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TMI Blog2020 (7) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. - Company Appeal (AT) No.320 of 2019 - - - Dated:- 18-3-2020 - Justice Jarat Kumar Jain Member (Judicial), Mr. Balvinder Singh Member (Technical) And Dr. Ashok Kumar Mishr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 30.6.2017 exercising powers under sub-section (5) of Section 248 of the Companies Act 2013 struck off the name of the Company from register of companies with effect from 7.6.2017. The Respondent No.2 filed an appeal No.632-252-ND -2018 before NCLT Delhi under Section 252 of the Companies Act, 2013 for revival of the Company which is pending for adjudication before the NCLT. The petition for winding up was adjourned from time to time to await the outcome of the appeal under Section 252 of the Companies Act, 2013 filed for revival of the Respondent No.1 company. However on 7.8.2019 NCLT rejected the petition for winding up with liberty to the petitioner(Appellants) to file a fresh one as and when the respondent company is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application before NCLT for review of the impugned order. Appellant cannot be permitted to exercise concurrent jurisdiction over the same dispute over the same parties for the same relief and on same ground and same cause of action. In such circumstances the possibility of conflicting decisions cannot be ruled out. 6. For the objection learned counsel for the appellants filed the copy of the order dated 25.2.2020 passed by the NCLT thereby the application No.2255/PB/2019 for review of the impugned order is disposed off as withdrawn. 7. Thus the objection in regard to maintainability of the appeal does not survive. 8. Learned counsel for Respondents opposing the prayer and submitted that appellant No.1 late Ms Mona Agarwal has pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Agarwal is fully competent to file this appeal. 11. Admittedly appellants have filed petition for winding up of Respondent No.1 company on 22.11.2016. Subsequently this petition was transferred to NCLT New Delhi. During the pendency of this petition the name of the company has been struck off w.e.f. 07.06.2017 by ROC exercising power under sub-section (5) of Section 248 of the Companies Act, 2013. Ld NCLT by the impugned order has rejected the winding up petition with liberty to file a fresh one when the name of the company is revived. 12. The question for consideration before us that during the pendency of winding up petition the name of the company has been struck off under Section 248 of the Companies Act 2013. In such circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistrar 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 subsection (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 reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. We have taken the same view in the case of Mr Hemang P:hophallia (supra) 16. With the aforesaid, we are of the considered view that the impugned order is not sustainable in law. Hence the order is hereby set aside and the matter is remitted to NCLT, New Delhi for deciding the winding up petition on merit as per law. However, no order as to cost. 17. Registrar to send the copy of this order to NCLT, Delhi. Parties are directed to appear before NCLT, New Delhi on 07.04.2020. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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