National Company Law Appellate Tribunal
Anjali Bhardwaj vs Registrar Of Companies Nct Of Delhi And ... on 22 May, 2023
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COMPANY APPEAL (AT) NO.70 OF 2022
(Arising out of judgement and order dated 4.3.2022 passed in
Appeal No.150/252/ND/2020 by National Company Law
Tribunal, New Delhi)
In the matter of:
Anjali Bhardwaj
D/o Sh Kishan Bhardwaj
A-1/66, First Floor, Panchsheel Enclave,
New Delhi 110017 Appellant
Vs
1. Office of Registrar of Companies,
NCT of Delhi and Haryana
IFCI Tower, 4th floor,
61, Nehru Place,
New Delhi-110019
2. Office of Commissioner of Income Tax,
CR Building, ITO,
Delhi 110002
3. M/s Millennium Realtech Pvt LTd,
592-A, Bijwasan, New Delhi. Respondent
For Appellant: Mr. M. Raja Singh, Mr Shravan Chandrashekhar
and Mr Misbahul Haq, Advocates.
For Respondents: None
JUDGEMENT
(22nd MAY, 2023) JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL) The present appeal has been preferred under Section 421 of the Companies Act, 2013 against an order dated 04.03.2022 2 passed by Learned National Company Law Tribunal, New Delhi Bench -V, New Delhi (hereinafter referred to as 'NCLT') in appeal No.150/252/ND/2020. By the said order learned NCLT has rejected the appeal preferred by M/s Millennium Realtech Pvt Ltd under Section 252 of the Companies Act, 2013 against a strike off order passed by the Registrar of Companies under Section 248 of 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 3 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 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 roads, drains, water supply, electricity and lights. within these areas, to divide the same into suitable plots and rant or sell the plots to the people for building, houses, bungalows farmhouse & colonies for workmen according to schemes approved by improvement trusts, development boards and municipal boards there on and to rent or sell the same to the public and realise cost in lumpsum or on instalments or by hire purchase system; or otherwise to start any housing scheme In India or abroad.
4. To construct, maintain, erect and lay out roads, highway sewers, drains, electric lines, cables,and gaslines, in over and under the estate of any other company or person or body-corporate.
5. To construct, execute, carry out, equip, maintain, Improve, develop civil and constructional work relating to roads, electric, power, heat and light supply work, hotels, buildings, godowns, pleasure grounds, parks, gardens, docks, jitries, embankments, bunds, bridges, wharves, canals, 4 irrigation reclamations Improvement, sewage, sanitary telegraphic, telephone works, warehouses, markets, public buildings and all other such civil and related constructional works.
6. To develop the land for providing roads & other facilities such as water supply and sale the same and to erect and construct buildings or work civil and constructional of every description on any land 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 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, 5 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 for the same either in cash or in shares or partly in cash and partly in shares or otherwise.
8. To negotiate and enter into agreements and contracts with Indian and foreign Individuals, companies, corporations and such other organisations for technical, financial or any other such assistance for carrying out all or any the main objects of the Company or for the purpose of activity research and development of manufacturing projects on the basis of know-how, financial participation or technical collaboration and acquire necessary formulas and patent rights for furthering the main objects of the Company.
9.Subject to Sections 391 to 394, 394A of the Act, to amalgamate with any other company of which all or any of their objects companies having similar to the objects of the Company in any manner whether with or without the liquidation
10. Subject to any law for the time being in force, to undertake or take part in the formation, supervision or control of the business or operations of any person, firm, body corporate, association undertaking carrying on the main business of the Company.
11.To apply for, obtain, purchase or otherwise acquire and prolong and renew any patents, patent-rights, brevets, inventions, processes, scientific technical or other assistance, manufacturing processes know-
how and other information, designs, patterns, copyrights, trade-marks, licences concessions 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 arrangements with any Government or Authorities or any persons or companies that may seem conducive to the main 6 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 persons and upon such terms and conditions as the Company may deem fit and also to invest and deal with the money of the Company not immediately required, in or upon such investments and In such manner as, from time to time, may be determined, provided that the Company shall not carry on the business of banking as provided in the Banking Regulations Act, 1949.
17.Subject to section 58-A and 292, 293, 295 & 372A of the Act and the Regulations made thereunder and the Directions issued by the Reserve Bank of India, to receive money on deposit or loan and borrow or raise money in such manner and at such time or times as the Company thinks fit and in particular by the issue of debentures, debentures-stock, perpetual or otherwise and to secure the repayment of any money borrowed, raised or owing by mortgage, charge or lien upon all or any of the properties, or assets or revenues and profits of the Company both present and future, including Its uncalled capital and also by a similar mortgage, charge or lien to secure and guarantee the performance by the Company or any other person or Company of any obligation undertaken by the Company or such other person or company to give the lenders the power to sale and such other powers as may seem expedient and purchase redeem or pay off any such securities.purpose of acquiring all or any of the properties, rights and liabilities of the Company.
18.To undertake and execute 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.
720. 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 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 of the Companies Act, 1956 to subscribe contribute, gift or donate any money, rights or assets for any national educational, religious, charitable, scientific, public, general or usual objects or to make gifts or donations of money or such other assets to any institutions, clubs, societies, associations, trusts, scientific research associations, funds, universities, college or any individual, body of Individuals or bodies corporate.
27.To establish and maintain or procure the establishment and maintenance of any contributory or non-contributory pension or superannuation, provident or gratuity funds for the benefit of and give of procure the giving of the donations, gratuities pensions, allowances, bonuses or emoluments of any persons who are or were at any time in 8 the employment or service of the company or any company which is a subsidiary of the Company or is allied to or associated with the Company or with any such subsidiary company or who are or were at any time Directors or officers of the Company or any other company as aforesaid and the wives, widows, families and dependents of any such persons and also to establish and subsidise and subscribe to any institutions, associations, club or funds calculated to be for the benefit of or advance aforesaid and make payments to or towards the insurance of any such persons as aforesaid and to do any of the matters aforesaid, either alone or in conjunction with any such other company as 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 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.
934.To appoint agents, sub-agents, dealers, managers canvassers, sales, representatives or salesmen for transacting all or any kind of the main business of which this Company is authorised to carry on and to constitute agencies of the Company in India or in any other country and establish depots and agencies in different parts of the world.
(C)THE OTHER OBJECTS ARE:-
1.To carry on the business as manufacturers, traders, importers and exporters of and dealers in aluminium utensils, steel utensils, and all other such types of utensils and kitchen requisites of all types.
2.To act as business consultant, give advice, to engage in dissemination of information In all aspects of business, organisation and Industry In India and to advise upon the means and methods for extending and developing systems or processes relating to production, storage, distribution, marketing, and securing of orders for sale of good in India and abroad and/or relating to the rendering of services.
3.To carry on the business of running motor lorries, motor taxies, mini buses and conveyances of all kinds and to transport passengers, and goods and to do the business of common carriers.
4.To carry on business by whole sale or retail, or otherwise of Interior decorators and furnishers, upholsters, and dealers in and hirers repairs, cleaners, stores and warehouses of furniture, carpets, linoleums furnshing fabrics and such other floor coverings, household utensils, china and glass goods, fittings, curtains 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.10
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, fruits, vegetables, cash crops and provisions of all kinds.
12. To cultivate, tea, coffee, chinchona and any other such similar product and to carry on the business of planters in all its branches, to carry on and do the business of cultivators, winners and buyers of every kind of vegetable mineral or such other product of soil, dispose of and deal in any such produce, either in its prepared, manufactured or raw state and either by wholesale or retail.
13. To carry on the business of manufacturers of or dealers in pulp and paper of all kinds and articles made from paper and pulp such as card boards and wall and ceiling papers and packaging cartons and newspapers and newsprints.
14. To carry on the business of purchase and sale of petroleum products, to act as dealers and distributors for petroleum companies, to run service stations for the repair and servicing of automobiles and to manufacture or deal in fuel oils, cutting oils and greases.
15. To carry on the business of iron-founders, makers of scientific, industrial and surgical instruments, mechanical engineers, and manufacturers of agricultural implements and other machinery, steel castings and forgings and melleable iron and steel castings, tools makers, brass founders, metal workers, boiler-makers, mill wrights, machinists, Iron and steel converters, smiths, builders, painters, mettallurgists, electrical engineers, water supply engineers, gas makers, farmers, printers, carriers and merchants and to buy, sell, manufacture, repair, convert. alter, let on hire and deal in machinery, implements and rolling stock.11
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, 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 ferrous or non-ferrous metals iron & steel aluminium, brass, tin, nickel, special, steel and their products.
21.To carry on the business of manufacturers, stockists, importers and exporters of and dealers, in engineering drawing sets, builders of requisites steel rules, measuring taps, cutting tools, hand tools, precision measuring tools, machine tools, garage tools, hardware tools, instruments, apparatus and such allied machinery, plant, equipment and appliances of all types.
22.To carry on the business as manufacturers, stockists, importers and exporters of and dealers in bolts, nuts, nails, hooks, and such other hardware Items of all types.
23.To carry on business as manufacturers, stockists, importers, and exporters of and dealers in forging, castings, stampings, of all metals, 12 machinery parts, moulds, press tools, Jigs, fixtures and compression moulding, steel products and automobile parts.
24.To carry on business as manufacturers stockists, importers exporters and repaires of and dealers in dynamos, motors, armatures, magnets, batteries, conductors, Insulators, transformers, convertors, switch-boards, cookers, enginers presses and insulating material.
. 25.To carry on business as manufacturers, stockists, importers and exporters of and dealers in weareable and unwearable fabrics, high density polyethelene and polypropylene, woven snacks and trapaulins.
26 To carry on business as manufacturers of and dealers in and as stockists, Importers, and exporters of packing material, jointing and belling materials, 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 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.
1332.To purchase, hold and acquire mines, mining leases, mining rights, mining claims and metalliferrous lands and explore, work, exercise, develop and turn to account all sorts of major and major minor minerals working of deposits of all kinds of minerals and subsoil materials and to crush, win, set, quarry, smelt, calcine, refine, dress, amalgamate, manipulate and prepare for market ores, metals, and mineral substances of all kinds and to carry on mettallurgical operations in all its branches and to prepare, process, manufacture, assemble, fabricate, cast fil, press machine, treat, weld, harden, plate, temper anneal any kind of metals and consequential products.
33.To produce, manufacture, trade, deal in all dispose of alkalies, dyes, chemicals, acids, gases, compounds, fertilisers, chemical, products of every nature and description, Intermediates, derivatives, all types of floatation regents wetting agents, insecticides, fumigates, dyestuffs, catalyic agents, direct colours, basic colours pigments, drugs, biological, pharmaceuticals, sermus, vitamin products, harmones and products, derived from phosphate mines, limestone quarnes, bouxide mines, petroleum, natural gas and other natural deposits useful or suitable in the manufactum of chemicals and chemical products and to undertake the business of spraying of pessicdes
34.To manufacture, generate, produce, sell, dispose of and deal in industrial gases domestic gases for heating and lighting gas, system, heat light or any other such motive power oblained by incinerating buring forest refuse, wood and plants.
35.To manufacture, buy, sell, import, export, after, improve, manipulate, prepare for market. exchange, install, repaire, service, let on hire and deal 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.
1438 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 goods.
42.To carry on the business as shares and stocks brokers and to buy, sell and deal in all kind of shares stocks, securities, bonds, debentures, units and such other instruments of all types
43.To carry on the business of public transporters and to pay all types of commercial vehicles such as Trucks, Tempos, and pick up vans for carrying goods or passengers anywhere in India
44.To carry on the business as importers, export agents, distributors, stockists, contractors. suppliers, dealers of any kind and to act as manufactures, representatives, agents, brokers, commission agerits and merchants of commodities, articles, products and merchants of any kind or nature.
45. To carry on the business of importers, exporters, dealers, traders, manufactures of traders, earthmoving equipments, canal equipments. Fuel Injection equipments, machine tools and such other allied products thereof.
46.To secure sound investment of foreign capital in Indian undertaking and enterprises and Indian capital in foreign undertaking and enterprises.
47. Subject to the approval of RBI under Reserve Bank of India Act, 1934, as amended by RBI (Amendment) Act, 1997, to carry on the business of leasing and hire purchase and to acquire to provide on lease or to be provided on hire purchase basis all types of industrial and offices, plant equipment, machinery. vehicles, buildings and real estate required for manufacturing, processing. transportation and trading 15 business and such other commercial and service business related thereto.
48. Subject to the approval of RBI under Reserve Bank of India 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 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, Instalments, investments, commission agents, advertisors, stationers, printer, suppliers, convenclers, middlemen, consultants, representatives, indemnity and guarantee business to firms, association & joint ventures, promote companies and its allied activities to subscribe, purchase, take on lease or hire, or otherwise acquire membership of one or more stock exchange in India or abroad including OTCEI and to operate, run and manage the same.
53. To carry on the business of manufacturers, developers and to deal in computers, computer parts, hardware, software, internet, E-mail, website, fax, telex, telephones and other media of communication.
163. As per materials available on record it is evident that the company after 31.03.2016 failed to file its financial statement and annual returns. Subsequently the ROC on reasonable belief that the company was non-operational considered to take a decision for striking off the name of the company from the register of companies and as such on 19.07.2019 ROC issued notice in Form STK-1 intimating the company and directors of company at their registered office about the aforesaid defaults, providing them a fair opportunity to respond. Since there was no response from the company or its directors the ROC published notice on 17.08.2019 in form STK-5 and finally exercising its powers under Section 248 of the Companies Act read with Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016 on 29.10.2019 struck off the name of the company and dissolved the same. In form STK 7 notice dated 18.11.2019 the following facts were incorporated:-
"This is with respect to this office notice No.ROCDelhi248(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 17 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. 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.
186. 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 to satisfy the NCLT that preceding two years the company was operational and doing business the learned NCLT was required to pass an order for restoration of the name of the company on the register of companies.
8. Learned counsel for the appellant further assailing the order impugned has argued that Learned NCLT has incorrectly relied on a judgement of Appellate Tribunal in Company Appeal (AT) No.20 of 2019 in the matter of Alliance Commodities Private Ltd Vs. Office of Registrar of Companies, West Bengal and rejected the appeal. He has argued that in Alliance Commodities Pvt Ltd case (Supra) the company was shell company whereas the fact of the present case is entirely different and there is no allegation that the company was a shell company rather the company was operative.
19He further submits that arbitration proceedings in respect of company and one builder company was going on in which claim of the builder was finally not accepted by the Arbitrator vide its award announced on 20th December, 2020. He submits that in the name of company there is land which was got registered in the year 2007.
According to learned counsel for the appellant since the company is also having assets it was desirable for the NCLT to pass an order for restoration of the name of the company to the register of companies. Besides distinguishing the case of Alliance Commodities Pvt Ltd (Supra), learned counsel for the appellant has also placed reliance on a case reported in 2010 SCC Online DEL 1613 and referred to para 7 and 8 of the judgement which is quoted hereinbelow:-
"7. A petition for restoration of the name of a company to the Register 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 20 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 pending against a company and is being contested by it at the time of the removal of its name from the register, it is proper to direct restoration of the name of the Company particularly when the Directors were aware of the fact of the contested litigation and were actually taking part in it."
To my mind, the above ratio would be equally applicable to the instant case of a company which was in existence when the arbitral award was rendered."
9. Learned counsel for the appellant has also referred to para 7 and 11 of a judgement passed by this Appellate Tribunal reported in MANU/NL/0035/2019, Company Appeal (AT) No.239 of 2018, Lakshmirattan Cotton Mills Company Ltd Vs Union of India & Ors which are quoted hereinbelow:-
"7. We have heard learned Counsel for both sides. The Counsel for the Appellant referred to Judgement of the Hon'ble High Court of Delhi at New Delhi in CP 185/2008 dated 21.04.2010 in the matter of "Indian Explosives Ltd. Vs. Registrar of Companies"
where the Petitioner had Arbitration Award in its favour against Company which had been struck off and it became impossible for the Petitioner to execute the Award and restoration was sought. The Hon'ble High Court referred to another matter decided by the High Court of Madhya Pradesh where it was observed that when 21 suit is pending and is being contested, it is proper to direct restoration of the name of Company, if it is removed.
11. Looking to the disputes pending in the High Court, according to us, it would be appropriate to restore the name of the Company to the Register of Companies leaving all questions open for the Appellant and Respondents to dispute in the Writ 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 company. In Volume II, the appellant has enclosed copy of the Company Appeal 22 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 doing business, it was mandatorily required to satisfy the NCLT with, cogent evidence that the company was doing some business or company was operational. The plea of learned counsel for the appellant that company was operational or doing business in absence of any cogent material is not sustainable. It is further seen from the stand taken by the ROC before the NCLT in the application filed by the applicant i.e. Appeal No.150/2020 that the company was not operational and doing no business. The ROC in its reply in para 4,5,6 and 7 has clarified the position and also clarified that before striking off the name, the company was given full opportunity to explain. For just decision in the matter it is necessary to reproduce 23 para 4,5,6 and 7 of the reply filed by the ROC before the NCLT in Appeal No.150/2020.
"4.That the company was incorporated on 31.01.2006 and it as submitted its Annual Return and Balance Sheet for any of the financial year since financial year ended on 31.03.2016 with is office. Subsequently no documents had been filed by the company with this office, hence, this office had reasonable cause to believe that the company was not in operation, therefore, the name of the company was considered for striking off from Register of companies.
5.That this office issued the notice in the form of STK-1 dated 19.07.2019 (enclosed herewith as Annexure II) intimating the company and the directors of the company at their registered office about the aforesaid defaults, providing them a fir opportunity to respond.
Subsequently, this office also issued public notice of the same in the form of STK-5 dated 17.08.2019.
Thereafter, the name of the company was struck off as per the provisions of Section 248(c) of the Companies Act, 2013 read with Rule 9 of the Companies (Removal of 24 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 Particulars Remarks
No.
1 Revenue from --------
operation
2. Audited Submitted with
Financial Petition for FY
Statement 2018-19
3 Income Tax Submitted with
Returns Petition for AY
2016-17
4 GST Details -------
5. Property details ------
6 Employees --------
details
25
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 management of the company there was deadlock due to litigation and disputes amongst the directors.
14. It is surprising that Memorandum of Association reflects a detailed chapter of object for incorporation of the company which covers almost several aspects of the business but surprisingly for several years, particularly for two preceding years nothing has been shown as to whether the company was doing any business or was in operation or not.
15. The appellant before the NCLT in para 2.9 at running page 164 has further not disputed that the proper opportunity was given to the company before finally striking off the name of the company. The para 2.9 at Page 164 of the Memo of Appeal is reproduced hereinbelow:-26
"2.9 It is further submitted that the Company received a Notice bearing No.ROCDelhi248(1)3673442019 dated 19.07.2019 wherein 30 days time was given to send the representation. However, due to the fact of the inter-se litigation and disputes between the Directors, the said representation could not be made within time and the ROC vide email dated 18.11.2019, communicated to the Company that the name of the Company has been struck off.
16. In so far as reliance placed by learned counsel for the appellant on Indian Explosives Ltd and Lakshmirattan Cotton Mills Company Ltd case is concerned, we are of the opinion that the appellant may not get any advantage from those judgements.
Moreover, from the arbitration award which was brought on record before the NCLT by the appellant it is evident that the claimants' claim was not accepted by the Arbitral Tribunal and in the said arbitration proceedings the appellant company was second party and claimant was the builder. Even suppose as per the Arbitral Award the appellant company was entitled to get any monetary benefit, from the claimant merely striking off the name of the company from the register of ROC may not come in way since in 27 respect of a company whose name has been struck off some protection has been provided under Section 250 of the Companies Act. At this juncture it would be apt to reproduce Section 250 of the 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 28 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 under Section 252 of the Act for its restoration.
18. In view of the facts and circumstances we do not find any error in the impugned order warranting interference.
19. Accordingly the appeal stands dismissed.
(Justice Rakesh Kumar) Member (Judicial) (Dr. Alok Srivastava) Member (Technical) bm