TMI Blog2019 (11) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor , even if the name of a Corporate Debtor has been struck-off. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 754 of 2019 - - - Dated:- 6-9-2019 - Justice S. J. Mukhopadhaya, Chairperson, Justice A.I.S. Cheema, Member (Judicial) And Justice Kanthi Narahari, Member (Technical) For The Appellant : Ms. Prachi Wazalwar and Mr. Anandh. K, Advocates For The Respondents : Mr. Mayank Kashirsagar, Mr. Darryl Periera, Mr. Parth Sarthy Bose and Mr. Tushar Singh, Advocates, Ms. Pankhuri, Mr. Mohd. Arif and Mr Akhilesh Yadav, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Mr. Pierre D silva filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the I B Code ) against M/s. Elektrans Shipping Private Limited ( Corporate Debtor ), which was admitted by Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, by order dated 10th April, 2019. The Appellant Elektrans Shipping Ptd Ltd. Shareholder has preferred the Appeal challenging the order of admission dated 10th April, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision 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. 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 Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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