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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 ..... er Section 8 of IBC, 2016 inadvertently and, in fact, it was a notice of recall / demand. No reply was given by the Corporate Debtor. The Ld. Counsel further pleaded that there was a debt due and payable and a default had occurred in payment thereof, hence, condition of section 7 existed. Consequently this petition are likely to be admitted. 3. The Ld. Counsel for the Corporate Debtor appeared and submitted that it was not a case of loan but was given for purchase of material from the Corporate Debtor, hence, the status of the petitioner as Financial Creditor was in itself not tenable. In support of her such claim, she drew our attention to page 19 of the Petition containing ledger account of the Corporate Debtor in the books of Financial Creditor and submitted that narration of payment showed that it was a case of advance. She further argued that no written agreement existed, no promisory note or PDC or other security had been provided and these facts also supported her claim that it was not a case of loan. She also pleaded requirements of Sections 186 of the Companies Act, 2013 were also not complied as no Board Resolution had been passed. Thereafter, she drew our attention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial debt or operational debt, we carefully perused the ledger account, copy of which has been placed at page 19 of the paper book. The narration given therein reads as "being amount paid towards loan and advances". The Corporate Debtor is trying to read only the words "Advances", hence, we find 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. 14. As regard to the aspect of maintainability of proceedings against a stuck off company we find that the Hon'ble NCLAT has held that proceedings against struck off company under Section 7 IBC, 2016 were valid. The relevant findings of the order of the Hon'ble NCLAT are reproduced as under: It was further submitted that the application under Section 7 preferred by 1st Respondent Bank - Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod for obtaining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de available for payment or discharge of its liabilities and obligations even after the date of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be as if the name of the company had not been struck off from the register of companies." 16. From sub-section (3) of Section 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot expressing specific opinion, till any order is passed by the Adjudicating Authority or demand is made by the 'Interim Resolution Professional. 23. In view of the aforesaid provision, we hold that the Adjudicating Authority who is also the Tribunal is empowered to restore the name of the Company and all other persons in their respective position for the purpose of initiation of 'Corporate Insolvency Resolution Process' under Sections 7 and 9 of the I & B Code based on the application, if filed by the 'Creditor' ('Financial Creditor' or 'Operational Creditor') or workman within twenty years from the date the name of the Company is struck off under sub-section (5) of Section 248. In the present case, application under Section 7 having admitted, the 'Corporate Debtor' and its Directors, Officers, etc. deemed to have been restored in terms of Section 252(3) of the Companies Act. 15. Thus, having regard to the above findings and other decisions of the Hon'ble NCLAT wherein the findings given in the aforesaid decision have been followed. We hold that CIRP can be initiated against s struck off company. 16. The Financial Creditor in the supplementary affidavit has propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the moratorium period. vi. The provisions of sub-section (I) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii. The order of moratorium shall have effect from the date of admission till the completion of the Corporate Insolvency Resolution Process. viii. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Sec.31 or passes an order for liquidation of corporate debtor under Sec.33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix. Necessary public announcement as per Section 15 of the IBC, 2016 may be made. x. Mr. Sanjeev Jhunjhunwala, with address at Siddha Weston, 9 Weston Street, Suit No. 134, Kolkata 700 013 and Registration No. IBB1/1PA-001/1P-P00325/ 2017-18/ 10595 is hereby appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a meeting of Committee of Creditors for evolving a resolution plan. xi. The Interim Resolution Professional shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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