Late Mona Aggarwal Vs.Ghaziabad Engg Company Ltd & Ors. - Even after removal of the name of the company from the register of companies the NCLT can proceed with the petition for winding up under Section 271 of the Companies Act, 2013.

NCLAT (18.03.2020) in Late Mona Aggarwal Vs. Ghaziabad Engg. Company Ltd & Ors. [Company Appeal (AT) No.320 of 2019] held that;

• From sub-section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of the Tribunal to wind up the company, the name of which has been struck off from the register of companies. Therefore, even after removal of the name of the company from the register of companies the NCLT can proceed with the petition for winding up under Section 271 of the Companies Act, 2013.

Excerpts of the Order;

This appeal filed by Late Smt Mona Aggarwal (since deceased) through her legal heirs Mr. Vijay Kumar Aggarwal and other shareholders of the Respondent No.1 company against the order dated 7.8.2019 passed by NCLT, New Delhi in Company Petition No.1176/2016 thereby dismissing the petition with liberty to file fresh one as and when the company’s name is revived.

# 2. Brief facts of this appeal are that on 22.11.2016 appellants as shareholder of Respondent No.1 filed a petition before Hon’ble High Court of Delhi seeking winding up under the provisions of Section 433(c), (f) and (g) of the Companies Act, 1956. On 12.4.2017 the Hon’ble High Court as per notification Regd. No.D.L.-33004/99 dated 7.12.2016 issued by Ministry of Corporate Affairs transferred the said petition to NCLT Principal Bench, New Delhi. NCLT vide order dated 28.7.2017 directed the petition to be amended  to refer to the relevant sections of the Companies Act, 2013. In compliance of the directions the petition was amended i.e. the petition treated as filed under Section 271 of the Companies Act, 2013. On 19.9.2017 NCLT issued notice on the petition for winding up of the Respondent No.1 to the Respondents herein. During the pendency of the petition, ROC vide order dated 30.6.2017 exercising powers under sub-section (5) of Section 248 of the Companies Act 2013 struck off the name of the Company from register of companies with effect from 7.6.2017. The Respondent No.2 filed an appeal No.632-252-ND -2018 before NCLT Delhi under Section 252 of the Companies Act, 2013 for revival of the Company which is pending for adjudication before the NCLT. The petition for winding up was adjourned from time to time to await the outcome of the appeal under Section 252 of the Companies Act, 2013 filed for revival of the Respondent No.1 company. However on 7.8.2019 NCLT rejected the petition for winding up with liberty to the petitioner(Appellants) to file a fresh one as and when the respondent company is revived.

# 11. Admittedly appellants have filed petition for winding up of Respondent No.1 company on 22.11.2016. Subsequently this petition was transferred to NCLT New Delhi. During the pendency of this petition the name of the company has been struck off w.e.f. 07.06.2017 by ROC exercising power under sub-section (5) of Section 248 of the Companies Act, 2013. Ld NCLT by the impugned order has rejected the winding up petition with liberty to file a fresh one when the name of the company is revived.

# 12. The question for consideration before us that during the pendency of winding up petition the name of the company has been struck off under Section 248 of the Companies Act 2013. In such circumstances whether the NCLT can proceed with winding up petition or not.

# 14. From sub-section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of the Tribunal to wind up the company, the name of which has been struck off from the register of companies. Therefore, even after removal of the name of the company from the register of companies the NCLT can proceed with the petition for winding up under Section 271 of the Companies Act, 2013.

# 15. We have taken the same view in the case of Mr Hemang P:hophallia (supra) 

# 16. With the aforesaid, we are of the considered view that the impugned order is not sustainable in law. Hence the order is hereby set aside and the matter is remitted to NCLT, New Delhi for deciding the winding up petition on merit as per law. However, no order as to cost.

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