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TMI Blog2019 (11) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant Elektrans Shipping Ptd Ltd. - Shareholder has preferred the Appeal challenging the order of admission dated 10th April, 2019. 2. Learned Counsel appearing on behalf of the Appellant submitted that the name of M/s. Elektrans Shipping Private Limited ('Corporate Debtor') was struck off by the Registrar of Companies on 12th September, 2018 in exercise of powers conferred by Section 248 of the Companies Act, 2013 (hereinafter referred to as the 'Companies Act') by a Public Notice No.ROC-MUM/Section 248/2nd Drive/STK-7/7254. Therefore, according to the learned Counsel for the Appellant, the application under Section 9 of the I&B Code was not maintainable and the Adjudicating Authority erred in admitting the application without considering the status of the 'Corporate Debtor' as on the date of admission. 3. Learned Counsel for the Appellant placed reliance on Section 248(6) of the Companies Act. On the other hand, learned Counsel for the Respondent relied on Section 250 of the Companies Act. 4. The circumstances in which a Company may be wound up by Tribunal has been shown in Section 271 of the Companies Act, but it is not necessary to discuss all such argument, as the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latory 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 Official Gazette of this notice, the company shall stand dissolved. (6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing director, director or other persons in charge of the management of the company: Provided that notwithstanding the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Section 252 (3), if a Company, or any member or creditor or workman thereof feels aggrieved by the Company having its name struck off from the Register of Companies, the Tribunal on an application made by the Company, member, creditor or workman before the expiry of twenty years from the publication in the Official Gazette of the notice under sub-section (5) of section 248, may, if satisfied that the Company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In terms of Part II of I&B Code, for the purpose of liquidation, except 'Voluntary Liquidation of Corporate Persons' under Section 59 of the I&B Code, procedure of 'Corporate Insolvency Resolution Process' is to be followed, if a proceeding is initiated under Sections 7 or 9 of the I&B code. Instead of liquidation, the first step to be taken is to ensure that in a time bound manner the value of assets of Corporate Debtor/ Company is maximized and to promote entrepreneurship, availability of credit by balanci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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