CA-252

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 »

A Creditor cannot file restoration application under Section 252 of the Companies Act, 2013 only to recover claim the amount due to it from the Company – Akums Drugs and Pharmaceuticals Ltd. Vs. The Registrar of Companies and Ors. – NCLT Hyderabad Bench

Hon’ble NCLT Hyderabad Bench held that no doubt, Applicant being the Creditor of Company is entitled to restore the name of the Company but this is not suffice. The Company has not appeared and it implies that it does not want to restore the Company. The Applicant wants to restore the Company only to claim the amount due to it from the Company. For this, the Applicant can file recovery suit and not to get the Company’s name restored. For restoration of the Company, certain statutory requirements are also to be fulfilled i.e. filing of Financial Statements, which cannot be done by the Applicant.

A Creditor cannot file restoration application under Section 252 of the Companies Act, 2013 only to recover claim the amount due to it from the Company – Akums Drugs and Pharmaceuticals Ltd. Vs. The Registrar of Companies and Ors. – NCLT Hyderabad Bench 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 »

NCLAT overrules its judgments in Hemang Phophalia and Elektrans Shipping Pte. Ltd. | Restoration of name of Corporate Debtor under Section 248(5) of Companies Act, 2013 cannot be restored automatic as soon as an application is filed under Section 7 or 9 of IBC by a creditor – Fedex Express Transportation and Supply Chain Services (India) Pvt. Ltd. Vs. Zipker Online Services Pvt. Ltd. – NCLAT New Delhi

This important judgment covers: A. Scheme of Removal of Name by RoC under the Companies Act, 2013. B. Is Restoration of name of Corporate Debtor under Section 248(5) of the Companies Act, 2013 restored automatic as soon as an application is filed under Section 7 or 9 of IBC by a creditor? C. Overrules Hemang Phophalia and Elektrans Shipping Pte. Ltd. judgments. D. Winding up under Companies Act, 2013 vs. Insolvency Resolution under IBC, 2016. E. Disposed of.

NCLAT overrules its judgments in Hemang Phophalia and Elektrans Shipping Pte. Ltd. | Restoration of name of Corporate Debtor under Section 248(5) of Companies Act, 2013 cannot be restored automatic as soon as an application is filed under Section 7 or 9 of IBC by a creditor – Fedex Express Transportation and Supply Chain Services (India) Pvt. Ltd. Vs. Zipker Online Services Pvt. Ltd. – NCLAT New Delhi Read Post »

A petition under Sections 241-242 of the Companies Act, 2013 cannot be maintained against a Company which has been struck-off by the RoC and dissolved under Section 248(5) of the Companies Act, 2013 – Simplex TMC Pvt. Ltd. and Ors. Vs. Simplex Naigai Castings Pvt. Ltd. and Ors. – NCLT Bengaluru Bench

Hon’ble NCLT Bengaluru Bench held that:

(i) Filing of a petition for Oppression and Mismanagement under Sections 241-242 of the Companies Act, 2013 cannot be considered to be covered by the exceptions provided under Section 250 of the Companies Act, 2013.
(ii) The Judgments related to application under the Insolvency and Bankruptcy Code, 2016 being maintainable even for struck-off Company are not relevant; since here it is not a Petition u/s IBC, 2016, but under the provisions of Sections 241 and 242 of the Companies Act, 2013.
(iii) A Petition u/s 241 and 242 of the Companies Act, 2013 cannot be maintained against a Company which has been struck-off by the ROC and dissolved u/s 248(5) of the Companies Act, 2013; since there is no legal existence of such a Company.

A petition under Sections 241-242 of the Companies Act, 2013 cannot be maintained against a Company which has been struck-off by the RoC and dissolved under Section 248(5) of the Companies Act, 2013 – Simplex TMC Pvt. Ltd. and Ors. Vs. Simplex Naigai Castings Pvt. Ltd. and Ors. – NCLT Bengaluru Bench Read Post »

Despite its name being struck off from the Register of Companies, a Corporate Debtor is liable to meet its liabilities – Creditors/Homebuyers of Earth Towne Infrastructure Pvt. Ltd. Vs. Registrar of Companies, NCT of Delhi & Haryana and Anr. – NCLT New Delhi Bench

In this case, since the CD defaulted to allot flats/dwelling units to the Appellants, they instituted CP(IB)-196/ND/2023 for ordering commencement of CIRP in respect of the CD, but there could be a semblance in the proceedings that the application filed under Section 7(2) of IBC, 2016 may not lie against a company which stands struck off from the Register of Companies.

Hon’ble NCLT New Delhi Bench held that since the Directors of the concerned company are in jail/judicial custody, there is no appearance on their behalf. In any case the company is an independent juristic person and in terms of the provisions of Section 250 of the Companies Act, 2013, despite its name being struck off from the Register of Companies, a company is liable to meet its liabilities and in the present case the Homebuyers who paid subscription for allotment of dwelling units to the company are unable to pursue the application filed under Section 7 of IBC, 2016 on account of the company being struck off from the Register of Companies. In the facts and circumstances, it would be just and proper to restore the Earth Towne Infrastructure Pvt. Ltd. to Register of Companies.

Despite its name being struck off from the Register of Companies, a Corporate Debtor is liable to meet its liabilities – Creditors/Homebuyers of Earth Towne Infrastructure Pvt. Ltd. Vs. Registrar of Companies, NCT of Delhi & Haryana and Anr. – NCLT New Delhi Bench Read Post »

Department of Income Tax Vs. FGT Exim Pvt. Ltd. and Ors. – NCLT Ahmedabad Bench

Any person, aggrieved by an order of the ROC, can challenge the striking-off action before this Tribunal within three years from the date of the order of the ROC. In the instant case, the appeal was filed on 21.11.2023 and the company was struck off on 14.08.2018, which is much after 03 years. Hence, the present Appeal is not maintainable in terms of Section 252(1) of the Companies. Act 2013, where under the period of limitation prescribed to file an Appeal is three years. Hence, Appeal is dismissed.

Department of Income Tax Vs. FGT Exim Pvt. Ltd. and Ors. – NCLT Ahmedabad Bench Read Post »

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