AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 986
X X X X Extracts X X X X
X X X X Extracts X X X X
....egistrar 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 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 repro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rect 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 exped....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r 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. 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 windin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be 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 forma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 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. 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, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mos, 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, batterie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 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 obta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....riking 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. 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 Sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5/2008 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 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tted 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 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 carryin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt 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 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....