2024 (2) TMI 570 - AT - Companies Law

Appellant fails to introduce additional evidence after statutory deadline under Section 420(2) Companies Act 2013

M/s AKL Enterprise Private Limited Versus Registrar of Companies, Odisha

NCLAT Principal Bench dismissed appeal challenging NCLT order regarding company revival and additional evidence. Appellant sought to introduce additional ... Prayer for reception of additional documents and to consider the revival of the Company - Respondent / ROC had not followed the procedure u/s 248(1) of the Companies Act, 2013 - ‘Notices’ u/s 248(1) were not sent - ingredients of Section 248(6) of the Companies Act, 2013 not taken note of - HELD THAT:- The power of a Tribunal, to permit additional evidence to produce/documents are within the jurisdiction of the Appellate Authority. A document not pertinent to decide the dispute/controversy in a given proceeding/suit, is not to be accepted as Additional Evidence. Besides this, if there is any lacuna or gap 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. This Tribunal on going through the impugned order [2023 (8) TMI 1429 - NATIONAL COMPANY LAW TRIBUNAL CUTTACK] 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 - 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. As a matter of fact, the production of Additional Evidence, is not to be allowed, when an individual does not satisfy the Court of Law / Tribunal that such evidence was not within the knowledge or could not be produced with ‘Due diligence’. This Tribunal on going through the impugned order is of the earnest opinion that the Appellant had not preferred IA No. 19/CB/2023 in CP No. 70/CB/2020 within a two years period, as enjoined as per Section 420(2) of the Companies Act, 2013 and indeed, the IA No. 19/CB/2023 in CP No. 70/CB/2020 came to be filed before the Tribunal on 16.12.2022 after a lapse of two years period on 16.12.2022. Therefore, the Tribunal had rightly opined that IA No. 19/CB/2023 in CP No. 70/CB/2020 was not to be considered in regard to the reception of additional documents/additional evidence. Appeal dismissed. Issues Involved:1. Misinterpretation of 'Liberty' granted by the High Court.2. Failure to file statutory documents and maintain business operations.3. Procedural lapses by the Registrar of Companies (ROC).4. Consideration of additional documents for revival of the company.5. Compliance with Section 252(3) and Section 420 of the Companies Act, 2013.Summary:Issue 1: Misinterpretation of 'Liberty' granted by the High CourtThe Appellant argued that the National Company Law Tribunal (NCLT) misinterpreted the 'Liberty' granted by the Hon'ble High Court of Orissa, claiming the Tribunal failed to appreciate the clear liberty granted to file an amendment application. The Tribunal held that the application to receive additional documents was beyond the scope of the High Court's permission.Issue 2: Failure to file statutory documents and maintain business operationsThe Appellant contended that the company was active and maintaining requisite books of accounts. However, the Tribunal noted that the company failed to file Annual Returns for the Financial Years 2016-2017 and 2017-2018, leading to its name being struck off. The Tribunal observed that the company was not a 'Going Concern' and had no business operations during the relevant period.Issue 3: Procedural lapses by the Registrar of Companies (ROC)The Appellant claimed that the ROC did not follow the procedure under Section 248(1) of the Companies Act, 2013, and did not send notices as required. The Tribunal found that the ROC had issued a show cause notice and published the name in the official gazette, fulfilling the procedural requirements.Issue 4: Consideration of additional documents for revival of the companyThe Appellant sought to introduce additional documents to prove the company's operations. The Tribunal held that additional evidence could not be accepted merely to tilt the decision in the Appellant's favor and emphasized that the production of additional evidence is not allowed if it could have been produced with due diligence earlier.Issue 5: Compliance with Section 252(3) and Section 420 of the Companies Act, 2013The Tribunal noted that the Appellant did not file the application within the two-year period required under Section 420(2) of the Companies Act, 2013. The Tribunal concluded that the application for reconsideration and revival of the company was filed after the lapse of the statutory period and thus could not be entertained.Result:The appeal was dismissed, and the Tribunal's order dated 08.08.2023 was upheld, finding no legal flaws. The connected pending IAs were also closed.