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TMI Blog2020 (7) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... nce deceased) through her legal heirs Mr. Vijay Kumar Aggarwal and other shareholders of the Respondent No.1 company against the order dated 7.8.2019 passed by NCLT, New Delhi in Company Petition No.1176/2016 thereby dismissing the petition with liberty to file fresh one as and when the company's name is revived. 2. Brief facts of this appeal are that on 22.11.2016 appellants as shareholder of Respondent No.1 filed a petition before Hon'ble High Court of Delhi seeking winding up under the provisions of Section 433(c), (f) and (g) of the Companies Act, 1956. On 12.4.2017 the Hon'ble High Court as per notification Regd. No.D.L.-33004/99 dated 7.12.2016 issued by Ministry of Corporate Affairs transferred the said petition to NCLT Principal Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company was struck off by the ROC under Section 248 of the Act for which an appeal under Section 252 of the Companies Act, 2013 for revival of the company is pending. However, the NCLT has rejected the company petition on the ground that the company's name has been struck off by the ROC and after revival the appellants herein are at liberty to file the petition. This order is erroneously passed. Even if the name of the company has been struck off the power of NCLT to wind up the company shall not be affected as per the provisions under Section 248 (8) of the Companies Act, 2013. For this purpose the learned counsel for the appellant placed reliance on the judgement of this tribunal in the case of Hemang Phophalia Vs The Greater Bombay Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awaited before this company petition for winding up is heard on merits as the NCLT will be exercising two conflicting jurisdictions at the same time; one for restoration of the company and the other for winding up. NCLT has also given liberty to the appellant that they can file fresh petition after revival of the company. Thus there is no illegality in the order and the appeal is liable to be dismissed. 9. After hearing learned counsel for the parties, we have perused the record. 10. We have considered whether the appeal is filed by the competent person on behalf of late Ms Mona Agarwal. Ms Mona Agarwal by way of her Will dated 7.9.2015 bequeathed her all movable and immovable property for her husband Mr. Vijay Kumar Agarwal alone as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. (7) 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), shall continue and may be enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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