Professional Documents
Culture Documents
Unit II
Winding up a Company
Process of putting an end to the life of a company It is a proceeding by means of which a company is dissolved, its assets collected, its debts paid off out of the assets or from contribution from members if necessary. If any surplus is left, it is distributed among the members in accordance with their rights
Modes of Winding up
3 modes Compulsory winding up Voluntary winding up Winding up under the supervision of the Court (abolished by Companies (Amendment) Act, 2004)
Compulsory Winding Up
Wound up by an order of the Court Grounds for winding up of a company
Company by special resolution resolved to wind up Default in delivering the Statutory Report to the Registrar or in holding the Statutory Meeting Does not commence its business within a year from its incorporation Number of members reduced below 7 in case of public limited company and 2 in case of private National Company Law Tribunal may order if it is unable to pay its debts
Compulsory Winding Up
Grounds for winding up of a company
NCLT may order when it is of the opinion that it is just and equitable that the company should be wound up (instances) Dead lock in management Impossible to carry on business except at a loss Company engaged in illegal business Objective of company is impossible to carry on Minority is disregarded or oppressed Lack of confidence in directors Company has been conceived and brought forth in fraud
Official Liquidator
Appointed by Central Government After a winding up order is received, a statement as to the affairs of the company is to be prepared and submitted to official liquidator
Assets of the company Debts and Liabilities Names and addresses of its creditors and amount Debts due to the company; names and addresses of them from whom it is due
Voluntary Winding Up
Company and its creditors are left to settle their affairs without going to Court Most common and popular form of winding up If period is fixed by Articles for the duration of the company has expired If company passes a special resolution for any cause
Voluntary Winding Up
Types of Voluntary winding up
Members voluntary winding up and declaration of solvency
Directors at a meeting declare solvency that company will pay in full within period not exceeding 3 years
Consequences of Winding up
Consequences as to Shareholders (liable to pay full amount upto the face-value of the shares held by him) Consequences as to Creditors (Solvent company : all claims when proved are met fully; Insolvent company : Law of Insolvency shall apply)
Order of Payment
1. Secured Creditors 2. Costs, Charges and expenses of winding up including liquidators, remuneration 3. Preferential payments (revenues, taxes, cess and rates due; wages & salaries; fund payable for the welfare of the employees; expenses of any investigation, etc) 4. Creditors secured by floating charge 5. Unsecured or ordinary creditors 6. Members
Dissolution of a Company
Court makes an order for dissolution on the following grounds
When affairs of the company have been completely wound up When Court is of the opinion that liquidator cannot proceed with winding up for want of funds or assets When it is just and reasonable in the circumstances of the case For any reason whatsoever
Dissolution of a Company
Company is dissolved from the date of the order of the Court Within 30 days the Official Liquidator must send a copy of the Court to the Registrar (otherwise he will be penalized Rs.50 for every day)