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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 ..... the Companies Act, 2013. The name of M/s Millennium Realtech Pvt Ltd (hereinafter referred to as Company) was struck off by the ROC on the ground that preceding two years on behalf of the company no financial statement and annual returns were filed before the ROC and the company was non-operational. By a detailed order the learned NCLT on 04.03.2022 rejected the appeal as not maintainable and did not interfere with striking off action taken by ROC against the company. 2. The short fact of the case is that the present appeal has been filed by Ms Anjali Bhardwaj as director and shareholder of the M/s Millennium Realtech Pvt Ltd, the name of which Company has been struck off by the ROC exercising its powers under Section 248 of the Act. The company was incorporated on 31.01.2006 in the name and style of M/s Millennium Realtech Pvt Ltd under the Companies Act. The company was to be managed by three directors namely Mr. Vinod Kumar Sharma, Ms Anjali Bhardwaj and Mr. Sanjay Kumar Mittal. As per memorandum of the association of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the company or upon any other such lands or immovable property and to pull down, rebuild, enlarge, alter and Improve such land into roads, highway, streats, squares, gardens and such other convenience related thereto and deal with and improve the immovable property of the company or any other immovable property of all types. (B) THE OBJECTS INCIDENTAL OR ANCILLARY TO THE ATTAINMENT OF THE MAIN OBJECTS ARE:- 1 1. To acquire by purchase, lease, exchange or otherwise any movable or immovable property and any rights or privileges which the Company may deem necessary or convenient for the purpose of its main business. 2. To enter into partnership or into any arrangement for sharing profits, union of Interest, joint venture, reciprocal concession or co-operation with persons or companies carrying on or engaged in the main business or transaction of this Company. 3. To import, buy, exchange, alter, improve and manipulate in all kinds of plants, machinery, apparatus, tools and things necessary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessions and the like rights or benefits, conferring an exclusive or non-exclusive or limited or unlimited right of use thereof, which may seem capable of being used for or in connection with the main objects of the Company or the acquisition or use of which may seem calculated directly or indirectly to benefit the Company on payment of any fee royalty or other consideration and to use, exercise or develop the same under or grant licences in respect thereof or otherwise deal with same and to spend money in experimenting upon testing or improving any such patents, Inventions, right or concessions. 12. To apply for and obtain any order under any Act or Legislature, charter, privilege concession, licence or authorisation of any Government, State or other Authority for enabling the Company to carry on any of its main objects into effect or for extending any of the powers of the Company or for effecting and modification of the constitution of the Company or for any other 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 arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecute any trusts, the undertaking of which may seem to the Company desirable, either gratuitously or otherwise. 19. To establish, or promote or concur in establishing or promote any company for the purpose of acquiring all or any of the properties, rights and liabilities of the Company. 20. To sell, lease, mortgage, exchange, grant licences and other rights improve, mange, develop and dispose of undertakings, investments, properties, assets and effects of the company or any part thereof for such consideration as may be expedient and in particular for any shares, stocks, debentures or other securities of any other such company having main objects altogether or. In part similar to those of the Company. 21. Subject to the Provisions of Section 100 to 105 of the Act, to distribute among the members in specie or otherwise any property of the Company or any proceeds of sale or disposal of any property of the Company In the event of winding up. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid. 28. To establish, for any of the main objects of the Company, branches or to establish any firm or firms at places in or outside India as the Company may deem expedient. 29. To pay for any property or rights acquired by or for any services rendered to the Company and in particular to remunerate any person, firm or company introducing business to the Company either in cash or fully or partly-paid up shares with or without preferred or deferred rights in respect of dividend or repayment of capital or otherwise or by any securities which the Company has power to issue or by the grant of any rights or options or partly in one mode and partly in another and generally on such terms as the Company may determine, Subject to the provision of section 314 of the Act. 30. To pay out of the funds of the Company all costs, charges and expenses of and incidental to the formation and registration of the Company and 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and such other household requisites of all types. 5. To carry on the business as brewers, distillers, bottlers, canners preservers, coopers dehidrators, malsters and merchants of and dealers in fruits, herbs, vegetables, plants and liquors by products therefrom, whether intoxicating or not, tònics, vitamin, beverages, flavoured drinks, nector, punch aerated waters and drinks whether soft or otherwise. 6. To carry on the business of tobacconists in all its branches and to sell, make-up and manufacture tobocco, cigars, cigarettes and snuff. 7. To act as cargo agents, travel agents, ship brokers, charter party contractors, ship agents, packing forwarding and clearing agent, salvors, wreck removers werck raisers, auctioneers, Inspectors and observers of quality control custom-house agents, commission agents and general sales agents for any of the air lines, steam-ship companies, 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 exhibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, convert. alter, let on hire and deal in machinery, implements and rolling stock. 16. To carry on the business of hoteliers, moteliers, restaurant owners, sweet-meet merchants. refreshments, room proprietors, refreshment contractors and own run garages, shops, stores, godowns, barse, refreshment rooms, cafetarias, discotheques, restaurants and places for sale, custody, bailment, deposit or protection of the valuable goods and commodities. 17. To carry on the business of manufacturing and dealing, in assembling, buying, selling. reselling, exchanging, attering repairing, importing, exporting, hiring, letting, on hire. distributing, or dealing in motor cars, motor cycles, scooters, motor buses, motor lorries, motor vans, trucks, locomotive engines, trains and, all other road and rail conveyances, ships, boats, barges, launches, steamers and other vessels, 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, ani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials, asbestos materials and fibres, insulation material and welding fluxes, cartons, containers, boxes and cases made of paper, boards, wood glass, plastic, pulp, cellulose films, polythene, rubber, melais, metal folls gelatine, tin flexible, treated, and laminated, or other materials. 27. To carry on business as manufacturers of and dealers in as stockists, Importers and exporters of bottles, jars, fibrite boxes corrugated containers aluminium folls of all types, wooden drums, packing cases, rods, wires, ropes, strips, conductors equipment requited for generation, distribution and transmission of electric energy, cables, motors, fans, lamps, batteries and accumulators. 28. To sell, breed, import, export, Improve, prepare, deal and trade in cattle, bird, poultry, game, live and dead-stock of every description, eggs, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in all kinds of surgicals X-ray units, X-ray equipments, telecommunication machines, business machines, intercoms teleprinters, dictating, and recording machines, broadcasting apparatuses, loud-speakers. radios, auto-radio reverberators, tape-players, cassette tapes, headphones, stereo complex speakers, radios control equipments, cameras, binoculars, microscopes, projectors, telescopes, television sets, refrigerators, coolers, radars, computers and spare 36 To procure of develop and supply technical know-how for the manufacture or processing the installation or erection of machinery or plant in the working or mines, oll wells or other sources of mineral deposits or in carrying out any operations relating to agriculture, animal husbandry, dairy or poultry-farming, forestry or fishery or rendering services 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Act 1934, as amended by RBI (Amendment) Act, 1997, to. Finance the industrial enterprises by way of fending and advancing money, machinery land, building, shed or such other things as may required by such industrial enterprises either with or without security and upon such terms and conditions as the Company may think fit and to guarantee or become securities for the performance of any agreement or contract entered into by industrial enterprises, with any financial Institutions, banks or other parties for obtaining finance whether for its long torms capital, working capital, or for any deffered payment finance. 49. To undertake and transact all kinds of agency business and on and promote any business commercial or otherwise under sound principles and/or to act 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 mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- "This is with respect to this office notice No. ROC Delhi248(1)3673432019 dated 19.07.2019 and notice in form STK-5 issued on dated 09.08.2019 Notice is hereby published that pursuant to sub-section (5) of Section 248 of the Companies Act, 2013 the name of MILLENNIUM REALTECH PRIVATE LIMITED has this day of November been struck off the register of companies and the said Company's dissolved. 4. After the name was struck off and it was dissolved in view of Section 248 of the Companies Act, 2013, the company subsequently filed an appeal under Section 252 of the Act for annulling the order of striking off and for restoration of the name of the Company on the register of Companies which was numbered as Company Appeal No.150/252/ND/2020. Before 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. Aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Companies under Section 560(6) of the Companies Act, 1956 can only be made by the company, a member or a creditor. A creditor is entitled to maintain a petition for restoration only if he was a creditor at the time the name of the company was struck off from the Register of Companies. Here, the arbitration award in favour of the petitioner was rendered on 14th March, 2007, i.e. before the date of the Gazette Notification notifying that the name of H.N. Explosives Pvt. Ltd. has been struck off the Register of Companies. It is clear that the amount claimed by the petitioner was against an incorporated company, which was a legal entity recognized under the Companies Act, , 1956, and the arbitration award in question was also rendered 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petition for final adjudication by the Hon'ble the High Court. Striking off of the name of the Company would create difficulties for the Appellant to pursue its remedies before the High Court and in the facts of the matter, when litigation was pending, the name of the Company should not have been struck off." 10. Learned counsel for the appellant has argued that in Lakshmirattan Cotton Mills Company Ltd case (Supra) this Appellate Tribunal has also referred to the judgement of Delhi High Court passed in Indian Explosives Ltd Vs ROC. On aforesaid grounds it was argued by the learned counsel for appellant that the impugned order is liable to be set aside and the company is required to be restored in the register 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struck off as per the provisions of Section 248(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of Name of Companies from the Register of Companies) Rules, 2016 vide Notice in STK-7 dated 29.10.2019. 6. That the Respondent most respectfully submits that the action of striking off of the present company was legal and justified as the company was not carrying on any operations for a period of two immediately preceding financial years (as indicated by non-filing of the financial statements of the company for two or more years). Moreover, the company had not obtained the status of a Dormant company under Section 455 of the Companies Act, 2013 7. As per the information provided 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, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act which is as follows: "250. Effect of company notified as dissolved.- Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of 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 am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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