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TMI Blog2019 (12) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016. Nature of debt - whether it is a financial debt or operational debt? - HELD THAT:- The Corporate Debtor is trying to read only the words Advances , hence, there are no substance in her contention that it was a case of advance and not of loan especially when she has not brought any material on record to support her contention that it was a case of advance for purchase of goods. Similarly at other places the word loan conjunction with advance has been used. We are further of the view that absence of PDC or any written agreement does not alter the character of the transaction and other facts and material can establish the true nature of transaction. Maintainability of proceedings against a stuck off company - HELD THAT:- The Hon ble NCLAT has held that proceedings against struck off company under Section 7 IBC, 2016 were valid - CIRP can be initiated against s struck off company. The Financial Creditor in the supplementary affidavit has proposed the name of the IRP who has given his consent and it has been claimed that no disciplinary proceedings are pending against him, his name is approved - the IRP / RP to file an application under Section 252(3) of the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to various pages of the petition as well as of the documents to show that there was inconsistency and contradiction as regards the date of default and date of payment due i.e. whether it was 31St March, 2017 or 31%t March, 2019. She also submitted that the name of the IRP had not been proposed which was an incurable defect, hence, for this reason alone, the petition was liable to be dismissed. 4. It was also pleaded that petition was not maintainable for the reason that the name of the Corporate Debtor had already been struck off from Register of Companies and did not exist in law. It was also pleaded that notice under Section 8 had been issued, hence, this fact also supported her contention that it was a case of advance. 5. In the rejoinder, the Ld. Counsel for the Financial Creditor submitted that there were typographical mistakes but the fact that disbursement of loan was not at all in dispute. It was also not in dispute that the amount had been payable and the only defence had been take by Corporate Debtor was in regard to nature of loan. 6. The Ld. Counsel submitted that proceedings under IBC could be initiated against the struck of companies as well. For this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Adjudicating Authority (National Company Lay Tribunal), Mumbai Bench, we are not inclined to decide such issue. 5. Learned Counsel for the Appellant also submitted that Company is non-functional since number of years and there is no employee working in company and even assets are not there. Therefore, according to hi, the Resolution Professional cannot make the Corporate Debtor a going concern. Therefore, the application under Section 7 is not maintainable. However, on the ground that there is no employee working, or the Shareholder(s) or Director(s) ceased to be Shareholder (s) or Director(s), cannot be a ground to reject application under Sections 7 or 9 of the I B Code. 6. The question arises for consideration is whether an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered 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 06-12-2019 (Page 2 of 6) www.manupatra.com National Company Law Tribunal 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 undertakings referred to in this sub-section, the assets of the company shall be made available for the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 name of the Company be restored to the Register of Companies, order the name of the Company to be restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 1 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 balancing the interest of all the stakeholders; within an active ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ementary affidavit has proposed the name of the IRP who has given his consent and it has been claimed that no disciplinary proceedings are pending against him, hence, we approve his name. 17. We also direct IRP / RP to file an application under Section 252(3) of the Companies Act, 2013 and serve the copy of the same to Registrar of Companies, West Bengal so that name of the struck off company can formally be restored by an appropriate order of the Tribunal. 18. This Petition is otherwise complete and defect free. Hence, we admit the same and order as under: ORDER i. The petition filed by the Financial Creditor under Section 7 of the Insolvency Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Insolvency Resolution Process in respect of the Corporate Debtor namely Goouksheer Farm Fresh Pvt. Ltd. ii. We hereby declare a Moratorium and public announcement in accordance with Sections 13 to 15 of the IBC, 2016. iii. The moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of Creditors and shall identify the prospective Resolution Applicant within 105 days from the insolvency commencement date. xii. The IRP is directed to see that Regulation 40A of IBBI (IRP for Corporate Persons) Regulations, 2016 is complied strictly and file progress report in terms of compliance of the Regulation. xiii. The Applicant/ Financial Creditor is directed to deposit ₹ 50,000/- Fifty Thousand only) in the ESCROW Account in SBI to be operated though the Registrar, NCLT, Kolkata Bench, for the purpose of meeting the preliminary expenses for initiating the CIR Process by the IRP, as per Regulation 33(3) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. xiv. Registry is hereby directed under Section 7(7)(a) of the I.B. Code, 2016 to communicate the order to the Financial Creditor, the Corporate Debtor and to the Interim Resolution Professional by Speed Post as well as through e-mail. 19. List the matter on 06.02.2020 for filing of progress report. 20. Certified copy of the order may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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