TaxTMI 
TaxTMI 
2019 (12) TMI 1551
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....at the Financial Creditor sent a notice under 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 be....
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....016. 13. As regard to nature of debt that is whether it is a 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 a....
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.... 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, 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 A....
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....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 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 ....
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.... 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 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 'Credi....
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....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, 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 2....
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....n and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. v. The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during 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 ....