Winding Up of Companies

Transcription

1 Winding Up of Companies 1. Introduction 2. Winding Up & Dissolution 3. Reasons for Winding Up A Company 4. Modes of Winding Up A Company 5. Grounds for Compulsory Winding Up 6. Power of the Court after Winding Up Order 7. Powers & Duties of the Official Liquidators 8. Declaration of Solvency 9. Members Voluntary Winding Up 10. Creditors Voluntary Winding Up 11. Winding Up under Supervision of the Court

2 Introduction The winding up of a company is a process which involves ending the life of the company and administering its property for the benefit of its creditors and members. In this process, the assets of the company are collected & realised to the payment of its debt. If after realising the creditors, company finds surplus which is distributed among the members on the other hand if there is any deficit, every member of the company must contribute to the assets of the company. After completion of these formalities prescribed by the Companies Act, the company is dissolved and its name is removed from the Registrar of Companies.

3 Winding Up & Dissolution Generally, the terms winding up and dissolution used to mean the same thing, but according to Companies Act, these two terms are quite different by their legal procedures. The differences between them are as below: Points Winding Up Dissolution Main Feature Proceedings The first stage and involves realising of assets, paying off liabilities & distribution of surplus if any. Carried out by the liquidator appointed by the company/court. The second stage in which a company is finally dissolved. Order can be issued only by the court. Liquidator s Duties Debt Liquidators represents the company. Creditors can prove their debts. Liquidator can not represent company. Creditors cant prove their debts.

4 Reasons for Winding Up A Company The winding up of the company may arise by any one or more of the following reasons: 1. If the object of the company for which it was established have been accomplished. 2. If company unable to carry out its main object. 3. If company has to dispose of its business or the undertaking to another company or an individual. 4. If company is unable to pay its creditors in full.

5 Modes of Winding Up A Company Modes of Winding Up By The Court Compulsory Winding Up [ Sec ] Voluntary Winding Up [ Sec ] Winding Up Under the Supervision of the Court [ Sec ] Members Voluntary Winding Up Creditors Voluntary Winding Up

6 Grounds for Compulsory Winding Up The grounds on which a company can be compulsorily wound up by the court are as follows. 1. If the company itself has passed a special resolution for the winding up by the court. 2. If the statutory report is not filed with the Registrar or company fails to hold the statutory meeting within prescribed time. 3. If the number of members of the company falls below 2 in case of private company and below 7 in case of public company. 4. If company is unable to pay the debts in full.

7 Grounds for Compulsory Winding Up A company will be deemed to be unable to pay its debt under the following conditions: a) If it is proved to the court s satisfaction that the company is unable to pay its debts. b) If the process issued on a decree order of a court in favour of a creditors has not been satisfied. 5. If the court is of the opinion that it is just and equitable that the company should wound up. It should be wound up under following circumstances: a) When the main object of the company for which it was established was failed. b) When the business of the company becomes illegal.

8 Petition for Winding Up (Section 439) A petition for the winding up of a company may be presented to the court by any of the following parties: 1. By a shareholders or contributory can present a petition on the following grounds: a) When No. of members of the company falls below prescribed limit. b) When the contributory has paid the calls in arrears. 2. By the company itself by passing a special; resolution. 3. By the Registrar of the Companies. 4. By any creditor or creditors, including any contingent or prospective creditor or creditors. 5. By the person authorised by the Central Government. 6. By the voluntary liquidator.

9 Power of the Court to dispose of Petition of Winding Up On hearing a petition for the winding up of the company, the court may take the following steps; 1. It may dismiss the application with or without costs. 2. It may adjourn the hearing conditionally/ unconditionally. 3. It may dispose of the application in any way it thinks fit. 4. It may make an interim order. 5. It may order the winding up of the company with or without coats or make any other orders as it thinks fit.

10 Effects of The Winding Up Order After the order has been made by the court for winding up of the company, its effects will be as follows; 1. No suits or legal proceedings can commence against the company without the permission of the court. 2. If a suit or legal proceedings against the company were pending it cannot be proceed with or without the permission of the court.

11 Effects of The Winding Up Order 3. Suits or legal proceedings by or against the company to be stayed on passing of the order or compulsory winding up. 4. The court will appoint the official liquidator for the winding up of the company. 5. Powers of the board of directors are terminated and they shall vest in the official liquidator. 6. Any debt payable at a future date becomes immediately payable.

12 Power of the Court after Winding Up Order To give stay order on receipt of the application for stay order either from auditor or contributor or from the official liquidator Directs the contributors who hold partly paid shares to pay the balance on such shares in case of inadequate funds to meet the liabilities & expenses Can order dissolution of company when it finds that: (i) it is difficult for the liquidator to proceed with winding up for wants of funds. (ii) the affairs of the company are completely wound up. The court has the power to exclude those creditors who fails to prove claims within the stipulated period for the benefit of any distribution to be made on behalf of the company

13 Powers of the Official Liquidators Powers of the Liquidators With Sanction of The Court Without Sanction of The Court To defend any suit, prosecution or other legal proceedings, civil or criminal in the same on behalf of the company To inspect the records and returns of company on the files of the Registrar To carry on the business of the company for beneficial winding up To draw, accept, make and endorse Bill of exchange, hundies, promissory notes in the name of & on behalf of company To raise money on the security of the assets of the company To take out in his official name, letters of administration to any deceased contributory

14 Duties of the Official Liquidators 1. He should take into custody and protect the assets of company. 2. He should submit a preliminary report to the court on company affairs. 3. He should keep proper books of accounts relating to the company. 4. He should keep all the funds of the company in the Public accounts of India in the RBI. 5. He should obey the court s order for the disposing of the company s books.

15 Contribution & Proceedings of the Committee of Inspection (Sec.465) 1. The committee shall not consist of more than 12 members representing the creditors & contributors. 2. The committee shall have power to inspect the accounts of the liquidator at any reasonable time. 3. The committee shall meet at such time as it may itself decide. 4. The quorum of the committee meetings shall be one third or two whichever is higher. 5. Any member of the committee may resign by giving written notice to the liquidator.

16 Duties of Secretary in case of Compulsory Winding Up 1. He should assist the directors in preparing the petition for the winding up of the company. 2. After the order of winding up passed by the court, the secretary should file with the Registrar within 30 days a certified copy of that order. 3. He must submit a statement of affairs of the company to the liquidator within 21 days of the date of winding up order. 4. He should furnish information regarding the company which the liquidators may require from time to time.

17 Voluntary Winding Up When the company wounds up itself by surrendering and realising its assets for the payment of debts, it can be called as voluntary winding up. Voluntary Winding Up By Members By Creditors Under Section 484 of the Companies Act, a company may wound up voluntarily: 1. When the period fixed for the duration of the company had expired by the articles. 2. If the company passes a special resolution to wind up the company voluntarily.

18 Voluntary Winding Up When an ordinary or special resolution has been passed for the winding up of the company, a notice of the same must be given within 14 days by an advertisement in the official gazette an in the newspaper of district. A voluntary resolution is deemed to commence from the date of the resolution and the company ceases to carry on its business from that date except it may be necessary for the beneficial winding up of such business (Sec.485 & 486).

19 Declaration of Solvency Section 488 of the Companies Act provides that when company proposed to wind up voluntarily, the majority of the directors make a declaration of solvency must be made: 1. Within five weeks preceding the date of passing the resolution for winding up and delivered to Registrar for registration before the date, along with: The balance sheet made out on the last mentioned date A statement of the assets & liabilities as on that date

20 Procedure-Members Voluntary Winding Up 1. Declaration of solvency must be made as per the provision of Section 488 of Companies Act. 2. The next step is to hold a general meeting of the members for passing the special resolution for the winding up. 3. The notice of the same must be given within 14 days by an advertisement in the official gazette and local newspaper. 4. The company can appoint a liquidator and fix his remuneration. 5. On appointment of liquidator, all powers of the Board of directors, managing directors ceases. 6. The liquidator shall exercise all powers of the board & do all such acts necessary for winding up of the company.

21 Secretary s Duties-Members Voluntary Winding Up 1. To arrange to hold board meetings for the voluntary winding up of the company. 2. To arrange to hold an extraordinary general meeting of the shareholders to pass a special resolution for winding up. 3. To file with registrar, a declaration of solvency as per the provisions of Section 488.

22 Secretary s Duties-Members Voluntary Winding Up 4. To se that liquidator properly appointed at fixed remuneration. 5. To see that every invoice, order & business letter issued by the company before the words under liquidation. 6. Making arrangement to provide all books, papers and documents as well as movable & immovable properties to the liquidator.

23 Procedure-Creditors Voluntary Winding Up When no declaration of solvency is made it is considered as a case of creditors voluntary winding up. Procedure for the same is as follows: 1. The company shall hold a meeting of creditors immediately after the general meeting of the members to pass a resolution for voluntary winding up. 2. The directors must prepare statement of affairs, list of creditors and statement of their claim and present them to the creditors meeting. 3. A liquidator must be nominated by members & creditors at their respective meetings. 4. The creditor s meeting may appoint a committee of inspection constituting not more than 5 members.

24 Secretary s Duties-Creditors Voluntary Winding Up 1. To call board meeting, to fix the date of general meeting and to hold a creditors meeting. 2. To see that notice of members meeting & creditors meeting are issued. 3. To see that the notice of creditors meeting is published in the official gazette & a local newspaper.

25 Provisions Applicable to Both Voluntary Winding Up [Sec.486, 487 & 511 to 520] 1. The voluntary winding up of the company considered to commence when resolution is passed for the same. 2. The business of the company ceases on the commencement of the winding up. 3. Even the company s business is ceased the corporate status and power of the company remains continue until it is dissolved.

26 Provisions Applicable to Both Voluntary Winding Up [Sec.486, 487 & 511 to 520] 4. The liquidator has power to prepare contributor s list, to make calls, call general meeting of the company. 5. Any question arising in the winding up of the company the court may approved by the liquidator or any contributor or creditor. 6. All costs, charges and expenses of winding up including remuneration of liquidator shall be payable by company s assets.

27 Members Vs. Creditors Voluntary Winding Up Members Voluntary Winding Up Creditors Voluntary Winding Up 1. It is possible when directors makes declaration of solvency before the registrar. 2. Here members appoint the liquidator. 3. Liquidator s remuneration is fixed at general meeting. 4. There will be no committee of inspection. 1. It is possible by insolvent companies so there is no need of declaration of solvency. 2. In this creditors and members may nominate the liquidator. 3. It is fixed by the committee of inspection. 4. Here committee of inspection exists.

28 Winding Up under Supervision of the Court When a resolution has passed for voluntary winding up by company, the court may order that it shall continue to the supervision of the court. The court interferes in the process of winding up of the company. The application for the court s supervision can be made by creditor or contributor or the company itself or the liquidator. This is the mode of winding up which safeguards the interest of the company, shareholders & the creditors.

29 Winding Up under Supervision of the Court The court may take following steps after the order is made for winding up for supervision of the court. 1. It appoints an additional liquidator or liquidators. 2. An appointed liquidator may removed for any complaint against him. 3. It may also appoint the official liquidator to fill up the vacancy of the liquidator caused by removal, death or registration. 4. The court may make a call.

30 Voluntary Vs. Winding Up under Supervision of the Court Voluntary Winding Up 1. The members & creditors' may appoint the liquidators. 2. Transfer of shares or alteration of status of members is possible only after liquidator s sanction.. 3. Attachment of the company property or sale of property does not require court s permission. 4. If any member or officer makes fraud against the company, the liquidator reports the matter to the Registrar. Winding Up under Supervision of the Court 1. The Court may appoint an additional liquidators & also remove him. 2. In this, transfer or alteration is not valid so the liquidator cannot sanction it. 3. In this case it require permission of court. 4. The prosecution of the fraudulent officers and members of the company may taken by the court.

31 Advantages There are some advantages of winding up of a company under Supervision of the Court, they are as follows: 1. It automatically operates as stay of suits and other proceedings against the company. 2. An additional liquidator may appointed by court. 3. The power of the liquidator may restricted by court. 4. The company cannot be dissolved without the order of the court.