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2019 (12) TMI 1551 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its dues - Financial Creditors or not - nature of debt - Financial Debt or Operational Debt - debt due and payable and a default had occurred or not - maintainability of proceedings against a stuck off company - notice of recall / demand was given, but no reply was given by the Corporate Debtor - meeting out of obligations of proposal of name of IRP - HELD THAT:- The Financial Creditor is allowed to propose the name of a qualified personnel to act as such. This plea of the Corporate Debtor stands rejected. Different dates mentioned at various places - HELD THAT:- These are of technical nature and do not impact the maintainability of the petition filed under Section 7 of the IBC, 2016. Non submission of Board Resolution under Section 186 of the Companies Act, 2013 - HELD THAT:- This plea is also devoid of merit in view of the provisions of Sections 238 of the IBC, 2013 and there being no such requirement under the provisions of IBC, 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 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. This Petition is otherwise complete and defect free - petition admitted.
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