TMI Blog2019 (9) TMI 893X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, obtain necessary undertakings from the Managing Director, Director or other persons in charge of the management of the Company - As per proviso thereof, notwithstanding the undertakings referred to in sub-section (6), the assets of the Company are to be made 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. 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 - 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. 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 disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruck 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. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 765 of 2019 - - - Dated:- 5-9-2019 - Mr. S.J. Mukhopadhaya Chairperson, Mr. A.I.S. Cheema Member (Judicial) and Kanthi Narahari Member (Technical) For Appellant: Mr. Arun Kathpalia, Senior Advocate with Mr. P.V. Dinesh, Mr. R.S. Lakshman, Mr. Ashwini Kumar, Mr. Sindhu, Advocates. For Respondents: Mr. Shridhar Y. Chitale, Advocate. Mr. Sumit Shukla, Advocate for Respondent No.2. JUDGMENT First Respondent The Greater Bombay Co-operative Bank Limited (hereinafter referred to as the Financial Creditor ) filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the I B Code ) for initiating Corporate Insolvency Resolution Process against Penguine Umbrella Works Private Limited ( Corporate Debtor ), alleging default in repayment of ₹ 9,11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons and manner in which the name of a Company is struck-off. 8. Chapter XVIII of the Companies Act deals with Removal of Names of Companies from the Register of Companies . The Registrar of Companies is empowered under Section 248 of Companies Act to remove the name of the Company from the Register of the Companies, which reads as follows: - CHAPTER XVIII REMOVAL OF NAMES OF COMPANIES FROM THE REGISTER OF COMPANIES 248. Power of Registrar to remove name of company from register of companies .--(1) Where the Registrar has reasonable cause to believe that- (a) a company has failed to commence its business within one year of its incorporation; [or] [***] (c) a company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application within such period 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any power of management, and of every member of the company dissolved under sub-section (5), shall continue and may be enforced as if the company had not been dissolved. (8) Nothing in this section shall affect the power of the Tribunal to wind up a company the name of which has been struck off from the register of companies 9. As per sub-section (6) of Section 248, before passing an order under sub-section (5) (removing the name from the Register of Companies), the Registrar is to satisfy himself that sufficient provision has been made for realization of all amount due to the company and for the payment or discharge of its liabilities and obligations 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. 10. As per proviso thereof, notwithstanding the undertakings referred to in sub-section (6), the assets of the Company are to be made 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. Fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for placing 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. Section 252 (3) reads as follows:- 252. Appeal to Tribunal.- xxx xxx xxx (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 restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor / Company is not the object, but object is revival and rehabilitation of the Corporate Debtor / Company by way of Resolution and maximization of the value of assets of the Corporate Debtor and balancing the interest of all the stakeholders. 20. The name of the Corporate Debtor (Company) may be struck-off, but the assets may continue. Whether in the present case, there are assets of the Corporate Debtor or not can be looked into only by the Interim Resolution Professional / Resolution Professional . 21. The name of the Company having been struck-off, the Corporate Person cannot file an application under Section 59 for Voluntary Liquidation. In such a case and in view of the provisions of Section 250 (3) read with Section 248 (7) and (8), we hold that the application under Sections 7 and 9 will be maintainable against the Corporate Debtor , even if the name of a Corporate Debtor has been struck-off. 22. So far as, liability of the Ex-Directors or Shareholders or Officers are concerned, Section 248 (7) of the Companies Act being clear, we are not expressing specific opinion, till any order is passed by the Adj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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