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Registrar Of Companies v. Goouksheer Farm Fresh Pvt. Ltd. And Another
Factual and Procedural Background
The Registrar of Companies (ROC), West Bengal struck off the name of M/s Goouksheer Farm Fresh Pvt. Ltd. after complying with Section 248 of the Companies Act, 2013 and the relevant rules. A Financial Creditor (M/s P.M. Cold Storage Pvt. Ltd.) initiated CIRP against the Company under Section 7 of the I&B Code and the application was admitted on 13.12.2019 in CP (IB) No. 1582/KB/2019, with Mr. Sanjeev Jhunjhunwala appointed as Interim Resolution Professional (IRP). Pursuant to a direction of the NCLT (Kolkata Bench) dated 13.12.2019, the IRP filed Company Petition No. 183/KB/2020 under Section 252(3) of the Companies Act, 2013 for restoration of the Company's name and for permission to file pending statutory returns without payment of penal fees.
The NCLT, by order dated 22.01.2020, restored the Company under Section 252(3) and directed the ROC to restore the name in the register and to not levy any fee/penalty because the Company was in CIRP. The ROC (Appellant) challenged the NCLT order before the Appellate Tribunal by filing Company Appeal (AT) No. 127 of 2020, contending inter alia the lack of statutory power to waive filing fees and penalties and other legal infirmities in the NCLT's directions.
Legal Issues Presented
- Whether the National Company Law Tribunal had jurisdiction to direct the Registrar of Companies not to levy filing fees or penalties (i.e., to waive fees) when restoring the company's name in the register.
- Whether an Interim Resolution Professional (IRP) has locus standi to file an application under Section 252(3) for restoration of a struck-off company when CIRP has been initiated against that company.
- Whether restoration of the company's name was necessary or maintainable for the purpose of completion of Corporate Insolvency Resolution Process.
- Whether the Appellate Tribunal should admit the appeal as within the period of limitation, having regard to the facts and extensions arising from the COVID-19 pandemic and related judicial/administrative directions.
- Interpretation of the statutory concept of "just" for the purposes of restoring a struck-off company's name under Section 252(3).
Arguments of the Parties
Appellant's Arguments (Registrar of Companies)
- Section 403(1) of the Companies Act, 2013 requires that documents be filed within prescribed time and on payment of prescribed fee; the first proviso to Section 403(1) contemplates payment of an additional fee for late filing (not less than Rs.100/- per day) but does not provide for waiver.
- Rule 12 of the Companies (Registration Offices & Fees) Rules, 2014 mandates that documents be submitted/registered on payment of the fee or additional fee as applicable (per the Table annexed to the Rules); there is no statutory power in the ROC to accept filings without payment.
- Rule 87(a)(4)(d) of the NCLT Rules, 2016 contemplates that where the Tribunal restores a company's name it may direct filing of pending financial statements and annual returns within such time as directed by the Tribunal; it does not empower waiver of statutory fees.
- The filing system of the ROC is fully online and the e-form processing requires payment of filing fee/additional fee pursuant to Section 403 read with Rule 12; acceptance is conditioned on payment at the time of uploading.
- The Company had not filed Balance Sheet beyond 31.03.2015 and Annual Returns beyond 31.03.2016, evidencing long non-compliance.
- The IRP (second respondent) lacked locus standi to file a restoration application under Section 252(3); restoration is not required for recovery of dues or for carrying out CIRP or winding-up as per Sections 248(8) and 250.
- The Tribunal had no jurisdiction to direct waiver of fees/penalties; no enabling provision exists under the Companies Act, 2013 for such waiver.
- Limitation: the Appellant contended the appeal was filed within the limitation period; gave a timeline and relied on COVID-related extensions and Supreme Court / NCLAT administrative directions extending limitation.
Second Respondent's Pleas (Interim Resolution Professional)
- Section 403 should be considered at the time of filing documents; the Tribunal's power under its rules should be read to allow relief in appropriate circumstances.
- Rule 14 of the NCLT Rules, 2016 empowers the Tribunal to exempt parties from compliance with requirements of those Rules on sufficient cause being shown.
- Rule 11 of the NCLT Rules, 2016 gives power to the Tribunal to make such orders as may be necessary to meet the ends of justice.
- The Appeal filed by the ROC was not maintainable (contention that restoration was required for effective completion of CIRP and that ROC had a duty to comply with Tribunal direction to restore the company).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M.A. Panjwani v. Registrar of Companies and Ors. ((2015) 124 CLA 109 (Delhi)) | Cited for the proposition that one circumstance for restoration under Section 252 is when "it appears to the Tribunal that it is otherwise just" that the name be restored. | The Tribunal relied on M.A. Panjwani to articulate the second ground for restoration — that restoration can be ordered when it is "otherwise just" — and treated that as a recognized ground for granting restoration. |
| Helen C. Rebella v. Maharashtra S.R.T.C. ((1999) 1 SCC 90) | Definition/meaning of the word "just" — equitability, fairness and reasonableness. | The Tribunal invoked this Supreme Court decision to construe "just" expansively (equity, fairness and reasonableness) when considering whether restoration was appropriate. |
| Sidhant Garg & Anr. v. Registrar of Companies and Ors. ((2012) 171 Comp.Cas. 326) | Interpretation of "just" as fair and prudent from a commercial point of view and consideration of societal perspective. | The Tribunal used this authority to emphasize that "justness" should be examined commercially and societally, not solely from creditor/member perspectives, when deciding restoration. |
| M.A. Rahim & Anr. v. Sayari Bai (DB) (MANU/TN/0218/1973) | Held that "just" connotes reasonableness, rectitude and justice — something equitable and fair. | The Tribunal cited it to support the interpretation of "just" when evaluating whether restoration ought to be ordered. |
| Ratanshi Panchan Tank v. Registrar of Companies Kerala (Full Bench) (1969 KLT p 858) | Principles regarding statutory fees: fees for registration are payable on presentation; fees are payable before commencement of services and are not refundable merely because services are not later required. | The Tribunal relied on the passages quoted from this decision to underscore that statutory fees are payable on presentation and that there is no inherent statutory right to recover a fee simply because the payer later no longer wants the services — supporting the point that waiver/refund is not a statutory norm. |
| Ascot Shoes Pvt. Ltd. v. Registrar of Companies ((2017) 2 CompLJ 118 (Del)) | Emphasized management's duty to ensure statutory compliances and exemplified that restoration can be subject to costs and penal actions where long non-compliance is established. | The Tribunal referred to this decision to note that long non-compliance (e.g., non-filing for many years) attracts greater responsibility on the company's management and that restoration in prior cases was granted subject to costs and potential penal action — illustrating remedial conditions that could be imposed. |
| State of Andhra Pradesh v. Hyderabad Vegetable Products Company Ltd. (1962 32 Comp. cases p.164 (AP)) | Definition of "creditor" to include every person having a pecuniary claim whether actual or contingent. | The Tribunal cited this to confirm the legal position that those with pecuniary claims (actual or contingent) are creditors and thus may have standing in relevant restoration/appellate contexts. |
Court's Reasoning and Analysis
The Appellate Tribunal proceeded through the issues in a structured manner, addressing jurisdictional, statutory and factual aspects strictly on the basis of the provisions and authorities cited in the impugned order and the appeal:
- Limitation: The Tribunal accepted the Appellant's chronology and COVID-related judicial/administrative directions, concluding the appeal was within the period of limitation. The Tribunal applied a pragmatic, result-oriented approach and rejected any pedantic limitation challenge where no lack of bona fides or negligence by the Appellant was shown.
- Grounds for restoration: The Tribunal recognized two statutory bases for restoration under Section 252 — (i) that the company was carrying on business or in operation when struck off, and (ii) that it is "otherwise just" to restore the name (citing M.A. Panjwani). The Tribunal analyzed the meaning of "just" with reference to Helen C. Rebella, Sidhant Garg and M.A. Rahim to adopt an interpretation encompassing equitability, fairness, reasonableness and commercial prudence viewed in the wider societal context.
- Maintainability of the IRP's petition: The Tribunal noted that the restoration petition (C.P. No. 183/KB/2020) had been filed by the IRP pursuant to the Tribunal's own direction of 13.12.2019 and held that the petition was maintainable for the purposes for which it was filed (completion of CIRP), rejecting the ROC's contention that the IRP had no locus or that restoration was unnecessary for CIRP.
- Statutory regime on fees and the Tribunal's powers: The Tribunal carefully examined Section 403(1) (fee for filing) and Rule 12 of the Companies (Registration Offices and Fees) Rules, 2014, observing that these provisions expressly and unambiguously require payment of prescribed fees/additional fees for filing. The Tribunal held that statutory fee provisions and Rule 12 are inbuilt, self-contained and exhaustive on the subject of filing fees, and thus cannot be overridden by invoking general powers under Rule 11 (meet ends of justice) or Rule 14 (exemption from compliance with NCLT Rules). The Tribunal emphasized that incidental/ancillary powers cannot be read to displace substantive statutory powers expressly conferred by the statute.
- Application of precedents on fees/refund: The Tribunal relied upon Ratanshi Panchan Tank to underline the established principle that statutory fees are payable on presentation and that there is no general statutory right to recover fees merely because services are later not required; this reinforced the view that there is no statutory basis for waiving or refunding filing fees in the present circumstances.
- Balancing of outcomes: On the combined analysis, the Tribunal concluded that the NCLT's primary direction restoring the company's name (to enable effective completion of CIRP) could not be faulted. However, the Tribunal found the NCLT's further direction prohibiting the ROC from levying any fee/penalty to be legally untenable in the absence of any express provision authorizing waiver of fees/penalties under the Companies Act and relevant rules. Consequently, that specific direction was set aside to secure substantial justice.
Holding and Implications
The Appeal is allowed; the Appellate Tribunal upheld the NCLT's order restoring the company's name but set aside the NCLT's direction that the Registrar of Companies should not levy any fee or penalty in respect of filings.
Implications and direct consequences (as derived from the opinion):
- The restoration of the name of M/s Goouksheer Farm Fresh Pvt. Ltd. in the register of companies (ordered by the NCLT) stands and was not disturbed by this Appellate Tribunal.
- The specific NCLT direction prohibiting the ROC from levying fees/penalties for pending filings was quashed because there is no express statutory or rule-based power to waive such fees; therefore the ROC is not restrained by the NCLT order from demanding payment of the applicable filing fees/additional fees in accordance with Section 403(1) and Rule 12.
- The Appellate Tribunal found the appeal to have succeeded and disposed of it in favour of the Appellant; the appeal was allowed and no costs were awarded.
- The opinion did not purport to lay down any new substantive precedent beyond its application of existing statutory provisions and cited authorities; the decision resolved the parties' dispute by upholding restoration but denying a waiver of statutory fees.
Disposition (as recorded in the opinion): "Accordingly, the instant Appeal succeeds. In fine, the present Appeal is allowed. No costs." (Order dated 19th November, 2020; Members: Justice Venugopal M. (Judicial) and Kanthi Narahari (Technical)).
Venugopal M. J Introduction The Appellant has filed the instant Company Appeal being dissatisfied with the order dated 22.01.2020 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in C.P. No. 183/KB/2020 whereby the Company Petition was allowed with necessary directions.
2. The National Company Law Tribunal, Kolkata Bench, Kolkata while passing the impugned order dated 22.01.2020 had observed the following: - Ld. Counsel for the Petitioner appeared. Ld. Dy. ROC, WB appeared. CP No. 183/KB/2020 is filed by the RP for restoration of the name of the company (M/s Goouksheer Farm Fresh Pvt. Ltd.) in the register maintained by the Registrar of Companies.
3 Company Appeal (AT) No. 127 of 2020 This company is admitted in CIRP vide order dated 13.12.2019 in CP (IB)No. 1582/KB/2019. For completion of CIRP effectively, we restore this Company under Section 252(3) of the Companies Act, 2013. We direct the ROC, WB to restore the name of the company in the register of companies. We further direct the ROC, WB to not to levy any fee/penalty to the company because company is in CIRP. and consequently, allowed the Company petition with this direction and disposed of the same. Resume of Facts
3. The Registrar of Companies (Appellant) had struck off the name of the First Respondent / Company M/s. Goouksheer Farm Fresh Pvt. Ltd. after complying with all the requirements of Section 248 of the Companies Act, 2013 and the relevant rules made thereunder viz. Companies (Removal of Names of Companies from Register of Companies) Rules 2016.
4 Company Appeal (AT) No. 127 of 2020
4. The Financial Creditor (M/s. P.M. Cold Storage Pvt. Ltd.) filed an application u/s 7 of the I&B Code r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against the First Respondent/ Corporate Debtor M/s. Goouksheer Farm Fresh Pvt. Ltd. in CP (IB) No. 1582/KB/2019 wherein, by means of an order, the application to initiate Corporate Insolvency Resolution Process against the Corporate Debtor was admitted on 13.12.2019. Mr. Sanjeev Jhunjhunwala was appointed as an Interim Resolution Professional.
5. The second Respondent in his capacity as an Interim Resolution Professional pursuant to the direction of the National Company Law Tribunal, Kolkata Bench, Kolkata filed Company Petition No. 183/KB/2020 u/s 252(3) of the Companies Act, 2013 for restoration of the name of the First Respondent / Company together with the prayer to allow the second Respondent (Petitioner) to comply with the formalities of filing the pending Annual Returns of the said Company (struck off) without the payment of the penal fees levied by the Appellant / Authority.
6. The Tribunal through order dated 22.01.2020 disposed of the C.P. No. 183/KB/2020 ordering restoration of the Company with the direction to the Appellant not to levy any fee / penalty to the Company because of the fact that the Company is in Corporate Insolvency Resolution Process.
7. Assailing the Correctness, validity and legality of the impugned order dated 22.01.2020 passed by the Tribunal, the Appellant / Authority has
5 Company Appeal (AT) No. 127 of 2020 preferred the instant Appeal contending that Section 403 (1) of the Companies Act, 2013 specifies that any document required to be filed under the Act shall be filed within the time prescribed in the relevant provisions on payment of such fee as may be prescribed. Appellants Submissions
8. The Learned Counsel for the Appellant submits that as per first proviso to Section 403(1) of the Act, any document, fact or information required to be submitted, filed, registered or recorded, as the case may be, under Section 92 or 137 is not submitted, filed, registered or recorded, as the case may be, within the period provided in those Sections, without prejudice to any other legal action or liability under this Act, it may be submitted, filed, registered or recorded, as the case may be, after expiry of the period so provided in those sections, on payment of such additional fee as may be prescribed, which shall not be less than Rs. 100/- per day and different amounts may be prescribed for different classes of companies.
9. The Learned Counsel for the Appellant contends that in terms of Rule 12 of Companies (Registration Offices & fees) Rules, 2014, the documents required to be submitted, filed, registered or recorded or any fact or information required or authorised to be registered under the Act shall be submitted, filed, registered or recorded on payment of the fee or on payment of such additional fee as applicable, as mentioned in Table annexed to these Rules. However, the Tribunal directed the Appellant not to levy any fee / penalty to the Company.
6 Company Appeal (AT) No. 127 of 2020
10. It is the stand of the Appellant that as per Rule 87(a)(4)(d) of the National Company Law Tribunal Rules, 2016 where the Tribunal makes an order restoring the name of a Company in the register of companies, the order shall direct that the Company shall file pending Financial Statements and Annual Returns with the Registrar and comply with the requirements of Companies Act, 2013 and Rules made thereunder within such time as may be directed by the Tribunal.
11. The Learned Counsel for the Appellant comes out with an argument that there is no enabling provision for Waiver of Fees/Penalty under the Companies Act, 2013. It is further represented that there is no provision under the Companies Act, 2013 empowering the Appellant to enable filing of documents required to be registered / filed under the Act without payment of filing fee and /or payment of additional fee.
12. The other argument projected on the side of the Appellant is that the filing system in the office of Registrar of Companies (under Ministry of Corporate Affairs) is fully online and the system exhibits the filing fee and additional fee (if there is a delay) pursuant to Section 403 r/w table of fees relating to Rule 12 of Companies (Registration Offices and Fees) Rules 2014 while uploading a particular e-form/document by stakeholders and requires payment of the same for acceptance as part of the records of the Ministry of Corporate Affairs.
7 Company Appeal (AT) No. 127 of 2020
13. The Learned Counsel for the Appellant brings to the notice of this Tribunal that the Company had filed its Balance Sheet only upto the year 31.03.2015 and Annual Returns only upto the year 31.03.2016.
14. It is represented on behalf of the Appellant that the second Respondent (IRP) has no locus standi to file an application for restoration of the Company u/s 252(3) of the Companies Act, 2013. Besides this, it is the plea of the Appellant that restoration of Company is not required for recovering the dues or carrying out Corporate Insolvency Resolution Process or Winding Up proceedings of the struck off Company as per Sections 248(8) and 250 of the Companies Act, 2013.
15. In effect, it is the prime stand of the Appellant that the Tribunal had no jurisdiction in issuing a direction to the Appellant to waive the payment of fee / penalty and any such endeavour would be devoid of Law. Second Respondents Pleas
16. Section 403 of the Companies Act is to be referred and / or taken into consideration only at the time of filing of any documents, records which is required to be filed under this Act. Further, Rule 14 of National Company Law Tribunal Rules, 2016 empowers the Tribunal to exempt the parties from compliance with any requirement of these Rules.
17. Moreover, Rule 11 of the NCLT Rules the grants power to the Tribunal to make such orders as may be necessary for meeting the ends of justice. The
8 Company Appeal (AT) No. 127 of 2020 Appeal filed by the Appellant is not maintainable. A duty is showered on the Registrar of Companies upon receiving the direction from the Tribunal to restore the Company as if the name of the Company had not been struck off from the Register of Companies. Appraisal
18. According to the Appellant, the present Appeal is well within the limitation period as per Section 421(3) of the Companies Act, 2013 as the Appellants office came to know about the impugned order only on 05.02.2020 when it received the letter dated 03.02.2020 from the authorised representative of the second Respondent enclosing the copy of the impugned order dated 22.01.2020 passed by the Tribunal, Kolkata Bench in in C.P. No. 183/KB/2020. Thereafter, the office of the Appellant had applied for a certified copy of the impugned order on 04.03.2020 and the same was received on 11.03.2020.
19. The categorical stand of the Appellant is that the Ministry of Home Affairs, Government of India imposed a nationwide lockdown due to COVID 19 being declared as pandemic by the World Health Organisation w.e.f. 24.03.2020 which was extended from time to time by the Ministry of Home Affairs and the State Governments.
20. Added further, the Appellant takes a plea that the Honble Supreme Court issued a direction for extension of the period of limitation as per order
9 Company Appeal (AT) No. 127 of 2020 dated 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3/2020. In fact, the National Company Law Appellate Tribunal vide F.No. 10/37/2018 dated 24.03.2020 extended the period of limitation for filing the Appeal before it w.e.f. 15.03.2020 till further orders in terms of the direction dated 23.03.2020 issued by the Honble Supreme Court in Suo Motu Writ Petition (Civil) No. 3/2020.
21. The Learned Counsel for the Appellant points out that the period of limitation of 45 days in the present case will lapse on 24.07.2020 and the details are as under:- 05.02.2020 to 04.03.2020 29 days 11.03.2020 to 14.03.2020 04 days 13.07.2020 to 24.07.2020 12 days Total 45 days and, therefore, it is contended on behalf of the Appellant that the instant Appeal is well within the period of limitation.
22. Taking into consideration of the aforesaid sufficient pleas of the Appellant in a careful, cautious, practical, meaningful and pragmatic manner, when no lack of bonafides or inaction or negligence is attributable to the Appellant, this Tribunal, by resorting to a result oriented approach and avoiding a pedantic approach without any haziness holds that the instant Appeal filed by the Appellant is well within the period of limitation.
23. It is to be pointed out that there are two circumstances in which the Tribunal can exercise power to restore the name of the Company (i) when it is
10 Company Appeal (AT) No. 127 of 2020 satisfied that the Company was at the time of striking off its name from the register, carrying on business or was in operation. (ii) When it appears to the Tribunal that it is otherwise just that the name of the Company be restored as per decision M.A. Panjwani V. Registrar of Companies and Ors. reported in (2015) 124 CLA 109(Delhi).
24. At this stage, this Tribunal amply points out that the Honble Supreme Court in the decision Helen C. Rebella V. Maharashtra S.R.T.C. reported in (1999) 1 SCC at page 90 had observed that the word just denotes equitability, fairness and reasonableness having a large peripheral field.
25. Furthermore, in the decision Sidhant Garg and Anr. V. Registrar of Companies and Ors. reported in (2012) 171 Comp.Cas. 326 it is held that the word just would mean that it is fair and prudent from a commercial point of view to restore the Company and that the Court has to examine the concept of justness not exclusively from the perspective of a creditor or a member or a debtor but from the perspective of the society as a whole.
26. In the decision M.A. Rahim and Anr. V. Sayari Bai (DB) reported in (MANU/TN/0218/1973) it is held that the word just connotes reasonableness and something conforming to rectitude and justice, something equitable and fair.
27. In this connection, this Tribunal, worth recollects and recalls the decision Ratanshi Panchan Tank V. Registrar of Companies Kerala and
11 Company Appeal (AT) No. 127 of 2020 others (Full Bench) reported in 1969 KLT p 858 wherein at paragraph 3 and 4 it is observed as under: -
3. The services end when, on being so satisfied the Registrar proceeds to effect the registration, or, on not being so satisfied, he refuses registration. Although there would appear to be no express provision as in S. 80 of the Indian Registration Act that, all fees for the registration of documents shall be payable on the presentation of such documents, it seems to us obvious that the fee payable for the registration of a Company, under S.611 r/w item 2 Schedule X of the Companies Act, is payable on the presentation for registration of the documents specified in sub-section (1) of S.
33 of that Act. That would only
12 Company Appeal (AT) No. 127 of 2020 be in keeping with the general scheme by which all statutory fees are invariably made payable before the commencement of the services for which they are intended.
4. The petitioners case is that he has not been rendered the services for which he paid the fee and that therefore he is entitled to get back the fee but the Registrar never refused the services; in fact he has already rendered part of the services; and if the services have not been completed it is only because the petitioner does not want them. The Registrar is, and has been, ready to perform the services for which the fee was paid and complete the registration, or if the Company cannot be registered under the provisions of the Act, to refuse registration. Whatever be
13 Company Appeal (AT) No. 127 of 2020 the rights of a person who pays money under a contract for services to be rendered but subsequently declines the services, we do not think that, in the absence of a provision to that effect in the statute concerned, a person paying a fee under a statute has the right to get back the fee because he no longer wants the services for which the fee was paid. Whether he would have a cause of action for damages or for compelling the services, if the services are improperly declined, is an altogether different question.
28. In the decision Ascot Shoes Private Limited V. Registrar of Companies reported in (2017) 2 CompLJ118(Del) wherein at paragraph
12 it is among other things observed as under:- 12At the same time, however, there is no gainsaying the fact that a greater degree of care was
14 Company Appeal (AT) No. 127 of 2020 certainly required from the petitioner Company in ensuring statutory compliances. Looking to the fact that annual returns and balance sheet were not filed for almost fourteen years, the primary responsibility for ensuring that proper returns and other statutory documents are filed in terms of the statute and the rules, remains that of the management. and ultimately the petition was allowed by ordering the restoration of Companys name to the Register maintained by the Registrar of Companies subject to the payment of costs of Rs. 22,000/-. Furthermore, liberty was granted to the Respondent therein to proceed with penal action against the Company, if so advised, under Section 162 of the Companies Act, 1956.
29. Section 252(1) of the Companies Act, 2013 deals with filing of an Appeal to Tribunal by any person aggrieved by an order of the Registrar, notifying a Company as dissolved u/s 248 etc. Indeed, an application to the Tribunal before the expiry of 20 years from the publication in the Official Gazette of the notice under sub-section 5 of Section 248 of the Act
15 Company Appeal (AT) No. 127 of 2020 can be made by any Member, Creditor or Workman thereof being aggrieved by the order of Registrar of Companies striking off the name of the Company from the register of Companies as per Section 252(3) of the Companies Act.
30. In fact, every person having a pecuniary claim against the Company whether actual or contingent is a Creditor as per decision State of Andhra Pradesh V. Hyderabad Vegetable Products Company Ltd. reported in 1962 32 Comp. cases p.164 (AP).
31. It is pertinently pointed out that Section 92 of the Companies Act, 2013 r/w Rule 11 of the Companies (Management and Administration) Rules, 2014 provides for filing of Annual Return of a Company in the prescribed form. By filing the Annual Return mentioning enough disclosures at the end of each Financial Year no doubt, the Shareholders interests and that of public will be safeguarded. In reality, the liability under Section 92 of the Companies Act, 2013 is that even a defunct Company, like every other Company is under an obligation to file the statutory Annual Return till it is wound up or till such time the Company is struck off by the Registrar as per Section 248 of the Companies Act, 2013.
32. Be it noted, that Section 403 of the Companies Act speaks of Fee for filing etc. The Table of Fees for filing, etc. is given as Annexure to Companies (Registration Offices and Fees) Rules, 2014.
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33. It is relevant to point out that a Court of Law / Tribunal may read any ancillary / incidental power in aid of main power. But, such an aid of incidental power ought not to fall in the domain of substantive power of any fora because substantive power is to be expressly conferred by the statute.
34. One cannot brush aside a primordial fact that there is no provision under the Companies Act, 2013 which permits the Appellant to file the documents sought to be registered /filed under the Companies Act without payment of the requisite filing fee and / or payment of additional fee. To put it cocksurely, there is no express / enabling for waiver of fees / penalty under the Companies Act.
35. It is to be remembered that Rule 12 of Companies (Registration Offices and Fees) Rules, 2014 says that the documents required to be submitted, registered or recorded or any fact or information required or authorised to be registered under the Companies Act shall be submitted, filed, registered or recorded on payment of the fee or on payment of such additional fee as applicable, as mentioned in table annexed to the Rules.
36. One cannot remain oblivious of the fact that, against the First Respondent / Company Corporate Insolvency Resolution Process was initiated by a Financial Creditor / P.M. Cold Storage Pvt. Ltd. in CP IB 1582/KB/2019.
37. An Appeal can be filed by a person aggrieved by the Registrar of Companies Order notifying the dissolution of the Company, within three
17 Company Appeal (AT) No. 127 of 2020 years from the date of order of the Registrar of Companies communicating the reasons thereto.
38. In Law, the dissolution of a Company will not result in removing the Debtors liability of the Company for the purpose of discharging the dissolved Companys obligations / liabilities /payment(s) it can carry on its operations.
39. As regards the plea of the Appellant that the restoration of Company is not needed for recovery of due(s) or carrying out the Corporate Insolvency Resolution Process or winding up of the struck off Company as per Sections 248(8) and 250 of the Companies Act, 2013, it is to be pointed out that the C.P. No. 183/KB/2020 before the Tribunal was filed by the Interim Resolution Professional (second Respondent) based on the direction issued by the Tribunal in its order dated 13.12.2019 to file necessary petition for restoration of the Company and hence, the said C.P. No. 183/KB/2020 is maintainable in Law.
40. In so far as the plea taken on behalf of the second Respondent that Rule 11 of National Company Law Tribunal Rules, 2016 empowers the Tribunal to make such orders as may be necessary for meeting the ends of justice, it is to be pointed out that the same cannot be pressed into service, when Section 403(1) of the Companies Act, 2013 deals expressly with fee for filing etc. coupled with Rule 12 of Companies (Registration Offices and Fees) Rules, 2014 are regarded as an inbuilt, self-contained
18 Company Appeal (AT) No. 127 of 2020 and exhaustive ones. Viewed in that perspective, the invocation of Rule 11 of NCLT Rules, 2016 by the second Respondent is of no avail.
41. Dealing with the stand taken on behalf of the second Respondent that Rule 14 of National Company Law Tribunal Rules, 2016 empowers the Tribunal to exempt the parties on sufficient cause being shown from compliance with any requirement of these Rules etc., it is to be pointed out that when there is an existence of Rule 12 of Companies (Registration Offices and Fees) Rules, 2014 which is quite explicit, unambiguous, admits of no exception and deals with the documents required to be submitted, filed registered etc. to be made / done on payment of the fee or on payment of such additional plea as applicable, as mentioned in table annexed to these Rules, seeking umbrage to Rule 14 of National Company Law Tribunal Rules, 2016 is an otiose one, because of the fundamental reason that the procedural wrangle cannot be permitted to be shaked or shackled with. Therefore, the contra stand taken on behalf of the second Respondent is not acceded to by this Tribunal.
42. For the foregoing detailed discussions and ongoing through the impugned order of the Tribunal in C.P. No. 183/KB/2020 dated 22.01.2020, this Appellate Tribunal, comes to a resultant conclusion that the issuance of direction to the Appellant / ROC, West Bengal to restore the name of the Company (M/s Goouksheer Farm Fresh Pvt. Ltd.) (First Respondent - in Appeal) for completion of Corporate Insolvency Resolution Process effectively in the register of Companies cannot be found fault with.
19 Company Appeal (AT) No. 127 of 2020 However, the further direction issued by the Tribunal, to the Appellant not to levy any fee / penalty to the Company because Company is in Corporate Insolvency Resolution Process is legally untenable, especially in the absence of any express provision under the Companies Act, 2013 and the relevant Rules for waiver of fees / penalty in respect of filing of documents required to be registered / filed under the Companies Act and the said direction is set aside by this Tribunal, to secure the ends of substantial justice. Accordingly, the instant Appeal succeeds. Disposition In fine, the present Appeal is allowed. No costs. [Justice Venugopal. M] Member (Judicial) [Kanthi Narahari] Member (Technical) NEW DELHI 19th November, 2020
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