The Chennai Bench of the National Company Law Appellate Tribunal (NCLAT) has upheld the dismissal of the Company Petition, as the company was not into existence in the eyes of law at the time of the institution of Section 9 Application of Insolvency & Bankruptcy Code, 2016 (IBC). Owing to the said fact, since the proceedings was drawn by a non-existing entity, it was not maintainable and the same has been rightly dismissed by the NCLT.
The Division Bench comprising Justice Sharad Kumar Sharma (Judicial Member) and Jatindranath Swain (Technical Member) observed that since the Company Petition itself was preferred on Sep 19, 2024, the entity which was alleged to be holding a juristic authority and juristic existence to file the Company Petition, in fact was rather a non-existing entity. M/s. Samunnati Agro Solutions Private Limited, was not legally in existence at that point of time and there was no reservation of right reserved, to sue or be sued.
The Bench clarified that no proceedings under Section 9 of I & B Code, 2016, could have been drawn by an entity, which did not have the juristic authority in the eyes of law, and vested authority to litigate as a juristic entity. The Tribunal further observed that the proceedings held in IA (CA) / 15 (CHE) / 2025 will have no relevance, as it was simply dealing with the issue as to what would be the ‘effective date’ as per Clause 2 (x) of the Scheme.
Mere order of condonation of delay application will not itself make the entity of M/s. Samunnati Agri Value Chain Solutions Private Limited, to be a Company being a juristic status. The Application under Section 9 of IBC, was showing the Applicant as M/s. Samunnati Agro Solutions Private Limited, which was a name in much distinction to Samunnati Agri Value Chain Solutions Private Limited, added the Bench.
The Tribunal explained that as on the date of institution of the proceedings under Section 9 of IBC, it was filed by M/s. Samunnati Agro Solutions Private Limited, which was a non-existing company as its existence did not persist in the eyes of law even much prior to the institution of the Application, having merged into the parent company as on Dec 23, 2022.
Briefly, the Appellant, an Operational Creditor, puts a challenge to the impugned order rendered by the NCLT, Amaravati Bench, whereby the Company Petition was dismissed holding it to be not maintainable. The Company Petition was found to have been preferred by a Company, which at the relevant point of time, was non-existent in the eyes of law, owing to the order of merger approving the Scheme of Arrangement. The NCLT, Chennai – II, passed an order approving the Scheme of Arrangement, as a result of which Samunnati Agro Solutions Private Limited, was amalgamated into Samunnati Financial Intermediation & Services Private Limited i.e. the Resultant Company.
Appearances:
Advocate Raja Shekar Rao Salvaji, for the Appellant
Advocate VVSN. Raju, for the Respondent
