1. This is an application filed under Section 18(4) of the Companies Act, 1956 by Ishita Properties Ltd. (the company) seeking extension of time for the filing of a certified copy of the order dated 16-5-2001 of the Company Law Board (CLB) with the Registrar of Companies, National Capital Territory of Delhi and Haryana for registration of the alteration of the provisions of memorandum of association of the company relating to change of the place of its registered office. The application came up for hearing from time to time and finally on 10-7-2002.
2. The facts in brief are that the company incorporated as a private company limited by shares in the State of Karnataka in the year 1994 later became deemed public company. When the company decided to shift its registered office from the State of Karnataka to the National Capital Territory of Delhi, passed accordingly a special resolution in accordance with Section 189 at its extraordinary general body meeting held on 8-1-1999, which was confirmed by the CLB in CP No.431/17/SRB/1999 on 16-5-2001. Thereafter, the company filed Form No. 21 together with certified copy of the order of the CLB with the Registrar of Companies, Karnataka, Bangalore on 25-5-2001 in accordance with the provisions of Section 18 upon which the ROC, Karnataka, Bangalore issued on 23-7-2001 certificate of registration of the order of the CLB confirming the transfer of the registered office from the State of Karnataka to the NCT of Delhi. However, Form No. 21 together with copy of the order dated 16-5-2001 of the CLB certified by a director of the company and certificate of registration issued by the ROC, Karnataka, Bangalore was filed by the company with the ROC, NCT of Delhi and Haryana on 5-9-2001. The ROC, NCT of Delhi and Haryana returned the documents for not filing a duly certified copy of the order of the CLB.By the time when the company obtained certified copy of the order afresh and filed the same with the ROC, NCTD & Haryana on 3-10-2001 there was a delay of 1 month and 18 days. Hence, this application.
3. The ROC, NCTD & Haryana by his report dated 26-6-2002 reported that the company filed Form No. 21 along with copy of the order issued by the CLB on 3-10-2001 after a delay of 1 month and 18 days and further that the application may be considered on merits.
4. At the time of hearing Shri. R. Thirunavukarasu, the counsel for the company while reiterating the averments made in the application submitted that the company ought to have filed a certified copy of the order dated 16-5-2001 of the CLB with the Registrar of Companies, NCT of Delhi and Haryana within three months from the date of order of the CLB in compliance with the provisions of Section 18. While the company could comply with this requirement in relation to the ROC, Karnataka, it failed to file certified copy of the order with the ROC, NCT of Delhi and Haryana, within the stipulated time. There was a delay of 1 month and 18 days. He urged that the delay was neither wilful nor wanton and that it happened inadvertently. Shri R. Thirunavukarasu pointed out that the CLB has been given the power under Sub-section (4) of Section 18 to extend the time for the filing of documents by such period as it thinks fit, in support of which he relied upon the decision in Webfil Ltd. In re. [1990] 4 CLA 264. He, thereafter, prayed that the delay may be condoned and necessary order be issued.
5. I have considered the contents of the application, the affidavit filed in support thereof, submissions made by Shri R. Thirunavukarasu, the counsel for the petitioner and also submissions of the ROC, NCTD & Haryana contained in his report dated 26-6-2002.
6. On considering the averments made in the application as well as submissions of the counsel for the company, the issue that arises for my consideration is whether the CLB is empowered under Section 18(4) to extend the time up to 3-10-2001 for the filing of a certified copy of the order of the CLB dated 16-5-2001 by the company with the Registrar of Companies, NCT of Delhi and Haryana.
7. Section 18(1) provides, inter alia that a company shall file with the Registrar a certified copy of order of the CLB confirming transfer of the registered office from one State to another within three months from the date of order together with a printed copy of the memorandum as altered and the Registrar shall register the same and certify the registration within one month from the date of filing of such documents. According to Sub-section (2), the certificate so issued by the Registrar shall be conclusive evidence that all the requirements of the Act with respect to the confirmation thereof have been complied with, and thenceforth the memorandum so altered shall be the memorandum of the company. Sub-section (3) provides that where the alteration involves a transfer of the registered office from one State to another, a certified copy of the order confirming the alteration should be filed by the company with the Registrar of each of the States and both the Registrars shall register the same and shall certify the registration thereof and the Registrar of the State from which such office is transferred shall send to the Registrar of the other State all documents relating to the company registered, recorded or filed in his office. Admittedly, in the present case, the company has filed certified copy of the order of the CLB with the Registrar of Companies, Karnataka, Bangalore on 25-5-2001 in compliance with Section 18(1)(&) and the ROC, Karnataka, Bangalore has issued on 23-7-2001 certificate of registration of the order of the CLB confirming the transfer of the registered office from the State of Karnataka to NCT of Delhi. However, the company has not filed certified copy of the order of the CLB with the ROC, NCT of Delhi and Haryana within three months from the date of order of the CLB. Sub-section (4) empowers the CLB to extend the time for the filing of documents, provided that the company moves the CLB to extend the time within the period specified by Section 18(1)(b), failure of which attracts the provisions of Sub-section (2) of Section 19. According to Section 19(2), if the documents required to be filed with the Registrar under Section 18 are not filed within the time allowed under that section or where application for extension is made and granted, within the extended time so granted by the CLB, then the proceedings connected therewith become void. If even after the proceedings become void, application is made before the CLB, within one month from the date of its becoming void, showing sufficient cause, it may be revived. In the instant case, the CLB made the order on 16-5-2001 confirming the transfer of the registered office from the State of Karnataka to the NCT of Delhi, in which case the order of the CLB, which was required to be filed before the Registrar of Companies, NCT of Delhi and Haryana on or before 16-8-2001 was filed by the company only on 3-10-2001 after a delay of one month and 18 days. In the normal course, the proceedings connected with the order dated 16-5-2001 of the CLB would have become void and inoperative on the expiry of one month from expiry of the period of three months mentioned in Section 18. However, in the present case, the company is faced with a piquant situation. While the company could file certified copy of the order of the CLB with the Registrar of Companies, Karnataka within three months of the order of the CLB, it failed to do so with the Registrar of Companies, NCT of Delhi and Haryana. The ROC, Karnataka also certified that a certified copy of the order of the CLB has been registered and accordingly issued certificate of registration of the order of the CLB confirming transfer of the registered office from the State of Karnataka to NCT of Delhi, thereby, in my view, the Statute is substantially complied with. The situation would have been different had the company failed to file certified copy of the order of the CLB with the ROC, Karnataka also within the stipulated time. Against this background and going by true spirit of the relevant provisions of the Act, mere failure to file a certified copy of the order of the CLB with the Registrar of Companies to whose State the registered office is so shifted, cannot vitiate the proceedings connected with the order dated 16-5-2001 of the CLB.8. In the aforesaid premises, I am inclined to condone the delay in filing of the order dated 16-5-2001 of the CLB by the company and direct the Registrar, NCT of Delhi and Haryana to register the said order, subject to compliance with all the formalities of registration.