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TMI Blog2019 (9) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and other charges. The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench by impugned order dated 12th June, 2019 having admitted the application, the present Appeal has been preferred by Mr. Hemang Phophalia, Ex-Director and Shareholder of the 'Corporate Debtor'. 2. Learned Counsel appearing on behalf of the Appellant submitted that name of the 'Corporate Debtor' was struck-off from the Register of the Companies under Section 248 of the Companies Act, 2013 (hereinafter referred to as the 'Companies Act'), therefore, the application under Section 7 against non-existent Company ('Corporate Debtor') is not maintainable. 3. It was further submitted that the application under Section 7 preferred by 1st Respondent Bank - 'Financial Creditor' was barred by limitation. 4. Learned Counsel appearing on behalf of the Appellant submitted that in view of the initiation of 'Corporate Insolvency Resolution Process', now, the 'Resolution Professional' will ask the Appellant, Ex-Director and others to handover the records and assets of the 'Corporate Debtor', which are not available. However, in absence of any such order passed by the 'Resolution Professional' or the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any may, after extinguishing all its liabilities, by a special resolution or consent of seventy-five per cent. members in terms of paid-up share capital, file an application in the prescribed manner to the Registrar for removing the name of the company from the register of companies on all or any of the grounds specified in sub-section (1) and the Registrar shall, on receipt of such application, cause a public notice to be issued in the prescribed manner: Provided that in the case of a company regulated under a special Act, approval of the regulatory body constituted or established under that Act shall also be obtained and enclosed with the application. (3) Nothing in sub-section (2) shall apply to a company registered under section 8. (4) A notice issued under sub-section (1) or sub-section (2) shall be published in the prescribed manner and also in the Official Gazette for the information of the general public. (5) At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 248, it is clear that Section 248 in no manner will affect the power of the Tribunal to wind up a company, the name of which has been struck off from the Register of Companies. 13. Section 250 of the Companies Act, 2013 relates to effect of Company notified as dissolved and reads 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 realizing the amount due to the company and for the payment or discharge of the liabilities or obligations of the company." 14. Therefore, it is clear that after removal of the name of the Company from the Register of the Company for the purpose of right of realization of all amount due to the Company and for the purpose of payment or discharge of its liabilities or obligations of Company continues. 15. Section 252 relates to 'Appeal to Tribunal' against order of Registrar, notifying a Company as dissolved under Section 248. As per Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be as if the name of the Company had not been struck off from the Register of Companies. 17. The Tribunal is the Adjudicating Authority in terms of Section 60(1) of the I&B Code. Hence, on one side it plays role of 'Adjudicating Authority' and on the other 'Tribunal' under the Companies Act. Therefore, if an application is filed by the 'Creditor' ('Financial Creditor' or ('Operational Creditor') or workman ('Operational Creditor') before the expiry of twenty years from the publication in the Official Gazette of the Notice under sub-section (5) of Section 248, it is open to the Adjudicating Authority to give such directions and make such provisions as deemed just for placing the name of the Company and all other persons in the same position nearly as may be as if the name of the Company had not been struck off from the Register of Companies. 18. As per amended Clause (94-A) of Section 2 of the Companies Act, 2013 "winding up" means 'winding up under this Act or liquidation under the Insolvency and Bankruptcy Code, 2016, as applicable'. Therefore, it is clear that the Company, whose name has been removed from the Register of the Companies can be liquidated under the I&B Code. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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