the same if so permitted. That the Petitioner had enclosed the Audited Report and Financial Statement for the relevant years with the petition to COMPANY APPEAL (AT) NO. 227 OF 2023 14 show that the Company was in continuous operation. It was held that it would be just and proper to order restoration of the name of the Company, in the 'Register of Companies' maintained by the 'Registrar of Companies'.
32. The Learned Counsel for the Appellant cites the decision in Jagjit Singh Suri v. Registrar of Companies and Anr. Reported in 2023 SCC OnLine NCLAT 118 wherein at paragraph 11 it is observed as under:-
"In view of the fact that the Company is having a large plot of land approximate area of 27,822 square yards, from the U.P.S.I.D.C., being Plot No. 2/1, in Sahibabad Industrial Area, Sahibabad, Ghaziabad, U.P. vide lease deed dated 15th July, 1972 shows that the Company is having substantial movable as well as immovable assets. Therefore, it cannot be said that the Company is not carrying on any business or operations."
33. The Learned Counsel for the Appellant adverts to the decision in Neotech Engineers Private Limited v. Registrar of Companies, Uttar Pradesh reported in 2021 SCC OnLine NCLT 399 wherein it is observed as under:-
COMPANY APPEAL (AT) NO. 227 OF 2023 15 "The Appellant has been able to satisfy this bench that it has certain assets which necessitate and justify the restoration of its name in the Register of Companies. A step as stringent as what has been taken at least required an opportunity to the appellant to take remedial measures. Merely to disallow restoration on grounds of its failure to file annual returns would neither be just nor equitable. As per several decisions of various courts it should only be an exceptional circumstance that court should reuse restoration where the company has been struck off for its failure to file annual return as that would be excessive or inappropriate penalty for that oversight."
34. The Learned Counsel for the Appellant seeks in aid of the decision in Manmohan Singh Anand v. Registrar of Companies NCT of Delhi and Haryana & Anr. Reported in 2023 SCC OnLine NCLAT 86 wherein at paragraph 11 it is observed as under:-
"After hearing the parties, going through the pleadings made on behalf of the parties and in view of the fact that the Appellant Company was in some disputes and death of the Managing Director, the company could not file its Annual Returns. Further, the COMPANY APPEAL (AT) NO. 227 OF 2023 16 Appellant Company has regularly paid payment of Taxes and having valid Sale Deeds dated 20.09.1972, 20.12.1972 & 21.03.1975 and the Municipal Corporation of Faridabad has issued an Encumbrance Certificate dated 04.09.2019, it shows that the land in which the factory of the Company is located, is currently the name of the Company and also having huge assets of the Company. Hence, we are of the view that the order passed by the National Company Law Tribunal (New Delhi Bench, Court-II) as well as Registrar of Companies, NCT of Delhi & Haryana is not sustainable in law."
Evaluation
35. Before the National Company Law Tribunal, Cuttack Bench, the Petitioner / Appellant had filed CA No. 15/CB/2023 in CP No. 69/CB/2020 (u/s 252(3) & (420) of the Companies Act read with Rule 11 of NCLT Rules, 2016) wherein he had sought the relief of Reconsidering the revival of the Applicant Company pursuant to the Order passed by the Hon'ble High Court of Orissa dated 23.12.2021 under Annexure - 2 while taking in consideration the additional documents submitted along with the present application.
COMPANY APPEAL (AT) NO. 227 OF 2023 17
36. According to the Petitioner/Appellant, the Respondent / ROC, Orissa had stated that the Petitioner/Appellant/Company had not generated 'any revenue' and the same, was not a 'Going Concern', which is repudiated by the Petitioner/Appellant Company, stating that the immovable property (vide Annexure 4- copies of Nine Sale Deeds from the year 2007-2013 along with encumbrance certificate) was purchased from the money raised through loans from the Promoters. Also, that the immovable Assets of the Company according to the Appellant needs to be utilised, to pay back the Creditors of the Company, therefore, a plea is taken on behalf of the Petitioner/Appellant/Company that it is not just and equitable to strike off the name of the Petitioner/Appellant Company.
37. It is the plea of the Petitioner/Appellant in CA No. 15/CB/2023 in main CP No. 69/CB/2020 that the Respondent / ROC initiated proceedings under Section 248 (5) of the Companies Act, 2013 but failed to consider Section 248 (6) of the Companies Act, 2013 which mentions that the Respondent shall satisfy himself that sufficient provision was made for realisation of all the amounts due to the company and for payment or discharge of its COMPANY APPEAL (AT) NO. 227 OF 2023 18 liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company. In the present case, the respondent has struck off the name of the Applicant's company non-filing of the statutory annual returns i.e. FY 2016-17 and 2017-18.
38. According to the Appellant, the Petitioner/Appellant/Company had filed Returns for earlier years and there are Assets and Liabilities for the Petitioner/Appellant Company and the Respondent had failed to fulfill the requirements as per Section 248(6) of the Act. Therefore, it is the contention of the Petitioner/Appellant had failed to fulfill the ingredients of Section 248(6) of the Act and as such, the action taken by the Respondent is an illegal one.
39. It is the version of the Appellant, that during the course of hearing of main Company Petition the Respondent had not served its 'Reply' upon the Appellant, and as such the Appellant, was unaware of the stand taken by the Respondent / ROC, Orissa. In any event, the statute (Companies Act, 2013) provides that an order of this 'Tribunal', can be rectified as per Section 420(2) of COMPANY APPEAL (AT) NO. 227 OF 2023 19 the Companies Act, 2013 of course within a period of two years. In the instant case, the application was filed pursuant to the order of the High Court dated 23.12.2021.
40. The Learned Counsel for the Appellant points out the Appellant/Company had given 'Loans' to another 'Corporate' which becomes impossible to recover unless and until the Appellant/Petitioner Company is revived.
41. The Learned Counsel for the Appellant prays for the consideration of CA No. 15/CB/2023 in main CP No. 69/CB/2020 in the light of the order passed by the Hon'ble Orissa High Court dated 23.12.2021.
42. It must be borne in mind that the Petitioner/Appellant had filed a fresh petition not pointing out the dismissal order passed by the NCLT Cuttack Bench (under Section 252(3) of the Companies Act, 2013 in CP No. 48/CB/2022). In fact, the said petition came to be dismissed on 20.09.2022, as 'withdrawn', after it was pointed out on behalf of the Respondent.
43. It is relevantly pointed out that the 'Tribunal' in the final order in main CP No. 69/CB/2020 dismissed the Company Petition holding that a perusal of the documents indicated that the COMPANY APPEAL (AT) NO. 227 OF 2023 20 Appellant / Company was not carrying on its Business during the relevant time when its name was 'struck off'. Moreover, it was held that the Appellant / Company had not generated any revenue from its operations since the 'Financial Year' had ended on 31.03.2017. Besides that, it was observed that Income Tax Returns showed that there were losses and there was no indication of any business being carried out during the relevant time etc.
44. The Tribunal in its order on 21.08.2020 in CP No. 69/CB/2020 had opined that Respondent / ROC, Odisha had issued a Show Cause Notice to the Appellant / Company requiring the Company to state whether the Appellant / Company was carrying on any business or was in operation and the Respondent through its report on 16.03.2020 had mentioned that the Appellant / Company be put to 'strict proof' whether it was in operation at the time of 'striking off'.
45. In CP(Appeal) No. 69/CTB/2020 on the file of NCLT, Cuttack, the Appellant/Petitioner had prayed for a direction being issued to the Respondent to revoke the impugned order.
46. Before the Tribunal the Respondent/ROC had mentioned the following in its Report which proceeds as under: -
COMPANY APPEAL (AT) NO. 227 OF 2023 21 "The Company was not filing its Statutory Returns i.e. Balance Sheets and Annual Returns since the Financial Year ended 31.03.2017, hence, the Registrar having reasonable cause to believe that the above named Company is not carrying on any business or in operation for a period immediately preceding last Financial Years and has not made any application within such period for obtaining the status of a Dormant Company under Section 455 of the Companies Act, 2013 and issued Notice in Form No. STK-1 under Section 248(1)(c) of the Companies Act, 2013 to the Company enquiring whether the said Company was carrying on any business or was in operation, but no reply to the said Show Cause Notice was received by this Office. Subsequently this office published in the Official Gazette and Newspaper for the information of the general public regarding Strike Off the name of the said company if Form No. STK-5/5A. Finally, after the expiry of the time mentioned in the above notice the Registrar Struck Off the name of aforesaid Company from his Register and published the same in Form No. STK-7 in the Official Gazette dated 02.11.2019 and on the publication of such Notice in the Official COMPANY APPEAL (AT) NO. 227 OF 2023 22 Gazette, the Company stood dissolved on and from 24.10.2019.
The Hon'ble NCLT, Cuttack Bench may consider the application/petition preferred under Section 252 of the Companies Act, 2013 on its own merits as deemed fit and proper."
47. It is not out of place for this Tribunal to make an apt reference in regard to the Hon'ble High Court's of Orissa order dated 23.12.2021 in W.P. (C) No. 35437 of 2020 between Leka Consulting Services Private Limited v. NCLT, Cuttack & Anr. Wherein at paragraph 4 it is observed as under: -
"4. Petitioner might approach the Tribunal to contend that impugned order be amended on the Tribunal not having allowed his client to adduce evidence of the company being in operation, in context of the report having said that his client may be put to strict proof. The amendment can be made within two years from date of order, so there is still time. Petitioner has not preferred appeal and, therefore, still entitled to approach the Tribunal."
COMPANY APPEAL (AT) NO. 227 OF 2023 23
48. Section 420(1&2) of the Companies Act, 2013 under the caption orders of Tribunal reads as under: -
"(1) The Tribunal may, after giving the parties to any proceeding before it, a reasonable opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Tribunal may, at any time within two years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties:
Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act."
49. It is pointed out by this 'Tribunal' that for the purpose of rectification of any order under Rule 154 of the NCLT Rules, 2016, it should relate to the case. Rule 154 of NCLT Rules, 2016 enjoins that an application under such Rule may be made in Form No. 'NCLT 9' within two years from the date of Final Order', for rectification of Final Order not being an Interlocutory Order. As a matter of fact, rectification order can be passed in respect of COMPANY APPEAL (AT) NO. 227 OF 2023 24 mistakes which are patent on record and not mistakes which may be discovered by process of elucidation or any debate, in the considered opinion of this 'Tribunal'. But such power cannot be exercised to review an order or judgement in the absence of clerical or arithmetical matter. Rule 155 of the NCLT Rules, 2016 provides for 'General Power of Remand'.
50. Indeed, Rule 20 of NCLT Rules, 2016, lays down the procedure 'for institution of proceedings, petition, Appeals' before the Tribunal. Rule 44 of the NCLT Rules, 2016 pertains to hearing of petition or applications. Rule 45 of the Rules concerns with the 'Rights of a Party' to appear before the 'Tribunal'.
51. It cannot be forgotten that Section 420 of the Companies Act, 2013 is subject to limitation. It is worth to refer to a decision of Hon'ble Supreme Court in Lilly Thomas v. Union of India reported in AIR 2000 SC 1650, 1668 wherein it is observed that power to rectify or amend the order is exercised to remove the mistake, without disturbing its finality.
52. In the judgement of this Tribunal dated 19.07.2017, in Company Appeal (AT) No.206/2017 and Company Appeal (AT) COMPANY APPEAL (AT) NO. 227 OF 2023 25 No.221/2017, in APC Credit Rating Pvt Ltd V. ROC, NCT of Delhi and Haryana wherein at paragraph 15 it is observed as under:-
"15. As per sub-section (3) of Section 421, every appeal is required to be filed under sub-Section (1) within 45 days from the date on which the copy of the order of the Tribunal is made
-available to the person aggrieved; As the Appellate Tribunal is empowered to entertain an appeal after expiry of the said period of 45 days from the date of receipt of the order but such power can be exercised only within a further period not exceeding 45 days that is total 90 days. If order(s) dated 26th September, 2.016 were communicated the appellant(s) in October, 2016 [actual date not supplied by the appellant(s)], even then, we find that now more than 9 /2 months have passed and thereby the Appellate Tribunal has no power to condone the delay. For the said results, we express our inability to interfere with the impugned orders both dated 26th September, 2016 and reject such prayer.''
53. At this stage, this 'Tribunal', worth recalls and recollects the decision in Batuk K Vyas V Surat Borough Municipality reported in AIR 1953 Bombay at Page 133, wherein the Hon'ble High Court COMPANY APPEAL (AT) NO. 227 OF 2023 26 of Bombay had observed that no 'error' could be said to be 'apparent' on the face of record, if it was not self evident and if it required an examination or argument to establish it.
54. Further, this 'Tribunal', aptly refers to the decision of Hon'ble Supreme Court in Hari Vishnu Kamath V. Syed Ahmad Ishaque & Ors reported in AIR 1955 SC 233, it is observed that it is essential that the 'mistake' should be something more than a mere error. It must be one which must be manifest on the face of record.
55. In the instant case on hand, the Petitioner/Appellant, takes a stand that the Petitioner/Appellant/Company had given loans to another corporate, which becomes impossible to recover unless and until the present petitioner/Appellant/Company is revived.
56. The Tribunal, in the impugned order, had observed that CA 15/CB/2023 in CP/69/CTB/2020 was filed on 16.12.2022 after the lapse of two years' period, from the date of the order passed by the NCLT Cuttack Bench on 21.08.2020 in main Company Petition.
57. It is to be remembered that the Petitioner/Appellant had filed CA 15/CB/2023 before the Tribunal seeking a relief to receive 'Additional Documents''and to consider the 'Revival of Company' COMPANY APPEAL (AT) NO. 227 OF 2023 27 An Appellant cannot claim as a matter of right to produce the document or examine any witness before the 'Appellate Authority' undoubtedly, the 'Discretion' to receive any document/evidence rests with the Appellate Authority/Court.
58. To be noted that the power of a Tribunal to permit 'Additional' evidence to produce / documents is in the jurisdiction of the Appellate Authority. A document not relevant for deciding the question of controversy in a given proceeding / suit is not to be accepted as additional evidence. Also, if there is any gap or lacuna in evidence to be filled up, the discretionary power conferred upon the Appellate Authority does not authorise the 'Appellate Authority' to fill the gap in question.
59. As far as the present case is concerned, the Appellant, had not preferred an application for amendment but he preferred the CA 15/CB/2023 in CP/69/CTB/2020 seeking to receive additional documents by the Tribunal and to consider the revival of Company. In this connection, the CA 15/CB/2023 in CP/69/CTB/2020 filed by the Petitioner/Appellant before the Tribunal latently and patently indicates that the Hon'ble High Court had given permission to the Appellant/Petitioner to prefer COMPANY APPEAL (AT) NO. 227 OF 2023 28 an amendment application but the Appellant / Petitioner had prayed for the receipt of additional documents by the Tribunal, to revive the Company which relief is outside the purview of the High Court's Order.
60. On a careful consideration of Appellant's contentions this 'Tribunal' on going through the impugned order dated 08.08.2023 in CA 15/CB/2023 in CP/69/CTB/2020 passed by the 'Tribunal' is of the considered view that additional evidence is not to be accepted by this Tribunal just because the documents / evidence will tilt the decision in Petitioner/Appellant's favour.
61. In fact, the 'Tribunal / Court of Law' is to see whether the Petitioner/Appellant lacked due diligence to be seen, and he cannot be allowed to fill up the 'lacuna' at the belated stage. Moreover, the production of additional evidence is not to be permitted where a person does not satisfy the Tribunal / Court that such evidence was not within the knowledge or could not be produced with due diligence.
62. As far as the present case is concerned, the Hon'ble High Court of Orissa through its order dated 23.12.2020 in W.P. (C) 35437/2020 had granted liberty to the Appellant to prefer an COMPANY APPEAL (AT) NO. 227 OF 2023 29 Amendment Application obviously, under Section 420 of the Companies Act, 2013 in view of the fact that two years' period had not lapsed, on the date of the Hon'ble High Court's order.
63. In the instant case on hand the CA 15/CB/2023 in CP/69/CTB/2020 was filed before the Tribunal on 16.12.2022, after the lapse of two years' period from the date of order of dismissal dated 21.08.2021 in CP/69/CTB/2020.
64. Even though in the present case, the Appellant has come out with a reason that the Petitioner/Appellant had engaged a Part Time Employee to file the Annual Return before the 'Registrar of Companies' and that because of the reason unknown to the Appellant, the said employee left and therefore, the Return could not be filed on time for the financial years 2016-2017 and 2017- 18 and by the time it came to the knowledge of the Appellant/Petitioner Company, his name was already struck off from the register maintained by the 'Registrar of Companies', the Tribunal, in CP(Appeal) No.69/CTB/2020 on 21.08.2020, at para No.11 had clearly observed that 'before striking off the name of the company from its register, ROC, had issued a show cause notice COMPANY APPEAL (AT) NO. 227 OF 2023 30 to the Company enquiring whether the said Company was carrying any business or was in operation'.
65. It is not out of place for this Tribunal to make a pertinent mention that the Respondent/ROC through its letter dated 16.03.2020 had categorically made a mention that the 'Petitioner' may be put to strict proof of the contentions made therein that at the time of its striking off the company was in operation'.
66. Continuing further the Tribunal in CP(Appeal)No.69/CTB/2020 through its order dated 21.08.2020 had at para 11 proceeded to observe that 'details/documents furnished alongwith the application do not suggest that the company was in operation and doing any business during the relevant time. Also available details do not suggest that the Company has anybody in its employment'.
67. In view of the clear cut and candid observations made by the Tribunal in CP(Appeal)No.69/CTB/2020 dated 21.08.2020 as mentioned SUPRA the contra pleas of the Appellant that it engaged part time employee to file the Annual Return before ROC and the said employee had left the Company because of unknown reason to the Appellant and as such, the statutory return could not be COMPANY APPEAL (AT) NO. 227 OF 2023 31 filed on time for Financial years 2016-17-18 etc. are 'unworthy of acceptance' as held by this 'Tribunal'.
68. Be that as it may, on a careful consideration of the Appellant's contentions, this 'Tribunal', on going through the impugned order dated 08.08.2023 in CA 15/CB/2023 in CP/69/CTB/2020 is of the considered view that the Appellant had not filed CA 15/CB/2023 in CP/69/CTB/2020 within the two years period as envisaged under Section 420 (2) of the Companies Act, 2013 and in fact had filed the CA 15/CB/2023 in CP/69/CTB/2020 before the 'Tribunal' 16.12.2022, after the lapse of two years' period on 16.12.2022. Therefore, the 'Tribunal' had rightly opined that the CA 15/CB/2023 was not to be considered in regard to the receiving of additional documents / additional evidence. Looking at from any angle, the impugned order dated 08.08.2023 in CA 15/CB/2023 in CP/69/CTB/2020, passed by the NCLT, Cuttack Bench is free from any legal flaws. Resultantly, the Appeal sans merits.
COMPANY APPEAL (AT) NO. 227 OF 2023 32 Conclusion In fine, the Company Appeal (AT) No. 227 of 2023 is dismissed but without costs. The connected pending IA No. 5615/2023 for stay is closed. Connected pending IAs', if any, are closed.
(Justice M. Venugopal) Member (Judicial) (Dr. Alok Srivastava) Member (Technical) Date: 08-02-2024 ss/bm COMPANY APPEAL (AT) NO. 227 OF 2023 33