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Synopsis

The National Company Law Tribunal has recently observed that insolvency resolution cannot be initiated against a struck-off company unless the name of the company is restored by the Registrar of Companies.

“Further, according to the provisions of Section 248(8) of the Companies Act, 2013, the Tribunal may order winding up of a Company, the name of which has been struck off, but no power can be exercised by the Tribunal for Insolvency Resolution under the Insolvency and Bankruptcy Code, 2016, unless the name of the Company is restored to the Register of Company in terms of procedure laid down under Section 252 of the Companies Act, 2013,” the order reads.

The division bench of the NCLT, comprising Judicial Member Manni Sankariah Shanmuga Sundaram and Technical Member Binod Kumar Sinha, was hearing an application filed by 146 homebuyers under section 7 of the IBC 2016, seeking to initiate CIRP against the corporate debtor.

The 146 homebuyers had filed an application seeking initiation of CIRP as the corporate debtor had not delivered the apartments and committed a default by collecting more than Rs. 28 crores.

The applicants had written to the corporate debtor by way of email, but the same was bounced back with the remark that the address was not found.

Further, the courier was also returned with the reason that the receiver's address had shifted.

The applicants published a notice in the newspaper, and since there was no response from the corporate debtor, the tribunal proceeded ex parte.

The counsel for the applicant submitted the master data of the MCA Portal, which showed that the company was struck off.

The tribunal in its order said that the name can be restored based on an appeal by the aggrieved person and the tribunal does not have the suo moto power to restore the name.

“The power of the Tribunal to restore the name of a struck off company under Section 252 of the Companies Act, 2013 is not a suo motu power, but is to be exercised either on the basis of an appeal filed by any aggrieved person under Section 252 (1) or to be exercised on an application filed by the Companies, its members or creditors or workmen aggrieved by the order of striking off under Section 252(3) of the Companies Act, 2013,” the order reads.

Therefore, the tribunal directed the applicants to take appropriate steps to seek the restoration of the name of the Corporate Debtor in the Register of Companies, so as to proceed with the present application filed under Section 7 of the Code, 2016.

The bench will now hear the petition on January 2, 2024.