FILING OF STATEMENT OF AFFAIRS – WINDING UP A COMPANY – II

[Mr. M. GOVINDARAJAN]

A petition for winding up of a company may be filed by a company itself on passing special resolution or by a person other than the company concerned. Section 272 (4) of the Companies Act, 2013 (‘Act’ for short) provides that a petition presented by the company for winding up before the Tribunal shall be admitted only if accompanied by a statement of affairs in such form and in such manner as may be prescribed. The Statement of affairs shall be in Form WIN 4 and shall contain information up to the date which shall not be more than 30 days prior to the date of filling the petition or filling the objection as applicable. The statement of affairs shall be made in duplicate, duly verified by an affidavit, and affidavit of concurrence of the statement of affairs shall be in Form WIN 5.

Section 274 of the Act provides that where a petition for winding up is filed before the Tribunal by any person other than the company, the Tribunal shall, if satisfied that a prima facie case for winding up of the company is made out, by an order direct the company to file its objections along with a statement of its affairs within thirty days of the order in such form WIN 4. The Tribunal may allow a further period of 30 days in a situation of contingency or special circumstances.  the Tribunal may direct the petitioner to deposit such security for costs as it may consider reasonable as a precondition to issue directions to the company.

A company, which fails to file the statement of affairs shall forfeit the right to oppose the petition and such directors and officers of the company as found responsible for such non-compliance.  If any director or officer of the company contravenes the provisions of this section, the director or the officer of the company who is in default shall be punishable with imprisonment for a term which may extend to 6 months or with fine which shall not be less than Rs. 25000/- but which may extend to Rs.5 lakh rupees, or with both.

Form WIN 4

The Statement of Affairs shall contain the following schedules-

1. Schedule I – Bills of exchange, promissory notes etc., on hand available as assets;
2. Schedule II – List of trade debtors;
3. Schedule III – Loans and advance.

List A

4. Schedule IV – Unpaid calls;
5. Schedule V – Stock in trade;
6. Schedule VI – Debts due from contributories;

List B – Assets specifically pledged and creditors fully or partly secured;

List C – Preferential creditors for rates, taxes, salaries, wages and otherwise the names – to be arranged in alphabetical order and numbered consecutively;

List D – List of debenture holders secured by a floating charge;

List E – Unsecured creditors;

List F – List of preference shareholders;

List G – List of equity shareholders;

List H - Deficiency or surplus account;

List I - Where no entries are made on anyone or more of list ‗A‘ to ‗H‘ the word ‗Nil‘ should be inserted in this column opposite to the list or lists thus left blank.

A. Assets not specifically pledged:

B. Assets specifically pledged and creditors fully or partly secured (not including debenture holders secured by a floating charge):

C. Preferential creditors for Rates, Taxes, Salaries, Wage and overriding preferential payments and otherwise     :

D. Debenture-holders secured by Floating Charge           :

E. Unsecured creditors        :

F. Preferential shareholders:

G. Equity shareholders       :

H. Deficiency or Surplus Account:

Form WIN 5

Form WIN 5 is affidavit of concurrence in Statement of Affairs.

I/We,..........[name(s), description(s) etc.] do solemnly affirm and say as follows :—

That I/we have perused the statement of affairs lodged herein by.....and that to the best of my/our information, knowledge and belief, such statement contains a full and accurate account of the company‘s affairs [except as stated below].

[Here state, if necessary, in what respects, if any, the statement of affairs is not concurred in.]

Solemnly affirmed etc.