Chakkunath Gopi vs Registrar Of Companies
2021 Latest Caselaw 10076 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                       WP(C).No.4196 OF 2021(Y)


PETITIONER:

               CHAKKUNATH GOPI
               S/O.RAMAN CHAKKUNATH, VENGANELLUR, VENGANELLUR POST,
               CHELAKKARA, THRISSUR, KERALA, INDIA - 680 586.

               BY ADVS.
               SRI.G.HARIKUMAR (GOPINATHAN NAIR)
               SHRI.AKHIL SURESH

RESPONDENTS:

      1        REGISTRAR OF COMPANIES
               COMPANY LAW BHAVAN, BMC ROAD, THRIKKKARA P.O.,
               KAKKANAD, KOCHI, KERALA - 682 021.

      2        THE NATIONAL COMPANY LAW TRIBUNAL
               COMPANY LAW BHAVAN, BMC ROAD, THRIKKAKARA P.O.,
               KAKKANAD, KOCHI, KERALA - 682 021.

               R1 BY SRI.T.V.VINU, CGC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4196 OF 2021(Y)

                                         2




                                   JUDGMENT

Dated this the 25th day of March 2021

This writ petition is filed claiming the

benefit of Ext.P4(b) scheme introduced by the

Government of India on 15.01.2021. The company

in which the petitioner is a share holder cum

director, was struck off under Section 248(1) of

the Companies Act on 16.06.2017. Petitioner

submitted an application Under Section 252 of the

Companies Act before the NCLT on 27.11.2020. It

is stated that, certain defects were noticed in

that application on 02.12.2020. Petitioner

claims that thereafter, when e-filing was

commenced under the 2nd respondent, the petitioner

submitted it's application online. The Registrar

of Companies had filed Ext.P7 report in it on

17.12.2020. It is stated that the case was listed

on 05.01.2021. NCLT passed Ext.P10 order on it on

12.01.2021, directing to restore the original

status of the Company and to take all WP(C).No.4196 OF 2021(Y)

consequential action. It is stated that the NCLT

did not consider the prayer for allowing the

petitioner to avail the benefit of Fresh Start

Scheme 2020.

2. In this writ petition, the claim of the

petitioner is that since he had submitted

application on 27.11.2020, the benefit of

Ext.P4((b) scheme should be extended to the

petitioner, though final orders were issued only

thereafter. Ext.P4(b) scheme was introduced by

the Central Government in exercise of its powers

conferred under Section 460 read with Section

403 of the Companies Act for the purpose of

condoning the delay in filing forms with the

Registrar, in so far as it relates to charging of

additional fees on account of delay in such

filings. The scheme was available only till

31.03.2021, for the Companies which were ordered

to be restored between 01.12.2020 and 31.12.2020.

3. Adv.Sri.T.V.Vinu, the learned CGC has

filed a statement on behalf of the 1st respondent. WP(C).No.4196 OF 2021(Y)

It is stated that Ext.P4(b) scheme -'Scheme for

Condonation of Delay for Companies Restored on

the Registrar of Companies between 01.12.2020 and

31.12.2020 under Section 252 of Companies Act

2013' was introduced on 15.01.2021 and it was

applicable only to the companies in respect of

which the appeal filed under Section 252 of the

Companies Act before the respective NCLT Bench

for restoration of the name of the company was

disposed of between 01.12.2020 to 31.12.2020,

with an order for restoration of the company. It

is stated that the appeal filed by the petitioner

was disposed of only on 12.01.2021. Therefore the

petitioner's company is not eligible for the

benefit of Ext.P4(b) Scheme. It is stated that,

the Companies Fresh Start Scheme, 2020 was in

force only for the period up to 31.12.2020. The

learned CGC also points out that, even Ext.P4(b)

was introduced only on 15.01.2021, much after the

petitioner approached the 2nd respondent with his

appeal. In other words, a scheme as mentioned in WP(C).No.4196 OF 2021(Y)

Ext.P4(b) was not available at the time when the

petitioner approached the NCLT.

4. Having heard the learned Counsel on both

sides, it is necessary to have a look at the

relevant provisions in Ext.P4(b) scheme, of

which Clause 5 reads as follows;

"5. The details of the Scheme are as under:-

(i) The Scheme shall come in to effect from 01 February 2021.

(ii) Applicability: The Scheme shall be applicable in respect of companies in respect of whom the appeal filed under section 252 of the Act with the respective NCLT Bench for the restoration of the name of the company was disposed of between 01.12.2020 to 31.12.2020, with an order for restoration of the company.

(iii) Duration of the Scheme: The last date for filing of any overdue e-forms by such companies under the scheme shall be 31.03.2021.

(iv) xxx"

5. The contention of the petitioner that

the company is entitled to avail the benefit of

Ext.P4(b) scheme, since the appeal was filed

before the stipulated date, cannot be accepted in

view of the provisions contained in the scheme

itself which came into force only on or after

15.01.2021. The applicability of the scheme is WP(C).No.4196 OF 2021(Y)

confined to only those companies, for which

restoration was ordered between 01.12.2020 and

31.12.2020. There is nothing in Ext.P4(b) which

provides that, mere filing of an appeal would

enable the companies to avail the benefit of the

scheme, even if the appeal irrespective of the

date of disposal of the appeal directing

restoration.

6. Therefore, I do not find any merit in

the claim of the petitioner. At any rate, it is

made clear that it would be open to the

petitioner to move the Central Government for

appropriate relief.

The writ petition is accordingly dismissed.

Sd/-

P.V.ASHA JUDGE DM WP(C).No.4196 OF 2021(Y)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION.

EXHIBIT P2 TRUE COPY OF MEMORANDUM OF ASSOCIATION.

EXHIBIT P3 TRUE COPY OF ARTICLES OF ASSOCIATION.

EXHIBIT P4(A) TRUE COPY OF THE FRESH START SCHEME DATED 30/03/2020.

EXHIBIT P4(B) TRUE COPY OF THE SCHEME FOR CONDONATION OF DELAY FOR COMPANIES RESTORED ON REGISTER OF COMPANIES DATED 15/01/2021.

EXHIBIT P5 TRUE COPY OF THE DEFECT COMMUNICATION DATED 2/12/2020.

EXHIBIT P6(A) TRUE COPY OF MEDICAL CERTIFICATE OF THE PETITIONER DATED 05/11/2020.

EXHIBIT P6(B) TRUE COPY OF MEDICAL CERTIFICATE OF THE PETITIONER DATED 02/01/2021.

     EXHIBIT P7            TRUE COPY      OF     THE REPORT     OF     THE
                           REGISTRAR       OF       COMPANIES        DATED
                           17/12/2020.

     EXHIBIT P8            TRUE COPY OF NOTICE ON OPENING THE E-

FILING PORTAL DATED 09/12/2020.

EXHIBIT P9 TRUE COPY OF THE CAUSE-LIST UPLOADED BY THE SECOND RESPONDENT IN THEIR WEBSITE DATED 05/01/2021.

EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 12/01/2021.

RESPONDENTS EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE