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TMI Blog2023 (5) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ull opportunity to explain. On examination of the table in para No.7 of the reply, it is evident that the Colum No.1 i.e. Revenue from operation and Column No.4, GST Details, have been shown as blank. Meaning thereby that neither any GST was paid nor revenue from operation was collected. These facts are enough to draw an inference that the company was non-operational nor doing any business. Besides this there is admission of the appellant before NCLT that in the management of the company there was deadlock due to litigation and disputes amongst the directors. On examination of the provision of section 250 of Companies Act, it goes without saying that even a company whose name has been struck off, is competent to realise claim/claims and similarly his liability can also be realised by others. It is evident that while considering the case of Indian Explosives Ltd [ 2010 (4) TMI 1185 - DELHI HIGH COURT] in the year 2010 there was no occasion for the Hon ble High Court to examine the Section 250 of the Companies Act, 2013. Moreover, if a specific procedure has been provided under Section 248 of the Act for taking a decision in special exigency for striking off the name of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company for incorporation of the company the objects were divided in parts i.e. A, B C. Those objects are reproduced hereinbelow:- (A) THE MAIN OBJECTS TO BE PURSUED BY THE COMPANY ON ITS INCORPORATION ARE: 1. To engage in Real Estate Promoters, Developers Project Management Association including civa, mechanical, electrical, and all other types erection, commissioning projects, project trading as well as consultant for execution of projects on turkey basis for equipments of Industrial, domestic and other purposes. 2. To carry on the business as builders, consultants, civil engineers, architects, surveyors, designers, town planners, estimators, Interior and exterior decorators, general and government civil contractors of Immovable properties, all types of structural and pilling engineering work,Interior designing, land scaping and graphic. 3. To buy, exchange purchase, or otherwise acquire and Interest in any Immovable property such as houses, building, market, cinema halls, multiplexes, shopping malls, shops, townships, housing projects, Industrial sheds lands within or outside the limits of municipal corporation or such other local bodies and to provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary of convenient for carrying on the main business of the Company. 4. To vest any movable or immovable property, rights or interests required by or received or belonging to the Company in any person or company on behalf of or for the benefit of the Company and with or without any declared trust in favour of the Company. 5. To purchase or otherwise acquire, build, carry out, equip, maintain, alter, Improve, develop, manage, work, control and superintend any plants, warehouse, sheds, offices, shops, stores, buildings, machinery, apparatus, labour lines, and houses, warehouses, and such other works and conveniences necessary for carrying on the main business of the Company. 6. To undertake or promote scientific research relating to the main business or class of business of the Company. 7. To acquire and takeover the whole or any part of the business, goodwill, trade- marks properties and liabilities of any person or persons, firm, companies or undertakings either existing or new, engaged in or carrying on or proposing to carry on business this Company is authorised to carry on, possession of any property or rights suitable for the purpose of the Company and to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such purpose which may seem expedient and to oppose any proceedings or applications which may seem expedient or calculated directly or indirectly to prejudice the interest of the Company. 13. To enter into any arrangements with any Government or Authorities or any persons or companies that may seem conducive to the main objects of the Company or any of them and to obtain from any such Goverment, authority, person or company any rights, charters, contracts, licences and concessions which the Company may think desirable to obtain and to carry out, exercise and comply therewith. 14. To procure the Company to be registered or recognised in or under the laws of any place outside India and to do all act necessary for carrying on in any foreign country for the business or profession of the Company. 15. To draw, make, accept, discount, execute and issue bills of exchange, promissory notes bills of lading, warrants, debentures and such other negotiable or transferable instruments, of all types or securities and to open Bank Accounts of any type and to operate the same in the ordinary course of the Company. 16. To advance money either with or without security, and to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. 22. To distribute as dividend or bonus among the member or to place to reserve or otherwise to apply, as the Company may, from time to time, determine any money received by way of premium on debentures issued at a premium by the Company and any money received in respect of forfeited shares, money arising from the sale by the Company of forfeited shares subject to the provisions of Sec. 78 of the Companies Act. 1956. 23. To employ agents or experts to investigate and examine into the conditions, prospects value, character and circumstances of any business concerns and undertakings and generally of any assets properties or rights which the Company purpose to acquire. 24. To accept gifts, bequests, devisers or donations of any movable or immovable property or any right or interests therein from members or others. 25. To create any reserve fund, sinking fund, insurance fund or any other such special funds whether for depreciation, repairing, improving, research, extending or maintaining any of the properties of the Company or for any other such purpose conducive to the interest of the Company. 26. Subject to the provisions of Section 292, 293, 293-A 293-8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any company promoted by the Company and also all costs, charges, duties, Impositions and expanses of and Incidental to the acquisition by the Company of any property or assets. 31. To send out to foreign countries, its director, employees or any other person or persons for investigation possibilities of main business or trade procuring and buying any machinery or establishing trade and business connections or for promoting the interests of the Company and to pay all expenses incurred in the connection. 32. To compensate for loss of office of any Managing Director or Directors or other officers of the Company within the limitations prescribed under the Companies Act, 1956 or such other statute or rule having the force of law and to make payments to any person whose office of employment or duties may be determined by virtue of any transaction in which the Company is engaged. 33. To agree to refer to arbitration any dispute, present or future between the Company and any other company, firm, individual or any other body and to submit the same to arbitration in India or abroad either in accordance with indian or any foreign system of law. 34. To appoint agents, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, rallway and transport companies or any such person. 8. To carry on the business of cold storage of fruits, vegetable seeds, fish, meat, agricultural products, milk, dairy products and such other perishable items of all types. 9. To carry on the business of production, distribution or exhibition of films and motion pictures and the running of theatres, cinemas, studios and cinematographic shows and exhibitions. 10. To trade, deal in and undertake manufacturing, of bricks, tiles, pipes, cement lime and building construction requisites and to carry on all or any of the business of builders, contractors, architects, decorators, furnishers and to acquire, hold. mortgage lease, take on lease, exchange or otherwise deal in lands, buildings. house, flats, bungalows, shops, here-dita-ments of any tenure or freehold for residential or businesses purposes. 11. To cultivate, grow, produce or deal in any agricultural, vegetable or fruit products and to carry on all or any of the businesses of farmers, dairyman, milk contractors. dairy farmers, millers, purveyors and vendors of milk and milk products, condensed milk and powdered milk, cream, cheese, butter, poultry, fruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , aeroplanes, aeroengines flying boats, hydroplanes, and aircrafts and aerial conveyances of every description and kind for transport or conveyance of passengers, merchandise or goods of description, whether propelled or moved or assisted by means of petrol, spirit, electricity, steam, oil vapour, gas, petroleum, mechanical, animal or any other such motive power of all types. 18. To carry on the business manufacturing, dying, colouring, spinning, weaving, buying selling, Importing, exporting or otherwise dealing in all fabrics and other fibrous substances and preparations and manufacturers of and dealers in cotton, silk, woollen linen, hemp Jute, rayon nylon, artificial silk and such other yarn and all kinds of woven synthetic blended textiles manufactured from such yarn. 19. To carry on the business manufacturers of and dealers in industrial machinery, bearings, speed reduction units, pumps, machine tools, agricutural machinery and earth-moving machinery including road rollers, bull-dozers, dumpers, scrapers loaders shovels and drag lines and light engineering, goods such as cycle and sewing machines. 20. To carry on the business of manufacturers of or dealers in fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pork-pipes sausages, pickles spices, sauces, jams, jelly, custard, prawn, potted meats, macaroni, spaghetti table delicacies, bread, biscuit, wine biscuits and such other forinaceous goods and products cocca, confectionery, cakes and buns. 29. To carry on the traders and business of meal manufacturers, dealers in consumable stores and provisions of all kinds foods stuffs, grains flour, seeds folder, cane olls, corn, wheat, wheat products, stores, vegetable oils, ghee and vanaspati products. 30. To set up a tanners and to carry on the business as manufacturers of and dealers in and importers and exporters of leather and raw hides and skins. 31. To carry on the business as manufacturers of and dealers in or as stockists, importers, and exporters of plastics, synthetic resins, natural resins, polymer products and chemicals required for the manufacture, processing and fabrication of plastics and similar other such products, tubes pipes, sheets films whether moulded extruded casted, formed or foamed. 32. To purchase, hold and acquire mines, mining leases, mining rights, mining claims and metalliferrous lands and explore, work, exercise, develop and turn to account al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices in connection with the provision of such technical know-how. 37 To deal in foreign exchange, subject to approval of appropriate authorities. 38 To organise and carry on the business of advertisers, advertising agents, liputic by consultants and to organise propaganda and advertising compaigns by means of press advertisements, pamphlets, handbills, circulars, advertisement reels, posters, cinema slides or by any other such means of all types or through the means of radio television or any other such media of all types. 39. To undertake and execute, In India or any part of the world, turnkey projects for electrical installations, air-conditioning, refrigeration, heating, cooling, ventilation humidification sanitary, thermal and accustic insulation work. 40. To carry on the business as manufacturers, traders, importers and exporters of and dealers. in all kinds of carpets and floor coverings, whether made of woollen, cotton, synthetic or such other fibres or fibrous materials of all types. 41. To carry on the business as traders, importers and exporters of and dealers, in cotton and jute, whether raw, semi-processed and all kinds of cotton and jute good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct as distributors, agents, underwriters, brokers, estate agents, middleman, contract man, representation and indenting agent on commission, allowance, as may be deemed fit in all commodities, merchandles and such other allied articles/lines of business. 50. To carry on the business of printing, publishing, multi-colour printing, plate making and to deal in printing Ink, papers, printing machines and other printing materials. 51. To carry on the business of sale and purchase of industrial plots. Sheds, Factory building, constructions of commercial property, letting out of property. contractors for constructions of building, roads. 52. To invest, purchase, acquire, hold, underwrite, sell, exchange, deal in gifts, act as broker, sub-broker, receive or otherwise deal in shares, stocks, securities, deposits, units, real estates, debentures, debenture stock, bonds, trusts, instruments and all other type of securities and to render allied services, to act, arrange, manage and to provide all type of services as Managers to issue, advisors to issue underwriters, Registrar and transfer agents, portfolio Managers, financial consultants, brokers, factors, leasing, hire-purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the NCLT in the appeal ROC as well as Income Tax Department entered appearance and filed their response. After hearing the parties and considering the materials available on record, since the NCLT was satisfied that during preceding 2 years the company was non-operational nor generating any revenue/income and as such there was no reason for allowing the appeal and by its order dated 04.03.2022 dismissed the appeal filed by the company. Against the said order one of the directors on behalf of the company has filed the present appeal. 5. In the present appeal, reply has been filed by Income Tax department, however, the ROC, despite valid service of notice preferred not to appear nor any response has been filed. 6. Mr. M. Raja Singh, learned counsel for the appellant argued at length and on 02.05.2023 we reserved the order. 7. During hearing Mr. Raja Singh, learned counsel for the appellant assailing the impugned order submitted that it is true that after March 2016 no financial statement or return was filed on behalf of the company nor company generated any revenue but still the company was operational. According to the learned counsel once the appellant was in a position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against such a company. When H.N. Explosives Pvt. Ltd. was struck off from the Register of Companies by the respondent, it ceased to exist. Although, the liability of persons falling within the ambit of the first proviso to Section 560(5), who were directors, managers, officers exercising any power of management and members of the erstwhile company can nevertheless be enforced; however, in this case, the liability in terms of the award is that of the company itself and not of any individual mentioned in Section 560(5). Consequently, under the circumstances, the petitioner, in whose favour the award has been rendered, is left without a remedy to effect recovery against the erstwhile company H.N. Explosives Pvt. Ltd. 8. In Umedbhai Jhaverbhai v. Moreshwar Keshav Ors, AIR 1954 Madhya Bharat 146, the Madhya Pradesh High Court, construing the corresponding provision S.247(6) the Companies Act, 1913, restored the name of a company that had been struck off from the Register, as a suit for recovery which had been instituted before the company's name had been struck off, was still pending. It held, inter alia, in paragraph 8 thereof that; ...when a suit is actually pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gister of ROC. 11. Besides hearing learned counsel for the appellant we have perused the material available on record. During hearing learned counsel for the appellant has emphatically argued that the company was operational and doing business. However, on examination of the Memo of Appeal which was filed before the NCLT under Section 252 of the Act certain facts have been incorporated which reflects that due to internal disputes there was deadlock in the management of the company. In Volume II, the appellant has enclosed copy of the Company Appeal No.150/252/ND/2020 which starts from Page 153. At page 164 in para 2.8 the appellant before the NCLT has made the following statement:- 2.8 It is humbly submitted that due to the inter-se litigation among the Board of Directors of the Company and deadlock in the management, no Board meeting could be held to approve the financial statements and annual return since the financial year ended 31.03.2017 12. The aforesaid admission is enough to draw an inference that due to such litigation and deadlock there was no possibility for the company to do any business. Moreover, once the appellant was taking a stand that the company was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided by the Petitioner, it is observed as under:- Sr No. Particulars Remarks 1 Revenue from operation -------- 2. Audited Financial Statement Submitted with Petition for FY 2018-19 3 Income Tax Returns Submitted with Petition for AY 2016-17 4 GST Details ------- 5. Property details ------ 6 Employees details -------- 13. On examination of the table in para No.7 of the reply, it is evident that the Colum No.1 i.e. Revenue from operation and Column No.4, GST Details, have been shown as blank. Meaning thereby that neither any GST was paid nor revenue from operation was collected. These facts are enough to draw an inference that the company was non-operational nor doing any business. Besides this there is admission of the appellant before NCLT that in the managem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. 17. On examination of the aforesaid provision it goes without saying that even a company whose name has been struck off, is competent to realise claim/claims and similarly his liability can also be realised by others. It is evident that while considering the case of Indian Explosives Ltd (Supra) in the year 2010 there was no occasion for the Hon ble High Court to examine the Section 250 of the Companies Act, 2013. Moreover, we are of the opinion that if a specific procedure has been provided under Section 248 of the Act for taking a decision in special exigency for striking off the name of the company taking lenient view in passing restoration of the name of the company may amount to render a statutory provision i.e. Section 248 of the Act redundant without any plausible explanation. In the present case the facts which have emerged are sufficient to persuade us that the Learned NCLT has committed no error in rejecting the appeal filed by the company u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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