WINDING UP ORDER OF A COMPANY – III

[Mr. M. GOVINDARAJAN]

Section 272 of the Companies Act, 2013 (‘Act’ for short) provides the procedure for filing a petition for winding up of a company either by the concerned company any eligible person other than the company before the National Company Law Tribunal (‘Tribunal’ for short).

Section 273(1) of the Act provides that the Tribunal shall pass orders within 90 days from the date of filing of the petitioner for winding up of a company. The Tribunal may pass any of the following orders-

• dismiss it, with or without costs;
• make any interim order as it thinks fit;
•  appoint a provisional liquidator of the company till the making of a winding up order;
• make an order for the winding up of the company with or without costs; or
• any other order as it thinks fit.

The Tribunal shall give notice to the company and afford a reasonable opportunity to it to make its representations, before appointment of a provisional liquidator. The Tribunal may dispense with such notice for special reasons to be recorded in writing.

The Tribunal shall not refuse to make a winding up order on the ground only that the assets of the company have been mortgaged for an amount equal to or in excess of those assets, or that the company has no assets.

Section 273 (2) of here a petition is presented on the ground that it is just and equitable that the company should be wound up, the Tribunal may refuse to make an order of winding up, if it is of the opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing the other remedy.

The order for winding up shall be in Form WIN 11. The order for winding-up shall be sent by the Registrar after it is signed and sealed within a period not exceeding seven days from the date of receipt of the order by the Registrar, to the Company Liquidator and the Registrar of Companies in Form WIN 12 and Form WIN 13.  The copy of the order sent to Company Liquidator shall be accompanied by a copy of the petition and the affidavit.

The Company Liquidator shall cause a sealed copy of the order to be served upon the company in accordance with the provisions of section 20, at its registered office or if there is no registered office, at its principal or last known principal place of business, or upon such other person or persons or in such manner as the Tribunal may direct.

An order for winding up a company shall inter-alia contain that it will be the duty of such of the persons as are liable to submit the books of account of the company completed and audited up to the date of the order, to attend on the Company Liquidator at required time and place and give him all the information. It will be the duty of every person who is in possession of any property, books or papers, cash or any other assets of the company, including the benefits derived therefrom, to surrender forthwith such property, books or papers, cash or other assets and the benefits so derived, as the case may be, to the Company Liquidator.

At the time of making the winding up order, or at any time thereafter, the Tribunal shall give directions to the petitioner as to the advertisement of the order and the persons, if any, on whom the order shall be served and the persons, if any, to whom notice shall be given of the further proceedings, in the liquidation, and such further directions as may be necessary.

The order for the winding up of a company by the Tribunal shall, within fourteen days of the date of the order, be advertised by the petitioner in a newspaper in the English language and a newspaper in vernacular language widely circulating in the State or the Union territory where the registered office of the company is situated and shall be served by the petitioner upon such person, if any, and in such manner as the Tribunal may direct, and the advertisement shall be in Form WIN 14.

The liquidator shall disclose the conflict of interest or lack of independence shall be filed in Form WIN 10 with the Tribunal.