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WINDING UP A COMPANY

Presented By:-

SUSHIL KANT

ASHUTOSH DUBEY

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Winding up of Company

Section 425 of the Companies Act, 1956, deals with the winding up of companies.

Winding up of company is a legal procedure to dissolve the company and put an

end to its life.

The term winding up is defined as, the process by which the life of a company is

ended and its property is administered for the benefit of its members and

creditors.

During the process of winding up, the assets of the company are sold and all

the debts of the company are paid off.

An administrator, called the liquidator, is appointed to take control of the

winding up process of the company.

If any surplus is left, the liquidator would distribute it among the owners of the

company in accordance to their rights.

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In case the assets are insufficient, the owners may have to compensate if the

agreement so specifies.

Winding up application can be filed against the company on the grounds of

unlawful activities, or inability to pay the debts, or reports are not filed as provided

or not followed memorandum and articles etc.

After the entire affair is completed, the company is dissolved and its name is

removed from the register of companies. The companys legal personality comes to

an end and it ceases to exist.

As per Section 425 of the Act, the modes of winding up are:

1. Winding up by the court.

2. Voluntary winding up,

(a)Members Voluntary winding up.

(b)Creditors Voluntary winding up.

3.Winding up subject to supervision of the court.

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1. Winding up By The Court

A company may be wound up by the court in following situations. Here, thecourt means "High Court".

If the company itself, has passed a special resolution in the general meeting to

wound up its affairs. Special resolution means, resolution passed by three-

fourth (3/4") of the members present.

If there is a default, in holding the statutory meeting or in delivering the

statutory report to the Registrar.

A company which is limited by shares, and a company limited by guarantee

having share capital, is required to hold a " Statutory meeting" of its members,within six months, and after one month, from the date of commencement of

it's business. A statutory report of the meeting so held shall also be forwarded

to the registrar. [ sec 165 (1) & (5)]

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If the company fails to commence it's business within one year from the

date of it's incorporation, or suspends it's business for a whole year.

A company limited by shares, has to obtain a "certificate of

commencement" of business from the registrar. Unless it obtains such

certificate, it cannot carry on it's business operation.

If the number of members, in a public company is reduced to less than

seven, and in case of private company less than two.

The statutory requirement of minimum number of members in a public

company is seven, and in case of private company, it is two (sec 12)

If the company is unable to pay its debits; where the financial position ofthe company is, such, that it has more liabilities than assets, and after

disposing off the assets, it is still unable to extinguish it's liabilities, it

means that company is unable to pay it's debts.

If the court, itself is of the opinion that the company should be wound up.

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Who May File Petition

Petition by Company

Petition by Creditors Contributory Petition

Registrars Petition

Petition by any Person Authorized by the Central Government

2. Voluntary Winding Up

a) Members Voluntary Winding Up : A members voluntary winding up

takes place only when the company is solvent. It is initiated by the

members and is entirely managed by them. The liquidator is appointed by

the members. No meeting of creditors is held and no committee of

inspection is appointed. To obtain the benefit of this form of winding up,a declaration of solvency must be filed.

Sections 490-98 of the Act deal with provisions applicable to members

voluntary winding up

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They are as follows :

Appointment and Remuneration of Liquidator

Powers of the Board on Appointment of Liquidator

Office of the Liquidator Falling Vacant

Notice of Appointment to Registrar:

Calling Meeting of Creditors

Calling General Meeting at the End of one Year

Final Meeting and Dissolution

.

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b. Creditors Voluntary Winding Up (Sections 500-509) :

In creditors voluntary winding up, it is the creditors who move the resolutionfor voluntary winding up of a company, and there is no solvency declaration

made by the directors of the company. In other words, when a company is

insolvent, that is, it is not able to pay its debts, it is the creditors voluntary

winding up

Special provisions relating to Creditors Voluntary Winding up

i. Meeting of Creditors [Sec. 500]

ii. Notice of Registrar [Sec. 501]

iii. Appointment of Liquidator [Sec. 502]

iv. Committee of Inspection [Sec. 503]v. Remuneration [Sec. 504]

vi. Boards Power to Cease [Sec. 505] :

vii. Vacancy in the Office of Liquidator [Sec. 506]

viii. Final Meeting and Dissolution (Secs. 508-509]

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3. Winding Up Subject To Supervision Of Court

Winding up subject to supervision of court, is different from "Winding up by

court." Here the court only supervise the winding up procedure. Resolution for

winding up, is passed by members in the general meeting. It is only for some

specific reasons, that court may supervise the winding up proceedings. The

court may put up some special terms and conditions also

However, liberty is granted to creditors, contributories or other to apply to court

for some relief. (Sec. 522)

The court may also appoint liquidators, in addition to already appointed, or

remove any such liquidator. The court may also appoint the official liquidator, asa liquidator to fill up the vacancy.

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Liquidator is entitled to do all such things and acts, as he thinks best in theinterest of company. He shall enjoy the same powers, as if the company is being

wound-up voluntarily.

The court also may exercise powers to enforce calls made by the liquidators, and

such other powers, as if an order has been made for winding up the company

altogether by court. (Sec.526)

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THANK YOU