Creditors winding up

kalpana (Querist) 01 July 2013 This query is : Resolved
I filed a suit for recovery of money against a pvt ltd company in2008 and the same was decreed in 2011 subsequently I also filed execution proceedings the debt was of 2008 I came to know that the company is not doing any business I issued a notice to pay the debt under the companies act since there was no reply I filed a winding up
Petition now the same is returned by the court by endorsing that as the suit was decreed in 2011 is the petition filed within the period of limitation my query is just because the debt was of 2008 and susequently a suit was filed does the company petition become time barred and whether the execution proceedings pending in the court prevents a creditor from filing an application for winding up

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Raj Kumar Makkad (Expert) 01 July 2013
Execution petition of a decree for recovery is sufficient ground for winding up and thus the judgment passed is not legal and is liable to be challenged.

kalpana (Querist) 03 July 2013
Pending execution of a decree is winding up petition maintainable

Guest (Expert) 04 July 2013
Am extremely sorry as I have diversified view from the learned experts. Winding up proceedings of a Company under Section. 433(e) - unable to pay its debts; read with Section 434.
Since debt means legally enforceable debt, the petition need to be filed within 3 years from the date of the debt becoming due. Otherwise it will become time-barred.
In any case, normally having issued the notice u/s. 433, 434, it is expected that party has to file the petition without much loss of time. It should also be remembered that 'winding up of a company' is a discretionary remedy. As such, court would also expect the party to come before it well within time.

Guest (Expert) 04 July 2013
No, Kalpana, it is not maintainable. The recovery proceedings as against a Company in default which is a dormant company and not carrying out business needs to be proceeded through Winding Up proceedings as I stated above.

Rajendra K Goyal (Expert) 05 July 2013
Agreed with the expert Yogesh V. Nayyar, nothing more to add.

Raj Kumar Makkad (Expert) 05 July 2013
Winding up proceeding is last resort but before that the execution petition is duly maintainable against the defaulting company.

Guest (Expert) 05 July 2013
winding proceedings is not maintainable once recovery suit is proceeded. That is the clear position of law u/s 425 of Companies Act as regards winding up proceedings are concerned which is ancillary to sec 433 and 434

Raj Kumar Makkad (Expert) 05 July 2013
I have already clarified that the decree should be got executed through the same cour which passed it by filing execution petition rather going for winding up.

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