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TMI Blog2023 (3) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2013, has been filed by the Appellant being aggrieved and dissatisfied by the order dated 01.03.2021 passed by the National Company Law Tribunal (Cuttack Bench, Cuttack) in CP (Appeal) No. 255/CB/2020 whereby and whereunder appeal filed by the Appellant for restoration of the name of the Company in the Register maintained by the Registrar of Companies (RoC), NCT of Delhi and Haryana was dismissed by the Tribunal. 2. The facts giving rise to this Appeal are as follows: i) The company, M/s. Smile Energy Private Limited, was incorporated under the Companies Act, 1956, on 24.11.2007. The main object of the company are to carrying in the business to generate, receive, produce, improve, by, sell, acquire, use, transit, accumulate, employ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sanction. Further, on 15.05.2017 the Company issued letter to the Executive Engineer, Electricity Department, Nuapada District, Odisha, requesting him to provide the exact coordinates of the substation at Khariar so that the company may conduct a survey and plan the power evacuation from the proposed Small Hydro Electric Project (SHEP) to the sub-station. Thereafter, on 19.06.2017, seeking allotment of land to the extent of 10.3 Acres for various components of the project. iv) On 08.10.2017, the company issued letter to the Chief General Manager (P) GRIDCO, Janpath, Bhubaneswar seeking to enter into a Power Purchase Agreement in respect of the Small Hydro Electric Project being constructed by the Company. On 17.10.2017, the company is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 Balance Sheets, as well as the Director's Report. The company reported a loss of Rs. 8,870/- for the Financial Year ending on 31.03.2019. vii) The Registrar of Companies issued Gazette Notification dated 24.10.2019 striking off the Company from the Register of Companies as per Section 248(5) of the Companies Act, 2013. The Appellant herein checked the website of the Ministry of Corporate Affairs Portal for filing of certain statutory documents and learnt that the status of the Company was 'Strike Off'. The Company is still a going concern and has been consistently maintaining audited financial statements, meeting all the statutory requirements. The Engineer-in-Chief, Government of Odisha issued letter dated 03.01.2020 to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government. 4. It is further submitted that Section 248(1) of the Companies Act, 2013, enjoins the Registrar of Companies to serve notices on all of the Directors of the company. This has not been complied with. This Tribunal has repeatedly held that when notices are not served on the Directors of the company which is sought to be struck off, the striking off must be set aside, held in the case of "Calcutta Rubber Factory v. Registrar of Companies, (2019 SCC Online NCLAT 851)". The Company issued letters form 2007 till the date of striking off, in order to be able to conduct the business that the company was incorporated for. The mere lack of income or lack of profits cannot mean that the company is a shell company. The finding of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents providing that the company had been conducting business. The finding of the NCLT that the company is merely a shell company is ex facie erroneous, as the company has been awaiting allotment of land for the construction of the project awarded to it by the Government of Odisha. The company repeatedly renewed Bank Guarantees for the project awarded to it, as has a long-term loan of Rs. 29,96,000/-. Therefore, the company's assets and liabilities are also required to be analysed by the NCLT, which had not been done before. Therefore, the order of the NCLT ought to be set aside by this Tribunal. 7. On the other hand, the Ld. Counsel for the Respondent/Registrar of Companies during the course of argument and his Reply Affidavit su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company in Form No. STK-5/5A. The said notice is issued as public notice not only to the company and the directors of the company but also to all stakeholders concerned so as to receive their objections, if any, to the said intention of the Registrar to remove the name of the company from the Register. Finally, after the expiry of the time mentioned in the said notice, the name of the company was struck off from the Register maintained by the Respondent and the name of the company was published in Form STK-7 in the Official Gazette dated 22.07.2017 and on the publication of such notice in the official Gazette the company stood dissolved on and from 24.10.2019. Further, the instant appeal is liable to be dismissed with costs because the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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