1. By way of this Judge's summons, the applicant has prayed for condonation of delay of 58 days for filing the order on petition of the Companies Act, 1956 (hereinafter referred to as "the Act") pursuant to judgment and order dated 19.9.2011, whereby this Court (Coram: K.M. Thaker, J.) has sanctioned the Scheme of Amalgamation of Jekson Enterprises Pvt. Ltd. with Diamond Textile Mills Pvt. Ltd. with the Registrar of Companies, Gujarat State, Ahmedabad and further prayed to extend the period for filing the same with the Registrar of Companies, Gujarat State, Ahmedabad from the date of filing of the present application.
2. In response to the notice issued by this Court, the Registrar of Companies has appeared through Mr. Y.V. Waghela, learned Central Government Counsel and also filed a reply.
3. Mrs.
S.N. Pahwa, learned advocate for the applicant submitted that for filing Form No.21 through the online system, the applicant bonafidely believed that the form is duly accepted. It is further submitted that upon visiting the website of the Ministry of Corporate Affairs recently, the applicant learnt that though the form in respect of Jekson Enterprise Ltd. has been duly accepted, Form No.21 in respect of the applicant Company is not accepted. It is submitted that non-filing of the certified copy of the order was neither intentional nor willful. It is submitted that in fact the Transferor Company i.e. Jekson Enterprises Pvt. Ltd. has already filed a certified copy of the order on petition as required under the law with the Registrar of Companies, Gujarat State, Ahmedabad. It is submitted that this Court has power to exercise discretion as provided under Rule 9 of the Company Court Rules, 1959. It is submitted that no parties are likely to be adversely affected if the delay is condoned and that the applicant Company is ready and willing to pay penalty as provided under Section 394 of the Act on non-compliance of aforesaid provision.
4. Mr.
Y.V. Vaghela, learned Central Government Counsel submitted that the order for sanctioning the scheme of amalgamation was passed on 19.9.2011 and the due date by which the order was to be filed with Registrar of Companies is 14.12.2011 whereas the order is uploaded on 9.2.2012 and thus there is considerable delay in filling the said form. Mr. Vaghela further submitted that in fact the applicant has not properly explained the delay in the present application and therefore, the applicant has to pay the penalty as per the provisions of the Act.
5. Having considered the submissions made by both the learned advocates appearing for the parties and considering the facts and circumstances of the case and the explanation rendered by the applicant that non-filing of the certified copy of the order as envisaged under Section 394(3) of the Act was unintentional and was result of inadvertence on the part of the applicant, the same deserves consideration. Considering the fact that the Transferor Company has filed certified copy of the order and on facts as can be carved out from the application, the same was unintentional and without any ill-motive on the part of the applicant Company.
6. Hence, it is ordered that the applicant Company be permitted to file certified copy of the judgment and order dated 19.9.2011 passed in Company Petition No.46 of 2011 and allied matters before the Registrar of Companies on condition that the applicant deposits the amount of penalty charged by the Registrar of Companies as prescribed under the statute.
7. With the aforesaid observations and direction, this application is allowed in the aforesaid terms.
[R.M.CHHAYA, J.] mrpandya Top