CA-248

Is a Director competent to file Section 7 Application under IBC even the name of the sister concern of the Financial Creditor struck off by RoC under Section 248 of Companies Act, 2013 in which he was also director – Cadillac Infotech Pvt. Ltd. Vs. JKM Infrastructure Pvt. Ltd. – NCLAT New Delhi

The Hon’ble NCLAT held that there is no Applicability of Section 167(1) proviso to hold the Director as disqualified in the Airwill JKM Infrastructure Pvt. Ltd., the Financial Creditor. On the date of filing the Section 7 Application, Airwill Infracon had already been struck off, and the Director could not continue as Director of the Company Airwill Infracon having been dissolved, but that shall have no effect on continuance as Director in Airwill JKM Infrastructure Pvt. Ltd. The Director was fully competent to file Section 7 Application and swear Affidavit in support of Section 7 Application.

Is a Director competent to file Section 7 Application under IBC even the name of the sister concern of the Financial Creditor struck off by RoC under Section 248 of Companies Act, 2013 in which he was also director – Cadillac Infotech Pvt. Ltd. Vs. JKM Infrastructure Pvt. Ltd. – NCLAT New Delhi Read Post »

If CIRP having come to an end and liquidation has not been ordered, no further steps are required to be taken by RP, CIRP proceedings may be treated to be closed and Resolution Professional cannot file application for dissolution under Section 54 of IBC | RP can intimate the RoC for striking off the name of Corporate Debtor from the Register of the Companies – Janak Jagjivan Shah RP Rainbow Infrabuild Pvt. Ltd. Vs. CoC of Rainbow Infrabuild Pvt. Ltd. – NCLAT New Delhi

Hon’ble NCLAT held that:

(i) CIRP having been unsuccessful and no liquidation order having been passed, recourse to Section 54 of IBC, could not have been taken by the RP
(ii) When the entity, who has initiated the CIRP is not ready to proceed any further and CIRP period having already come to an end, no further steps were required in the CIRP of the Corporate Debtor and RP could have closed the matter by intimating the Registrar of Companies for striking off the name of Company from the Register of the Companies.
(iii) The CIRP having come to an end and liquidation has not been ordered, no further steps are required to be taken by the RP. The CIRP proceedings may be treated to be closed.

If CIRP having come to an end and liquidation has not been ordered, no further steps are required to be taken by RP, CIRP proceedings may be treated to be closed and Resolution Professional cannot file application for dissolution under Section 54 of IBC | RP can intimate the RoC for striking off the name of Corporate Debtor from the Register of the Companies – Janak Jagjivan Shah RP Rainbow Infrabuild Pvt. Ltd. Vs. CoC of Rainbow Infrabuild Pvt. Ltd. – NCLAT New Delhi Read Post »

The words/expression “the amount due” in Section 250 of the Companies Act, 2013 would only mean a quantified amount of money which is legally recoverable by the company from its debtors, it is not restricted to admitted debt or a crystalised amount due – A.B. Creations and Anr. Vs. Bhan Textiles Pvt. Ltd. – Delhi High Court

Hon’ble Delhi High Court held that:

(i) Even if the name of a company is struck off from the register, it remains operational in so far as it can pursue legal remedies for realisation of the ‘dues’ of the said company against its debtors, which have either crystalised or remain uncrystallised, arising from any liability or obligation of its debtors to the company, but even the creditors can pursue legal remedies against the said company for the payment and discharge of its liabilities or obligations arising from any contract or statutory implications.
(ii) Mere striking-off of the name of the respondent-company from the register by the Registrar of Companies does not automatically invalidate or renders flawed the civil suit filed by the respondent/plaintiff.

The words/expression “the amount due” in Section 250 of the Companies Act, 2013 would only mean a quantified amount of money which is legally recoverable by the company from its debtors, it is not restricted to admitted debt or a crystalised amount due – A.B. Creations and Anr. Vs. Bhan Textiles Pvt. Ltd. – Delhi High Court Read Post »

No appeal but only an application lies under Section 252(3) of the Companies Act, 2013 | Provisions of Section 252(1) and Section 252(3) are distinct and mutually exclusive and operate under different set of circumstances | Merely holding a property for years together does not constitute ‘business’ – Mr. Tahir Vasanali Isani Vs. Registrar of Companies, Goa, Daman & Diu – NCLT Mumbai Bench

In this important decision, Hon’ble NCLT Mumbai Bench covers followings issues:

A. Interpretation of Section 248 and Section 252 of the Companies Act, 2013.
B. Present application filed under Section 252(3) of the Companies Act, 2013.
C. Quoting a wrong provision of law is not fatal to the appeal.
D. Period of Limitation for filing appeal/ application.
E. Merely holding a property for years together does not constitute ‘business’.

No appeal but only an application lies under Section 252(3) of the Companies Act, 2013 | Provisions of Section 252(1) and Section 252(3) are distinct and mutually exclusive and operate under different set of circumstances | Merely holding a property for years together does not constitute ‘business’ – Mr. Tahir Vasanali Isani Vs. Registrar of Companies, Goa, Daman & Diu – NCLT Mumbai Bench Read Post »

The provisions under which action was earlier taken under the Companies Act, 1956, as also the action subsequently taken under the Companies Act, 2013, are not inconsistent with one another – Karmyogi Builders Pvt. Ltd. Vs. Registrar of Companies (ROC) – Delhi High Court

Hon’ble Delhi High Court referring Section 465 of the Companies Act, 2013 held that the provisions under which action was earlier taken under the old Act, as also the action subsequently taken under the new Act, are not inconsistent with one another. The new enactment rather provides for a more detailed procedure for striking off the name of a company as also an effective remedy for dealing with the de-registration of a company, which is not running its business or in operation. Further, the registers maintained under the old Act are also deemed to be registers maintained under the new Act and can be relied upon for seeking any legal remedy.

The provisions under which action was earlier taken under the Companies Act, 1956, as also the action subsequently taken under the Companies Act, 2013, are not inconsistent with one another – Karmyogi Builders Pvt. Ltd. Vs. Registrar of Companies (ROC) – Delhi High Court Read Post »

Provisions of Section 252(1) and 252(3) of the Companies Act, 2013 are distinct and mutually exclusive and operate under different set of circumstances | Section 252(3) is not intended to merely extend the period of limitation in cases which are otherwise covered under Section 252(1) but where the aggrieved person failed to file the appeal within the prescribed period – Mrs. Daksha Atul Desai Vs. Registrar of Companies – NCLT Mumbai Bench

Hon’ble NCLT Mumbai Bench held that the remedy of appeal is provided under Section 252(1) to an aggrieved person when the company is struck off at the instance of the Registrar of Companies on failure of such company to comply with the requisite conditions laid down under Section 248(1) of the Act. However, application under provisions of Section 252(3) can be made by aggrieved company, member, etc., when the company is struck off voluntarily at the behest of the promoters/ directors. Thus, it emerges that the provisions of Section 252(1) and 252(3) are distinct and mutually exclusive and operate under different set of circumstances. Section 252(3) is not intended to merely extend the period of limitation in cases which are otherwise covered under Section 252(1) but where the aggrieved person failed to file the appeal within the prescribed period.

Provisions of Section 252(1) and 252(3) of the Companies Act, 2013 are distinct and mutually exclusive and operate under different set of circumstances | Section 252(3) is not intended to merely extend the period of limitation in cases which are otherwise covered under Section 252(1) but where the aggrieved person failed to file the appeal within the prescribed period – Mrs. Daksha Atul Desai Vs. Registrar of Companies – NCLT Mumbai Bench Read Post »

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