Winding up petition

bt y don't you approach any nearby consultant who can guide you through .. however kindly mention that whether any kind of recovery suit/ 138 NI or any such legal proceeding intitated by you  is pending before any Court against that Company ... 

Ajitabha Pandey 

8756272683, pandeyajitbaha@gmail.com.

Mr. Pandey, Thanks for your immediate response. Pls note we have not initiated any procedding against our client.

so directly u will apply for winding up petition!!  ...dear state the facts of th case .. ... 

Dear Querist,

 

Before an Winding-up Petition filed, you need to first send a statutory notice giving him 2 months time to show reasons as to why you should not file the said petition in appropriate company court. In the said notice, you will also need to disclose the debt that has been acrued in your favour and such debt is legally enforceable debt. If within two months, the other party does not respond or you are not happy with the reply to your statutory notice, you may then ask your lawyer to get such filed in the Court mentioned above.

 

Trust this would suffice.

Dear Sir,

Under the provisions of the Companies Act, 1956, especially sections 433, 434 and 439 ,  a creditor has a right to file a winding up petition against a Company registered as a limited company under the Companies Act, 1956 provided, the amount of debt is not less than Rs.500/-. There is also, some criteria to be complied with before a petition for winding up petition is filed and in brief, it is as under.

1. The debt should be not less than Rs.500/-.

2. The debt should be admitted one and not disputed.

3. The debt should be live.

4. A 21 days statutory notice must have been issued and the debtor failed to repay the debt.

5. The object of the winding up petition should not be recovery.

6. You must also prove in some circumstances that, the company is commercially insolvent.

If the above criteria are complied with, a petition to wind up a company will lie. There is also a possibility that the Management of the company in order to save the company from being wound up may come for a compromise before the court in which event, the courts will grant time to the creditor to pay the debt provided the company proves its bonafides . If the creditor pays the debt, you can withdraw the petition and the Courts also normally allow the same as, the Courts will use the winding up as a last resort. The winding up petition should be filed in the High Court of the state where the Registered Office of the Company is situated. The court fee is quite nominal.  As far time is concerned, there is no fixed parameter to say and it depends upon so many issues and minimum may be 6 months to 1 year and maximum varies depending upon the circumstances.  In the first stage i.e., before the admission of the petition itself, the Court will look in to all aspects thoroughly as once, the petition is admitted, it will be followed by publication of notice of the petition to the General public in the News Papers which will cause grave injury to the company in the event, the winding up petition was later found to be not maintainable.  If you are sure of the debt, you can therefore file a winding up petition.The other remedy is to file a civil suit for a decree.

Regards,

Murali Krishna W

IF A CIVIL SUIT FOR RECOERY OF DEBT IS PENDING BEFORE A CIVIL COURT. CAN WINDING PETITION BE FILED AND WILL IT BE PERMITTED

Dear Sir,

Both are independent rights of a creditor. There is no express bar against filing of a winding up petition by a creditor  against the debtor company in the High Court having jurisdiction even though the said creditor has filed a suit for recovery provided, the requisite criteria is complied with to file the winding up petition. It is no doubt that when the suit is pending, the High court may not be completely inclined  to grant the order to wind up the company in the first instance but, not if the case is established and the need to file the winding up is justified. Winding up petition is not for recovery while the suit is to recover. Under section 446 of the Companies Act, 1956, suits pending against a company which is wound up shall get stayed and the suits will not proceed further except with the leave of the court. If and when the suit is decreed and the debtor company is wound up, the creditor cannot go for execution of the decree except that you will file a claim in the form of affidavit of proof of debt with the Official Liquidator. First of all, you should say the circumstances that led to filing of both the winding up petition and civil suit and then answer to your question can be more reasoning.

Regards,

Murali Krishna W

Which provision deals with the amount of court fess? Does the turnover or standing of a compny result in change in courts fees like on a ad valorem basis or is the fees fixed? I need to know about the court fees required in Allahabad High Court.

When a creditor wants to file a petition for winding up of a company, why only High Court has the jurisdiction in that ?

Company cases including Winding up cases are filed in High Court on its original Jurisdiction. The  followingn  provisions of old Act 1956 companies Act read with new Company' Act 2013 lays down  a detailed procedure regarding procedure to be followed in case of  creditors winding up.

 

 

Saxena & Saxena

28

B - Creditor’s Voluntary Winding Up

¾

Company to call meeting of creditors in

addition to the meeting of shareholders

¾

Advertise the notice of meeting of creditors in

Official Gazette and Newspapers.

¾

Lay full statement of Company’s Affairs with

complete list of creditors and estimated

liabilities in meeting.

¾

Appoint one of their members to preside

above meeting.

¾

Notice of resolution be given to Registrar.

¾

Resolution passed in creditor’s meeting shall

have effect only if it passed after passing the

resolution in General Meeting.

cont.....

Saxena & Saxena

29

¾

Appointment of Liquidator and fixing of

remuneration

ƒ

If nomination for different person to act as a

liquidator is made by members and creditors then

the person nominated by creditors will be the

liquidator.

ƒIf there is any difference of opinion about the

appointment of liquidator then any director,

member, creditor, may move to High Court or

Tribunal within 7 days of the appointment of

Court’s order in this regard will be operative

Form-157 filed by liquidator which should be on

judicial stamp paper.

¾

Verify Liquidator’s Accounts Form-156.

¾

Form-155 relating to the notice published in Official

Gazette and Newspaper.

¾

Verify the ROC report received and take necessary

actions.

¾

Verify Form-157 and 158 (final Liquidator’s Account)

¾

Other Statutory Accounts, papers and register as

prescribed in section 209 of Companies Act 1956:

Books of Accounts i.e. Cash Book, Journal Ledger and

Subsidiary Ledger where all receipt, payments, sales,

purchases, assets and liabilities are recorded.

cont.....

Saxena & Saxena

24

¾

To see compliance of filing of various forms

and documents with Registrar of Companies.

¾

Affidavit from the liquidator for any

undisclosed liability.

¾

To submit report to the concerned High Court

that whether Affairs of the company have

been conducted in the manner prejudicial to

the interest of its members or to public

interest or not?

¾

To do further investigation as per the

directions of High Court (if any) and submit

its report.

Saxena & Saxena

25

Role Of High Court in Voluntary

Liquidation

¾

In case OL submit His report that the affairs of the

company have not been conducted in a manner

prejudicial to the interest

of the members of the

company or to the public

interest. The High Court

shall pass the order

¾

Company shall be deemed to

be dissolved from the

date of submissions of Report by OL.

¾

In case OL submit his report that the affairs of the

company have been conducted in a manner

prejudicial to the interest

of the members of the

company or to the public interest.

cont.....

Saxena & Saxena

26

¾

High Court shall by order direct OL to make further

investigation.

¾

On receipt of such report of OL, High Court may

either pass an order for winding up from the date

as specified in said order by High Court or may

make such other order as court may deem fit.

¾

High court may in fit case declare the dissolution

void within 2 years from the date of dissolution on

application made by :-

i.

Liquidator of company

ii.

Any other person who appears to the Court to

be interested.

Saxena & Saxena

27

Effect of Voluntary Winding Up

¾

The company shall cease to carry on its business

from the commencement of winding up except so far

as may be required for the

beneficial winding up of

such business.

¾

Provided that the Corporate State and Corporate

Powers shall continue until it is dissolved.

¾

Other income like Interest

& Rental – Company shall

be continue to be assessed notwithstanding voluntary

winding up.

What is the meaning of Admitted Debt for the purpose of Winding Up?

Is it also necessary for filing Civil suit for recovery?

Dear Client,

 

iIf any debts are due to the company in  the process of winding up, the officila liquidator will collect the admtted debt dues and if necessary files suit for recovery.

If by any letter the client denies the debt due, then can we go for winding up or we need  to file a civil suit?