Panthera Developers Pvt. Ltd vs Sankalp Buildwell Pvt. Ltd. & Ors
COMPANY APPEAL (AT) NO.55 OF 2023
Facts:
1.An Application bearing CP No.58/2012 under Section 397 and 398 read with Section 402 and 403 of the Companies Act, 1956 primarily making an allegation of oppression and mismanagement of Respondent No.1 company and for seeking various relief was filed by the Appellant.
2.During the pendency of the said Company Petition since the appellant failed to file statement and annual return before the Registrar of Companies (hereinafter referred to as ROC) by order dated 08.08.2018 exercising powers under Section 248(5) of the Companies Act, 2013 the ROC struck down the name of the appellant company from the register of companies maintained in the office of ROC
3.Appellant in CP No.58/2012 had claimed that it was holding 60000 Class A equity shares of Respondent No.1 company. Subsequently after the name of the company was struck off from the register of ROC by order dated 08.08.2018 the appellant filed an appeal under the provisions of Section 252 of the Companies Act, 2013 before the NCLT vide Appeal No.209/252/ND/2019 which was allowed vide order dated 15.05.2019 subject to certain conditions and allowed restoration of name.
4.Appellant did not take any proper step and much belatedly in the year 2022 on behalf of the appellant an application vide CA No.448/2022 was filed before the NCLT under Rule 11 of the NCLT Rules, 2016 which dismissed the appeal and imposed cost of Rs.50,000/-. Against the said order the appellant preferred an appeal vide Company Appeal (AT) No.7/2023.
Issue: Whether the appellant company whose name was struck of from the records of ROC can continue the application filed against another company for oppression and mismanagement?
Arguments:
For Appellant:
1.Counsel for appellant submitted that impugned order i.e. order dated 13.01.2023 has primarily argued that only on the ground that appellant company’s name has been struck off from the register of ROC the Company Petition filed by t he appellant i.e. CP No.58/2012 was not required to be rejected by NCLT.
2.It was submitted that even after the name of the Company was struck off from the register of ROC the Company Petition i.e. CP No.58/2012 was required to proceed. He submits that the appellant company was having huge share holding in the Respondent No.1 company and since there were complete oppression and mismanagement the appellant had filed CP No.58/2012. It relied on the case of Commissioner of Income Tax, Jaipur Vs. Gopal Shri Scrips Pvt Ltd.
For Respondent:
1.Counsel submitted that once the appellant company cease to remain as company the Learned NCLT has rightly allowed the application filed by the Respondent No.1 for dismissal of CP No.58/2012 which was primarily filed on an allegation of oppression and mismanagement of Respondent No.1.
2.It was submitted that after the name of the appellant company was struck off from the register of ROC there was no reason to allow the said company petition to further continue. He further submits that the nonseriousness on the part of the appellant is evident from the fact that after the submission of annual return/statement lastly on 31.03.2012 before the ROC, no step was taken by the appellant company to file annual return/statement continuously and only thereafter, the learned ROC exercising powers under Section 248 of the Companies Act, 2013 on 08.08.2018 issued final notice regarding striking off the name of the appellant company from the register of ROC.
Decision: Appellant company whose name was struck of from the records of ROC cannot continue the application filed against another company for oppression and mismanagement.
1.Hon’ble NCLAT noted that Once the name of the appellant company was ceased to be company it was not competent to maintain the CP No.58/2012. The Learned NCLT rightly dismissed the same by the impugned order.
2.After striking off the name of the appellant company the appellant was not entitled to pursue the CP No.58/2012 which was primarily filed on an allegation of oppression and mismanagement of Respondent No.1 not for realisation of any debt. In so far as reliance placed by learned counsel for the appellant on Gopal Shri Scrips Pvt Ltd’s case (Supra) is concerned, it noted that the appellant may not get any assistance from the said judgement. The said case was primarily in relation to Tax liabilities and in the said case provisions of Income Tax Act, 1961 particularly Section 260 A and176 of the Income Tax Act was under consideration besides the provisions contained under Section 560 of the Companies Act.
Order Copy:
