Case Law Details
Everest Pharmaceutics Pvt Ltd. Vs Office of Registrar of Companies (NCLAT Delhi)
NCLAT Delhi requested the Secretary, Ministry of Corporate Affairs, Govt of India to get detailed enquiry/ investigation by an appropriate authority/agency as in number of court proceedings the parties are coming with fabricated document.
Facts- The present appeal has been preferred by the appellant challenging the order passed by the National Company Law Tribunal. Vide the said order, the appeal preferred by the Appellant u/s. 252 (3) was dismissed.
The appellant has stated that the name of the company was erroneously struck off by the Respondent on 08.11.2012 on account of alleged delay in filing of Annual Return and Balance Sheet with the Registrar of Companies, West Bengal, even when the said Appellant Company was actively involved in business. It was also stated that company was unable to comply with its statutory returns due to being kept occupied with the critical health condition of Mr. Tapan Dhar, the KMP and one of the Directors of the Company, for an elongated period of time. The Management was unaware of the fact that the company has been defaulting in its statutory compliance with the ROC as the professional appointed, entrusted and authorised with the task to look after and complete the statutory compliances of the company with the ROC, IT Department and other statutory authorities neglected his responsibility and did not do his job and neither informed or intimated or revealed about the situation to the other officers of the company.
Conclusion- Held that considering the fact that certain documents particularly Auditors report etc. have been brought on record in the present judicial proceeding which prima facie creates serious doubts regarding its genuineness in the mind of the Court it would not be appropriate to simply shut our eyes on such issues. We are noticing that in number of court proceedings the parties are coming with fabricated documents. Now it is high time to take serious note of such thing. It appears that since we are ignoring those issues, approaching the court with such fabricated document has now become rampant. Accordingly with a view to uphold the majesty of law it is desirable to direct for conducting a detailed enquiry/investigation to ascertain veracity of aforesaid documents which have been brought on record in the present appeal particularly directors report/auditors reports/Balance sheets. Besides brining on record aforesaid doubtful documents in the present appeal the appellant has made an incorrect statement in para 7.5 wherein it has been indicated as if the appellant company was struck off in the year 2012 whereas the company was already struck off long back in the year 2008. In such view of the matter it is desirable to request the Secretary, Ministry of Corporate Affairs, Govt of India to get the matter enquired/investigated by an appropriate authority/agency for its logical end.
FULL TEXT OF THE NCLAT JUDGMENT/ORDER
The present appeal has been preferred under Section 421 of the Companies Act, 2013 against an order dated 25.02.2020 passed in Appeal No.1375/KB/2019 by the National Company Law Tribunal, Kolkata Bench (hereinafter referred to as NCLT). By the said order the appeal preferred by the Appellant under Section 252 (3) was dismissed. For better appreciation it is necessary to reproduce order dated 25.02.2020 as follows:-
“1. This is an Application filed under section 252 (3) of the Companies Act, 2013 thereinafter, the Act) by one of the Shareholders of Everest Pharmaceutics Private Limited (hereinafter, the Company) for restoration of name of the Company struck off by the Registrar of Companies, West Bengal (hereinafter, the RoC).
2. The Appellant submits that:
a) The name of aforesaid company is incorrectly shown as Everest Pharmaceuticals Private Limited in the register(s)/records/master data maintained by the Registrar of Companies (West Bengal), Kolkata and needed to be rectified/corrected by them.
b)That the aforesaid Company was incorporated under Companies Act, 1956 as a Private Limited Company. The authorised Share Capital of the Company is Rs. 5.00.000 divided into 5,000 equity shares.
c)The Registrar of Companies, West Bengal, ie. the Respondent, struck off the Company’s name from the Register due to defaults in statutory compliance. namely, failure in filing the Financial Statements and Annual Return from the financial years ending 31.03.2000 till 31.03.2019.
d) The Company did not receive any notice(s) pursuant to sub-section (1), (2) and (3) of Section 560 of the Companies Act, 1956 from the Respondent, however, it had received the final notice duly issued by the Respondent pursuant to sub-section (5) of Section 560 of the Companies Act, 1956, dated 28.05.2008. The Company was unable to comply with its statutory filings due to critical health condition of Mr. Tapan Dhar, the Key Managerial Personnel (hereinafter, KMP), one of the Directors of the struck off Company since 2017. Moreover, the management was unaware of the fact that the Company has been defaulting in its statutory compliance with the RoC as the professional appointed, entrusted and authorised with the task to look after and complete the statutory compliance neglected its responsibility and did not do his job, he neither informed or intimated about such situation to the Company,
e) The Company is carrying on its business as stated in its Memorandum and Articles of Association since its incorporation except, its manufacturing operations have been hampered and halted since September, 1999 due to an unjustified and unlawful strike of its workers union causing a The Company is a going concern which is evident from its various documents/statements/bills/records issued at the address of the Registered Office and books of accounts including audited Balance Sheets for all the periods since its inception which were regularly prepared and maintained.
f) The Company was also allotted a land by the Government of West Bengal on a lease of 999 years for the purpose of setting up a manufacturing unit in the year 2009, the construction plan at the said land has also been approved by the Government authorities and the construction was/is supposed to start/resume immediately but the Company has not been able to do so due to it being struck off by the RoC.
3. Notice of this Appeal was served on the Regional Director, Eastern Region, RoC and Income Tax Authority. In pursuance of the service of notice. ROC West Ben3al appeared in the matter and submitted, through its report dated 04.11.2019, as follows.
a) The Petitioner’s claims that he is one of the Shareholders of the Company, cannot be verified since the Company has not filed any return of allotment with the office of Registrar of Companies, West Bengal
b) The competent authority has struck off the name of the Petitioner Company under Section 560 of the Companies Act, 1956 since he had reasonable cause to believe that the Company was not carrying on business or in operation.
c) It is evident from the record that the Company has not filed its balance sheets and annual returns since financial year 31.03.2000 with the office of the Respondent As per Section 560(5) of the Companies Act, 1956 corresponding to Section 252 of the Companies Act, 2013 a struck off Company can be restored only on the direction of the Hon’ble NCLT before expiry of 20 years from the publication in the official Gazette of the notice. In this regard it is submitted that in terms of the said provisions, the Hon’ble NCLT while passing an order for restoration is to be satisfied that the Company is carrying business or is in operation. Copies of notice under section 560(1) 560(2) and 560(5) are attached and collectively marked as Annexure-A to the report.
d) As per the records maintained by the office of the Registrar of Companies: West Bengal the Company was incorporated on 31.03.1961 and the aforesaid Company was struck off on 08.11.2012 after complying with the provision of section 560(5) of the Companies Act, 1956. The RoC has issued notice under section 560(5) of the Companies Act, 1956 for removal of name of the Company from the register of the Companies as there was reasonable cause to believe that the Company was not functioning or in operation for the period of several years.
e)Accordingly, it is submitted that if this Hon’ble NCLT on being satisfied that the Company was in operation at the time of striking off the name of the Company at all, directs the Respondent to restore the name of the Company, then there i be a direction upon the Petitioners to make up to date filing of all statutory documents and to make all legal compliances prescribed under the Companies Act, 1956/2013 immediately after restoration of the name of the Company,
4. We have heard both the parties and have gone through the record and proceedings of this case.
5. As per the record, the Appellant Company has admittedly committed default in filing the Annual Return and Balance Sheet from the financial year ending on 31.03.2000, and therefore, the Registrar of Companies, West Bengal had suo motu struck off the name of the Company from the Register and thus, the present Appeal.
6.The Appellant contends that the Company was carrying on its business and was in operation at the time of striking off of its name. The Ld. Counsel appearing for the Appellant referred to and relied on the Balance Sheet and Profit & Loss Accounts, for the years 2000-2001 to 2016-17. From perusal of the said documents it is clear that there has been no revenue generated in/by the Company since the date of its incorporation, it has been under losses and the only expense that the Company has been incurring are the general expenses and audit fees.
7.Section 252(3) of the Companies Act, 2013 confers upon the Tribunal ample power to order restoration of a Company whose name has been struck off from the Register of Companies, if the Company, at the time of its name being struck off was carrying on its business or was in operation or it is otherwise just that the name of the Company be restored on the register. It is significant to note the observations of the Hon’ble NCLAT in this regard in its order dated 9th July, 2019, in the matter of Alliance Commodities Pvt. Ltd. v. Office of Registrar of Companies, West Bengal (Company Appeal (AT) No. 20 of 2019):- Para 9 and 12 is extracted hereunder:
“9. This term “or otherwise” has been judiciously used by the legislature to arm the Tribunal to order restoration of a struck off company within the permissible time limit to take care of situations where it would be just and fair to restore company in the interest of company and other stakeholders. Such instances can be innumerable. However, this term “or otherwise cannot be interpreted in a manner that makes room for arbitrary exercise of power by the Tribunal when there is specific finding that the Company has not been in operation or has not been carrying on business in consonance with the objects of the Company. A Shell Company or a Company having assets but advancing loans to sister concerns or corporate persons for siphoning of the funds, evading tax or indulging in unlawful business or not abiding by the statutory compliances cannot be allowed to invoke this expression “or otherwise” which would be a travesty of justice besides defeating the very object of the Company. Such course would neither be just nor warranted.”
12. As a result of the aforesaid discussion, it is inferred that there is no just reason to restore the Company’s name on the Register of Companies. Since the Company seems to be not an active Company and not carrying on the business for which it was incorporated, the appeal is liable to be dismissed.”
8.The facts in the instant case are similar to the facts in above-mentioned care Here in this case, the Company has not shown any revenue generation, or any business/commercial activities all through. In view of the above-said the prayer of the Appellant to restore the name of the Company in the Register of Companies maintained by the ROC, West Bengal cannot be granted. The Appeal is, therefore, dismissed with no order as to costs.
9. Urgent certified copy of this order, if applied for, be issued upon compliance with all requisite formalities.
2. In the Memo of Appeal at para 7.5 the appellant has stated that the name of the company was erroneously struck off by the Respondent on 08.11.2012 on account of alleged delay in filing of Annual Return and Balance Sheet with the Registrar of Companies, West Bengal, even when the said Appellant Company was actively involved in business. The reason for delay in filing appeal before the NCLT has been stated in para 7.6 where it is stated that the delay was unintentional and company was unable to comply with its statutory returns due to being kept occupied with the critical health condition of Mr. Tapan Dhar, the KMP and one of the Directors of the Company, for an elongated period of time. The Management was unaware of the fact that the company has been defaulting in its statutory compliance with the ROC as the professional appointed, entrusted and authorised with the task to look after and complete the statutory compliances of the company with the ROC, IT Department and other statutory authorities neglected his responsibility and did not do his job and neither informed or intimated or revealed about the situation to the other officers of the company. It has been claimed that the appellant company did not get information about the notification regarding the “striking off” of the name of the appellant company from the register of Registrar of Companies. Only when the representatives of the appellant company tried to file/upload the balance sheet and annual returns of the company it came to the knowledge of the representative of the appellant company that the name of the appellant company was struck of. Finally on checking of the portal of the Ministry of Corporate Affairs for electronic filing of statutory documents, the status of the company was shown as “Strike off”.
3. The appellant in its Memo of Appeal has further claimed that the appellant company did not receive any notice or intimation from the ROC regarding striking off the name of the company and without providing any opportunity or any notice or providing opportunity of hearing, the name of the company was wrongly struck off. Thereafter the appellant in the month of February, 2019 filed an appeal under Section 252(3) of the Companies Act, 2013 before the NCLT.
4. That the statement regarding filing of the company petition under Section 252(3) of the Companies Act, 2013 in the month of February, 2019 before the NCLT has been mentioned in para 7.11 of the Memo of Appeal. It has been further pleaded that before the NCLT the delay in filing of the annual return of the company was not deliberate as the same was the result of an inadvertent and unintentional mistake and the company was unable to comply its statutory returns due to being kept occupied with the critical health conditions of Mr. Tapan Dhar, the KMP and one of the Directors of the struck off company for an elongated period of time.
5. That the appellant along with in the Memo of Appeal has also brought on record number of medical records of Mr. Tapan Dhar which are at running page from 285 to 303. In para 7.16 of the Memo of Appeal it has been reiterated that the appellant had categorically brought to the notice of the NCLT that the appellant company never received any notice or communication from the Respondent regarding the proceedings for striking off the name of the appellant company or about any such non-compliance. It was alleged that the Respondent/ROC even failed to comply with the provisions of Section 248(6) of the Companies Act, 2013 before striking off the name of the appellant company. It has also been pleaded that no opportunity of hearing or curing the defects and compliances were provided to the appellant company which was the principle of natural justice and equity.
6. In para 7.18 of the Memo of Appeal it has been stated “that it was brought to the notice of the Ld. NCLT, Kolkata that the accounts of the Appellant Company were prepared and audited every year. The copies of audited balance sheet, profit and loss accounts along with auditor’s report from Financial Year 1999-2000 onwards till 2018-2019 duly signed by the auditors and directors of the Appellant company were annexed with the Petition filed by the Appellant company, and also attached with the present appeal at Page 76 to 283. The Appellant in the Memo of Appeal has also stated that the attention of the NCLT Kolkata Bench was drawn that the appellant company was being actively functioning which was evident from the fact that the company was allotted a land by the Govt of West Bengal on 999 years lease for the purpose of setting up a manufacturing unit in the year 2009 and its construction plan was also approved by the State Govt. The appellant was/is supposed to start/resume construction work immediately, but not been able due to being struck off by the Respondent. The appellant has also brought on record letter of allotment of land with the present appeal which are at running page 306 to 324. In para 7.21 of the Memo of Appeal the appellant has made following statements:_
“The Appellant was unaware of the notification regarding striking off the name of the company from the register of the Respondent and as the appellant came to know the same, immediately steps were taken and the representative of the Appellant Company visited to the Registrar of Companies, West Bengal to change the status of the Company from “Strike Office” to “Active” so that the statutory compliances can be made as per the requirement of the Act, but to no effect.”
However, the Ld. NCLT by the impugned order has dismissed the appeal.
7. Mr. Avik Chaudhuri, learned counsel for the appellant submitted that the appellant company was incorporated under the Companies Act, 1956 on 31.03.1961 and till the year 1999 filed all balance sheets and statements before the Registrar of Companies. However, thereafter due to the reasons which were beyond control of the appellant company such compliances were not done and on 20.05.2008 the company was struck off under the provisions of Companies Act. He has drawn our attention to page 12 para 7.6 of the Memo of Appeal to highlight that due to critical health condition of Mr. Tapan Dhar one of the directors of the company for the long period statutory returns were not filed. He further submits that the Management was not even aware about the such default since the professional appointed and entrusted to take such steps had completely neglected the same. Learned counsel for the appellant has also drawn our attention to running page 285 to 303 to elaborate regarding the serious ailment of one of the directors namely Mr. Tapan Dhar. He has also drawn our attention to letter sent on behalf of the appellant company to the ROC which is at running page 305 and submits that immediately after coming to know the appellant approached the ROC with a request to allow the appellant company to reopen the company. He further submits that restoration of the name of the appellant company on the register of ROC is also necessary due to the reason that in one of the title suit decree has been passed against the appellant company and as such for pursuing the said matter it is necessary to restore the name of the company on the register of the ROC.
8. In sum and substance learned counsel for the appellant has argued that striking off the name of the appellant company from the register of ROC was in complete violation of principle of natural justice. Accordingly it was submitted that the order impugned is fit to be set aside and directions for restoring the name of the company to the ROC may be issued.
9. Mr. Vikrant N. Goyal, learned counsel has appeared on behalf of Respondent/ROC. At the very outset he submitted that the appellant on oath in the present proceeding has made a false statement. He has specifically referred to para 7.5 page 12 of the Memo of Appeal. He submits that admittedly the name of the appellant company was struck off in the year 2008 but the appellant has made false statement as if the name of the company was struck off on 08.11.2012. He further submits that no government land was required to be registered in the name of the appellant company in the year 2009, since its name was already struck off in the year 2008. However, incorrectly the government land was registered in the name of company in the year 2009.
10. It has also been argued by Mr. Goyal, learned counsel for ROC that since continuously balance sheets and returns were not filed on behalf of the appellant company right from the year 2000 the learned ROC in strict compliance with the provisions contained under Section 560(5) of the Companies Act struck off the name of the appellant company from the register of the ROC. According to learned counsel for the ROC there is no error in the impugned order and appeal is fit to be rejected.
11. Besides hearing learned counsel for the parties we have minutely examined the materials available on record and after going through the same prima facie we are of the opinion that learned NCLT has committed no error warranting interference and the order impugned is fully justified with sufficient reason. On examination of record and particularly running page 284 i.e. notification No.ROC/WB/PC/SM07 dated 28.05.2008 it is evident that the ROC exercising power under Section 560(5) of the Companies Act, 1956 struck off the name of the appellant company i.e. Everest Pharmaceuticals Pvt Ltd and the company was dissolved. Even though striking off and dissolution order was passed long back on 28.05.2008 the appellant did not take any step or even approached the Authority for assailing the said order by filing an application under Section 560(6) of the Companies Act, 1956 for restoration of its name to the register. It is admitted case of the appellant that after expiry of several years in the month of December, 2017 the appellant filed an application before the ROC wherein he requested for permitting him to reopen the company immediately. The letter dated 08.12.2017 which is at running page 305 is reproduced hereinbelow:
“With reference to our earlier letter dated 14.09.1999 and the copy of the same were subsequently deliver for the cause of unjustified strike by the workman union unlawfully and thereafter the company had no other alternative but to declared strike with effect from 03.09.1999.
It is further stated that during the ‘lock out’ period the company production has hampered and as a result the company is still facing a financial disbalance for this unwanted situation.
In view of the above, unwanted situation we on the behalf of the company would request your goodself to look into the matter so that we may re-open the company immediately, otherwise will be in a financial trouble for ever.
Kindly let us know if any procedure to be maintained by us prior to re-open the company from our end please.”
12. After filing appeal under Section 252 of the Companies Act, 2013 or even at the time of haring it was emphatically argued that before striking off the name of the company no opportunity was given or principle of natural justice was violated. However, for the first time in the year 2017 while the appellant filed application before the ROC no such plea regarding violation of principle of natural justice was taken; rather another ground was taken as if there was lock out in the company. Accordingly the plea taken on behalf of the appellant that without hearing or without any notice the company was struck off is not available to be taken at this stage. Moreover, if such ground is to be taken under the new Act under Section 252(1) an appeal was to be preferred within a period of three years. However, the appellant had filed an appeal before the NCLT precisely under Section 252(3) of the Companies Act, 2013. Under this provision the ROC is having jurisdiction to restore a struck off company in case it is satisfied that at the time of striking off, the company was carrying on business or in operation or otherwise it is just that the name of the company be restored and pass order for restoration of the name of the company. Under this provision there is no scope to advance an argument that order of striking off was passed without any notice to a company. This is the distinction in between the powers of Registrar under Section 252(1) and 252(3) of the Companies Act, 2013. For better appreciation it is necessary to reproduce entire section 252 of the Companies Act, 2013:-
“252. Appeal to Tribunal.— (1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, it may order restoration of the name of the company in the register of companies:
Provided that before passing any order under this section, the Tribunal shall give a reasonable opportunity of making representations and of being heard to the Registrar, the company and all the persons concerned Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of companies either inadvertently or on the basis of incorrect information furnished by the company or its directors, which requires restoration in the register of companies, he may within a period of three years from the date of passing of the order dissolving the company under section 248, file an application before the Tribunal seeking restoration of name of such company.
(2) A copy of the order passed by the Tribunal shall be filed by the company with the Registrar within thirty days from the date of the order and on receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation.
(3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies.
13. In the present case the name of the company was struck off under Section 560(5) of the Companies Act, 1956 and under the old Act power for restoration in particular was enumerated under Section 560(6). There is no doubt that in the present case name of the appellant company was struck off in the year 2008 and appellant filed appeal in the year 2019 under Section 252(3) of the new Act. On examination of the order impugned it is evident that Learned NCLT was not apprised as to whether at the time of striking off the name of the company the appellant company was carrying on any business or was in operation. In such view of the matter there was no reason for the NCLT to pass order of restoration of name of the company to the register of ROC. Whether the appellant was doing any business or not, onus was on the appellant to satisfy the learned NCLT. However, before the NCLT the appellant had brought on record the directors report, auditors report as well as balance sheets prepared by the Chartered Accountants which is from the year 2000 to 2019. Even before this Tribunal also the appellant has placed those reports which has been placed from running page 76 to 283. In aforesaid directors and auditors reports, report of CA namely C. Ghatak & Co is from the year 2006 to 2014. However, the auditors reports which has been shown from the year 2015 to 2019 which are on record of the present appeal has been shown to be prepared by one Ms Monika Bhadani, CA having Membership No.304748. On examination of aforesaid all the directors and auditors report which are from the year 2000 to 2019 prepared by two different Chartered Accountants it appears that those reports are not genuine or it appears that it is a table work done on the same date. Of course it is shown as if they were prepared on different dates. If some of the reports which has been brought on record in the present appeal is reproduced only one inference can be drawn as if those are not genuine and are fabricated report. For example we are placing the directors report dated 31.3.2000 which is at running page 76 auditors report for the same year with balance sheet which are at running page 77 to 82, directors report dated 31.03.2005 and auditors report for the same year i.e. report at page 107, 108 and auditors report for the same year from page 109 to 114 and directors report dated 31.03.2014 at running page 183, 184 and independent auditors report from 185 to 192. Similarly the directors report and auditors report for the year 2015 is reproduced which are at running page 193 to 210 and for the financial year ending on 31.03.2019 directors report and auditors report from running page 266 to 283 which are reproduced:-
14. If aforesaid reports are examined minutely one can come to the conclusion that all reports were prepared either by the same system i.e. computer or typewriter whatever may be since letters and font are appearing exactly to be same in all aforesaid reports. Even signatures which were put by Mr. Tapan Dhar and Ms Anita Dhar as well as right from the documents prepared in the year 2000 till the year 2019 are exactly the same. However, certainly on this strength without any scientific examination we may not record definite finding as if those documents are forged one or not but serious suspicion can be raised only on perusal of the same.
15. Besides afire referred circumstances, it is a peculiar case in which though company was incorporated long back the appellant himself admits that till the year 2019 the company was not allotted any PAN number by the Income Tax Department. It has been admitted by the appellant in para 7.4 of the Memo of Appeal which is reproduced hereinbelow:-
“7.4 The company has also applied with the Income Tax Department for allotment of Permanent Account Number (PAN) for enabling it to submit/file all its pending Income Tax returns, which the Company was unable to do for various reasons and circumstances as entailed in the Company Petition. Also, since the name of the Company differ in records of ROC, led to non-issuance of PAN card by IT Department. It is respectfully submitted that once the PAN being allotted to the Company by the IT Department, it undertakes to proceed with the filings of all its pending returns at once. The copy of
receipt/acknowledgement of such application with IT Department for obtaining PAN is attached with the present appeal at page 334 to 334.”
16. Besides the aforesaid statement running page 334 also reflects as if on 5.08.2019 on behalf of the appellant company PAN application was submitted. Running page 334 is reproduced hereinbelow:-
| “Received Rs.101.00 from | Everest Pharmaceuticals Pvt Ltd |
| Application No./Coupon No. | U-N003647588 |
| Name to be printed on PAN | Everest Pharmaceuticals Pvt Ltd |
| Date of Birth/incorporation | 31/03/1961 |
| Applicant’s contact details | 9830061221 |
| Communication Address | Office |
| Office State | West Bengal |
| Proof of identity | Certificate of Registration issued by ROC |
| Proof of address | Certificate of Registration issued by ROC |
| Proof of DOB | Certificate of Registration issued by ROC |
| Date of Receipt | 05/08/2019: 06:53:11 |
| Mode of pancard | Both physical PAN and e-PAN Card |
| Payment Ref No. | 8869508367 |
| Payment Date | 05/08/2019 06:54:10” |
17. Along with the Memo of Appeal the appellant has brought on record one document i.e. communication contained at running page 306, i.e. letter dated 01.10.2007 issued by Government of West Bengal, Urban Development Department, addressed to Mr. Tapan Dhar, Director, M/s Everest Pharmaceutics (P) Ltd. This is the notice issued by Government of West Bengal. It is appropriate to reproduce the said notice as follows:-
“WHEREAS the Government of West Bengal in the then Metropolitan Development Department, presently known as Urban Development Deptt. offered M/s Everest Pharmaceutics (P) Ltd. represented by its Director the grant of lease of plot measuring 5 cottahs more or less in Sector-V, Bidhannagar of 999 years for the purpose of manufacturing of pharmaceutical products vide Order no.386-SL(AL)9L-7/85 dated 15.02.1985 and the allottee was asked to produce certain documents within 60 (sixty)days in connection with implementation of the proposed project.
AND WHEREAS the allottee paid the full salami and other government dues but failed to produce certain documents necessary in connection with implementation of the proposed project despite being sought for vide offer of allotment being No.386-SL(AL)9L-7/85 dated 15.02.1985 and repeatedly asked vide letters No.58- MD/SL(AL)/9L-6/85 Dated 22.01.1991, No.116-SL(AL)91-6/85 Dated 20.02.1991, No.1390-MD/SLAL9L-6/85 Dated 23.04.1991. No.2729-UD/SL(WR)/9L-6/85 Dated 07.08.1991, No.624- UD/SL(AL)/9L-6/85 Dated 19.02.1992, No. 1593-UD/SL(AL)9L- 6/85 Dated 25.05.1994 & No.3464-UD/SL(ALY9L-6/85 Dated 14.10.1994.
AND WHEREAS the said allottee was again asked to furnish certain documents vide No.116662(2)-UD/SL(AL)9L-6/85 Dated 28.02.2006 within 60 days from the date of issue of the same and another 60 days existed after time was also allowed to him vide No.2066-UD/SL(WR)/9L-6/85 dated 28.06.2007 and at the separation of the said stipulated period of time the said allottee was again asked to comply with the department’s aforesaid letters vide No.4297- UD/SL(AL/9L-6/85 and No.308-UD/SL(WR)/9L-6/85 29.01.2007 & no.995-UD/SL(WR)-6/85 dated 21.03.2007. dated AND WHEREAS the aforesaid allottee has failed to produce the requisite papers as asked for.
NOW, THEREFORE, by order of the government the undersigned is directed to say that the governor has been pleased to cancel the above mentioned offer of allotment bearing No.386-SL(AL)/9L-7/85 dated 15.02.1985 made in favour of M/s Everest Pharmaceutics (P) Ltd. in respect of Plot No.38, Block-EN, Sector-V, Bidhannagar in terms of Clause (15) of the said offer of allotment.
The deposit of salami arrears made by the Director of M/s Everest Pharmaceutics (P) Ltd. in respect of aforesaid plot of land will be refunded after deducting administrative charges as applicable in terms of Clause (12) of the said offer of allotment on receipt of such claim of refund from the allottee in due course.
By order of Governor
Sd/-
OSD & Exofficio Deputy Secretary to the Government of West Bengal
No.3442/1(4)-UD/SL/(WR)/9L-6/85 dated 01 Oct, 2007
Copy forwarded for information and taking necessary action to:
The Special Engineer SLR & DC, SEch.Bhawan Kolkata -91
2. The Executive Engineer (Design), SLR & DC, Sech.Bhawan
Kolkata -91
3. The Administrator, Bidhannagar
4.The Chairman, Nabanagar Industrial Township Authority, Unnayan Bhawan.
Sd/-
OSD & Exofficio Deputy Secretary to the Government of West Bengal”
18. On perusal of the aforesaid notice it is evident that in year 1985 land measuring 5 cottahs more or less in Sector-V, Bidhannagar was offered/allotted to the appellant company on lease for 999 years and the appellant/allottee was asked to produce certain documents. However, since those documents were not provided, by the said notice dated 1st October, 2007 the earlier allotment was cancelled and appellant company was intimated regarding refund of the deposit of salami after deducting administrative charges. However, it is difficult to perceive as to how on 3rd April, 2019 a lease agreement was entered in between the Governor of State of West Bengal and M/s Everest Pharmaceutics (P) Ltd that too for 999 years on consideration of the premium or salami of Rs.20053.32 (Rupees Twenty thousand fifty three and paise thirty two only). We are in agreement with the submission of learned counsel for ROC that since the appellant company was already struck off in the year 2008 there was no reason for executing such agreement on behalf of Governor of West Bengal with the appellant company.
19. Before the NCLT the reason for delay in filing appeal under Section 252 was explained as if Mr. Tapan Dhar, one of the directors was seriously ill and in support of his ailment medical reports have been brought on record which are at running page 285 to 303. Page 285 is report on examination of blood in respect of patient Tapan Dhar. Report date is mentioned as 21.02.2017 and last report is dated 5.6.2019. Of course number of reports have been brought on record but none of the report is prior to 21.02.2017 and as such plea of appellant that due to ailment of Mr. Tapan Dhar, delay occurred and returns and statement were not filed before the ROC is required to be noticed only for its outright rejection. Accordingly such report cannot be entertained.
20. Accordingly while dismissing the present appeal and approving the order impugned dated 25.02.2020, passed by the NCLT, we are of the opinion that considering the fact that certain documents particularly Auditors report etc. have been brought on record in the present judicial proceeding which prima facie creates serious doubts regarding its genuineness in the mind of the Court it would not be appropriate to simply shut our eyes on such issues. We are noticing that in number of court proceedings the parties are coming with fabricated documents. Now it is high time to take serious note of such thing. It appears that since we are ignoring those issues, approaching the court with such fabricated document has now become rampant. Accordingly with a view to uphold the majesty of law it is desirable to direct for conducting a detailed enquiry/investigation to ascertain veracity of aforesaid documents which have been brought on record in the present appeal particularly directors report/auditors reports/Balance sheets. Besides brining on record aforesaid doubtful documents in the present appeal the appellant has made an incorrect statement in para 7.5 wherein it has been indicated as if the appellant company was struck off in the year 2012 whereas the company was already struck off long back in the year 2008. In such view of the matter it is desirable to request the Secretary, Ministry of Corporate Affairs, Govt of India to get the matter enquired/investigated by an appropriate authority/agency for its logical end.
21. Besides asking for enquiry/investigation we are of the opinion that after noticing two documents i.e. Notice dated 1.10.2007 issued by Government of West Bengal, Urban Development Department, Nagarayan, DF-8, Sector-I, Salt Lake City, Kolkata to Mr. Tapan Dhar, director of the appellant company whereby earlier proposed allotment which was issued on 15.2.1985 was cancelled, under what circumstances the lease agreement was executed in favour of the appellant company on 23.4.2009 while the name of the appellant company was already struck off from the register of ROC.
22. Let a copy of this order be sent to the Chief Secretary to the Government of West Bengal, for its needful.
23. Let a copy of this order be also sent to the Secretary, Ministry of Corporate Affairs, Govt of India, for its compliance.
24. The Learned Registrar of this Tribunal is directed to provide one set of the present Memo of Appeal with enclosures to the Secretary, Ministry of Corporate Affairs, Govt of India, New Delhi.
25. With above observation the appeal stands dismissed.
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