9911796707
TMI Blog2019 (11) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the provisions of Section 250 (3) read with Section 248 (7) and (8), we hold that the application under Sections 7 and 9 will be maintainable against the Corporate Debtor , even if the name of a Corporate Debtor has been struck-off. Appeal dismissed. - Justice S. J. Mukhopadhaya, Chairperson, Justice A.I.S. Cheema, Member (Judicial) And Justice Kanthi Narahari, Member (Technical) For The Appellant : Ms. Prachi Wazalwar and Mr. Anandh. K, Advocates For The Respondents : Mr. Mayank Kashirsagar, Mr. Darryl Periera, Mr. Parth Sarthy Bose and Mr. Tushar Singh, Advocates, Ms. Pankhuri, Mr. Mohd. Arif and Mr Akhilesh Yadav, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Mr. Pierre D silva filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the I B Code ) against M/s. Elektrans Shipping Private Limited ( Corporate Debtor ), which was admitted by Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, by order dated 10th April, 2019. The Appellant Elektrans Shipping Ptd Ltd. Shareholder has preferred the Appeal challenging the order of admission dated 10th April, 2019. 2. Learned Counsel appearing on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining the status of a dormant company under section 455, he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. ( 2) Without prejudice to the provisions of sub-section (1), a company 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order removing the name of the Company from the Register of Companies. 11. From sub-section (7) of Section 248, it is also clear that the liability, if any, of every director, manager or other officer who was exercising any power of management, and of every member of the company dissolved under sub-section (5) of Section 248, shall continue and may be enforced as if the company had not been dissolved . 12. From sub-section (8) of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 252, it will be evident that the Tribunal, by the order, before expiry of twenty years from the publication in the Official Gazette of the Notice under sub-Section (5) of Section 248, on an application made by a creditor or workman, may pass order and give such other directions and make such provisions as deemed just for placing the name of the Company and all other persons in the same position as nearly as may 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
