Deepika Surana (Operational Creditor) Vs. V.K. Aggarwal & Company Private Limited (Corporate debtor)
CP No. (IB)-781(ND)/2020
Facts:
(1) Applicant (operational creditor) being a sole proprietor was approached by the Corporate debtor through an associate M/s Vikhyaat Marbles for supply of imported Dyna marble slabs
(2) Applicant supplied the marble through the associate M/s Vikhyaat to corporate debtor and raised the invoice dated 2nd Feb 2016 and 21st April 2016 corporate debtor made payments against the said invoice till 23.04.2016 but failed to make payment thereafter and an amount of Rs.48,28,313/- remains due and pending in spite of repeated telephonic communication and reminders.
(3) The corporate debtor issued post-dated cheques of Rs. 7,00,000/- dated 01st July 2016 and Rs 6,00,000/- of 11th July 2016 for payment of pending dues, which got dishonored and returned by bank.
(4) Corporate Debtor did not make the due payment of his operational debt, applicant had issued a Demand Notice dated 17.02.2019 and 20.06.2019 under Section 8 of IBC, 2016 at the registered office of the Corporate Debtor via Speed Post. Applicant filled application under section 9 of the code.
(5) Applicant mention that RoC Delhi and Haryana under Section 248 of the Companies Act 2013 has struck off the name of the Appellant Company
Issue: Whether an application under Section 9 initiating CIRP against the Corporate Debtor is maintainable if the name of the Corporate Debtor is struck off from the register of ROC?
Applicant arguments:
Applicant placed reliance on the Judgement of Hon’ble NCLAT in the matter of “Mr. Hemang Phophalia Vs. The Greater Bombay Co-Operative Bank Limited & Ors. Wherein it was held that the name of the ‘Corporate Debtor’ (Company) may be struck-off, but the assets may continue.
Decision:
The Hon’ble Bench held that application under section 9 is maintainable even if the name of corporate debtor has been struck off from the register of ROC.
Rationale:
(1) Hon’ble Bench relying on section 250 of the Companies act 2013 noted that the words Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company used in section is of utmost importance
(2) The company which is struck off has been given an exception by the Legislature to not to be treated as dissolved in two circumstances i.e.,
(a) for the purpose of realizing the amount due to the company and;
(b) for the payment or discharge of the liabilities or obligations of the company.
(3) It was noted that the Applicant is a Creditor of the Corporate Debtor, who had supplied goods to the Corporate Debtor, therefore the Corporate Debtor is under an obligation to make payment of its dues and corporate debtor cannot be considered as dissolved for the purpose of realizing its unpaid dues through the present proceedings.
