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2023 (5) TMI 142 - AT - Insolvency and BankruptcyMaintainability of Section 9 application - Petition under Section 9 of the IBC would have lied against the entity not in existence, or not? - application dismissed on the ground that the name of the Corporate Debtor from the Register of the Registrar of Companies had already been struck off - HELD THAT - The Application under Section 9 was not maintainable and was dismissed on 29.01.2019, because it had been filed against the Corporate Debtor whose name was struck off by the RoC in terms of Section 248 of the Act on 09.08.2018 i.e., much before the Application under Section 9 was filed on 10.12.2018. Since, there was no Order passed on merits, therefore, the Appeal was not filed rather an Application under Section 252(3) was filed by the Operational Creditor for the Restoration of the name of the Corporate Debtor Company to the Register maintained by the RoC and the said Application was allowed on 02.03.2021. Thereafter, the Application has rightly been filed for the purpose of revival of the main Petition filed under Section 9 because the eclipse caused because of the fact that the name of the Corporate Debtor Company was struck off from the Register of RoC on 09.08.2018 was removed by Order dated 02.03.2021 and thus there was no hinderance in the way of the Operational Creditor to maintain and proceed with the Application filed under Section 9 to get a decision on it on merits. There are no error in the well-considered Order of the Tribunal - appeal dismissed.
Issues involved:
The issues involved in this case are the dismissal of an Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 against a Corporate Debtor whose name had been struck off by the Registrar of Companies, and the subsequent revival of the application after the restoration of the Corporate Debtor's name on the Register. Issue 1: Dismissal of Application under Section 9: The Operational Creditor filed an Application under Section 9 of the Insolvency and Bankruptcy Code, 2016, against the Corporate Debtor for an Operational Debt amounting to Rs.13,70,502. The Tribunal dismissed the application on 29.01.2019 because the Corporate Debtor's name had already been struck off the Register of Companies on 09.08.2018, rendering the application against a non-existent entity. Issue 2: Restoration of Corporate Debtor's Name: The Operational Creditor then filed an Application under Section 252(3) of the Companies Act, 2013 seeking restoration of the Corporate Debtor's name to the Register maintained by the Registrar of Companies. This application was allowed on 02.03.2021, leading to the Corporate Debtor regaining its active status since 14.04.2021. Issue 3: Revival of the Application under Section 9: Subsequently, the Operational Creditor filed a new Application for the revival of the main Petition under Section 9 on 03.06.2021. The Corporate Debtor contested this application on the grounds that an appeal should have been filed against the initial dismissal order and that the restoration application should have been filed earlier. However, the Tribunal rejected these contentions, stating that the restoration application was pending, justifying the delay in filing the revival application. Judgment Summary: The Appellate Tribunal upheld the Tribunal's decision, stating that the initial dismissal of the Section 9 application was due to the Corporate Debtor's name being struck off the Register. After the name restoration, the Operational Creditor was justified in reviving the application. The Tribunal found no error in the previous order and dismissed the appeal without costs.
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