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 – Deepika Surana Vs. V.K. Aggarwal & Company Pvt. Ltd. – NCLT New Delhi Bench Court-II
January 26, 2022
The Adjudicating Authority is of the view that the issue with regard to maintainability of the present Application against a struck off company needs to be examined first. As per Section 250 of the Companies Act, 2013, 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 realising the amount due to the company and; (b) for the payment or discharge of the liabilities or obligations of the company. Evidently, 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. Therefore, in our considered view, the Corporate Debtor, cannot be considered as dissolved for the purpose of realizing its unpaid dues through the present proceedings. Further, prior to the enactment of IBC 2016, when Section 271(a) and Section 433(e) of the Companies Act 1956 i.e., ground to wound up the Company on being unable to pay its debts, were in vogue, the Legislature had allowed the struck off Company to be wound up by virtue of Section 248(8) of Companies Act 2013.