# In the matter of Mr. Hemang Phophalia Vs. The Greater Bombay Co-operative & Ors. CA (AT) (Insolvency) No. 765-2019

> NCLAT judgment dated 2019-09-05. Citation: TCN-2019-NCLAT-00306. The Greater Bombay Co-operative Bank Limited, the Financial Creditor, filed an application…

- **Court:** NCLAT
- **Order date:** 5 Sept 2019
- **Citation:** TCN-2019-NCLAT-00306
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/mr-hemang-phophalia-vs-the-greater-bombay-co-operative-ors-ca-92fa37df

## Summary

### Background

The Greater Bombay Co-operative Bank Limited, the Financial Creditor, filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, to initiate the Corporate Insolvency Resolution Process against Penguine Umbrella Works Private Limited, the Corporate Debtor, alleging default in repayment of Rs.9,11,08,439.37/- including interest and other charges. The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench admitted the application on June 12, 2019, leading to the present appeal by Mr. Hemang Phophalia, Ex-Director and Shareholder of the Corporate Debtor.

## Facts

The Greater Bombay Co-operative Bank Limited (Financial Creditor) filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, against Penguine Umbrella Works Private Limited (Corporate Debtor) for defaulting on a repayment of Rs.9,11,08,439.37/-. The Adjudicating Authority admitted the application on June 12, 2019. Mr. Hemang Phophalia, the Ex-Director and Shareholder of the Corporate Debtor, appealed the decision, arguing that the Corporate Debtor's name was struck off from the Register of Companies under Section 248 of the Companies Act, 2013, making the application under Section 7 not maintainable. The appellant also claimed the application was barred by limitation and that the company was non-functional with no employees or assets. The key

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## Issues and analysis

### Issue 1: Whether an application under Section 7 or 9 of the Insolvency and Bankruptcy Code is maintainable …

**Ratio:** The power of the Tribunal to wind up a company is not affected by Section 248 of the

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**Reasoning:** The court reasoned that the striking off of a company's name does not extinguish its

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**Interpretation:** The interpretation of Section 248, 250, and 252 of the Companies Act, 2013, in

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**Application:** In this case, the court applied the ratio to the fact that Penguine Umbrella

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## Parties

- **Judges:** S.J. Mukhop…; A.I.S. C…; +2 more
- **Appellants:** Hemang Pho…
- **Respondents:** Penguine Umbrella…; M/s. Penguin…

## Timeline

- **2019-06-12 — Order by Adjudicating…**: The Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, admitted the…
- **2019-09-05 — Appeal Dis…**: The National Company Law Appellate Tribunal (NCLAT) dismissed the appeal filed by Mr.…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 60(1) — Adjudicating Authority for corporate persons](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-60)

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