2020 (7) TMI 516 - AT - Companies Law

Maintainability of application for winding up - Striking of name of the company - Section 248 of the Companies Act 2013 - whether the NCLT can proceed with winding up petition or not? - HELD THAT - From sub-section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of the Tribunal to wind up the company, the name of which has been struck off from the register of companies. Therefore, even after removal of the name of the company from the register of companies the NCLT can proceed with the petition for winding up under Section 271 of the Companies Act, 2013. Similar view taken in the case of MR. HEMANG PHOPHALIA VERSUS THE GREATER BOMBAY CO-OPERATIVE BANK LIMITED AND M/S. PENGUIN UMBRELLA WORKS PRIVATE LIMITED 2019 (9) TMI 893 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI where it was held that the name of the Company having been struck-off, the Corporate Person cannot file an application under Section 59 for Voluntary Liquidation. The matter is remitted to NCLT, New Delhi for deciding the winding up petition on merit as per law - Appeal allowed by way of remand.

Summary

Issues:
- Competency of the appellant to file the appeal on behalf of the deceased.
- Whether NCLT can proceed with a winding-up petition after the company's name has been struck off under Section 248 of the Companies Act, 2013.

Competency of the Appellant:
The appeal was filed by the legal heirs of the deceased appellant against the order dismissing the petition for winding up the company. The Respondents raised objections regarding the competency of the appellant to file the appeal. However, it was established that the appellant's husband was the sole beneficiary as per the Will, and he had the right to file the appeal on behalf of the deceased. The objection regarding the competency of the appeal was dismissed.

Proceeding with Winding-Up Petition after Company Name Removal:
The central issue was whether the NCLT could proceed with a winding-up petition after the company's name had been struck off under Section 248 of the Companies Act, 2013. The relevant provision, Section 248(8), explicitly states that the Tribunal's power to wind up a company is not affected even if the company's name has been struck off the register of companies. Therefore, the NCLT had the authority to proceed with the winding-up petition even after the removal of the company's name from the register. This interpretation was supported by a previous judgment in a similar case.

Judgment:
The NCLAT found that the order dismissing the winding-up petition was not sustainable in law. Therefore, the impugned order was set aside, and the matter was remitted back to the NCLT, New Delhi for a fresh decision on the winding-up petition based on merit and in accordance with the law. The parties were directed to appear before the NCLT on a specified date. No costs were awarded in this matter.