The applicant has taken out present application seeking below mentioned relief/direction:-
"7.A. To condone the delay of 81 days in filing the certified copy of the order dated 31/01/2011 in E-Form No.21 and extend the date of filing the same up to and inclusive of 4/6/2011."
1.1 The applicant of present application is the petitioner in Company Petition No.106 of 2010. The said petition has been disposed of under order dated 31.1.2011.
1.2 After the said petition came to be disposed of, the applicant - original petitioner was required to file E-Form No.21 with the Registrar of Companies ["ROC" for short] within prescribed time. The applicant failed to fulfill its obligation. When the applicant tried to present the said Form, it was delayed and that therefore, the ROC did not accept the said Form. Hence, the applicant has taken out present application seeking appropriate direction so that the Form may be accepted by the ROC and the statutory requirement can be complied with.
2. So as to consider the request of the applicant, it is necessary to take into account certain relevant dates, which are mentioned below:-
Sr.No.
Dates.
Particulars.
1. 31.1.2011 Company Petition No.106/2010 was disposed of by order dated 31.1.2011.
2. 15.3.2011 Last date for filing E-Form No.21.
3. 19.5.2011 The applicant applied for certified copy of the order dated 31.1.2011.
4. 1.6.2011 Office issued certified copy of the order dated 31.1.2011.
5. 4.6.2011 Instead of filing E-Form No.21 on or before 15.3.2011, the applicant tendered the said Form today.
2.1 Thus, the applicant has caused delay in submitting the said Form from 15.3.2011 until 3.6.2011, i.e. in all for 81 days.
3. It is noticed from the record that the applicant caused initial delay in applying for certified copy of the order inasmuch as the order was passed on 31.1.2011, the application for certified copy was made as late as on 19.5.2011, i.e. after about 4 months. In the application and/or during hearing of present application, the applicant or the learned advocate for the applicant could not tender satisfactory explanation as to the delay caused at the initial stage. So far as further delay is concerned, the applicant has tried to explain the cause for the said delay by mentioning details in para-2 to 4 and 6 of the application, which read thus:-
"2. This Hon'ble Court was pleased to pass order on 31/01/2011 sanctioning the scheme of amalgamation. The Applicant company was required to file the certified copy of the said order with the Registrar of Company, Gujarat and therefore the applicant company applied for the certified copy of the order on 19/05/2011 which was delivered on 1/6/2011 by the registry of this Hon'ble Court.
3. The Applicant company filed the certified copy of the said Form No.21 with the Registrar of Companies, Gujarat on line on 4/6/2011 under SRN 13538657. The copy of the Form No.21 is annexed hereto and marked as ANNEXURE-A to this Application.
4. The Applicant Company submits that it was under the bonafide impression that the period for filing the certified copy of the order passed under section 391/394 of the Companies Act, 1956 is 30 days from the date of receipt of the certified copy of the order by the applicant.
6. The applicant submits that the delay caused in filing in E-Form No.21 is unintentional and taken place due to bonafide impression as explained hereinabove and therefore the applicant is requesting for condonation of delay in filing the said Form. The Applicant submits that there is good and sufficient reason to condone the delay."
4. Heard Mr. Shah, learned advocate for the applicant, and Mr. Vaghela, learned Standing Counsel for the ROC.
5. Mr.
Shah, learned advocate for the applicant, has reiterated the details mentioned in the application and submitted that the delay was not intentional and due to certain bonafide mistake and impression on the part of the applicant, timely action could not be taken.
5.1 Mr.
Vaghela has submitted that from the details mentioned in the application it clearly transpires that the applicant did not take steps to even apply for certified copy of the order for almost more than 3 months. He submitted that the said delay and its cause are not explained and that therefore, the request of the applicant may not be granted. He further submitted that in view of the extent of delay and in view of absence of any power with the ROC, the said Form could not be accepted by the ROC after expiry of the specified time limit.
6. Having regard to the details mentioned by the applicant and considering the submissions made by learned counsel for both the sides, it appears that the delay has occurred due to bonafide mistake and the delay is not attributable to any deliberate intention or sheer negligence. Under the circumstances, it appears that interest of both the parties can be served if request of the applicant is considered on appropriate condition. It is noticed from the statutory provisions and the request and the submissions made by learned counsel for both the parties that the provision regarding time limit if extended, will not cause any undue prejudice or hardship to the ROC or any other party including the members of the transferor or transferee company or the secured creditors. When any adverse effect is not going to be caused to any of the parties concerned in present proceedings, then in that event, the request of the applicant does not appear unjustified. Therefore, following order/direction is passed.
6.1 The applicant - original petitioner shall pay Rs.5,000/- towards costs to the office of ROC and shall also bear the expenses of professional fees which the ROC is required to incur to attend the proceedings of present application.
6.2 On condition of payment of the aforesaid amount, the delay caused by the applicant shall stand condoned and the date for filing E-Form No.21 is extended until 4.6.2011 and the ROC is directed to receive and accept the said Form and take necessary actions thereon, in accordance with the provisions of the Act.
With the aforesaid observations and directions, present application is allowed and stands disposed of accordingly.
(K.M.Thaker, J.) kdc Top