20 Winding Up, Its Need, Grounds And Effect On Shareholders, Creditors And Other Stakeholders

Ms.Swati Bajaj

I. Introduction to the concept

If incorporation is the process of bringing the company into existence, then winding up is the process of bringing an end to the existence of that so called artificial person viz. Company. A company cannot die a natural death. It has an indefinite life span, but if such reasons have emerged which make it desirable to bring an end to its corporate life, then necessary legal mechanisms has to be put into operation to get it done.

This mechanism is the process of winding up. It is a process by which the properties of the company are administered for the benefit of its members and creditors. The person appointed for administering the assets and liabilities is called ‘Liquidator’. In case of compulsory winding up, the liquidator is appointed by the Tribunal under section 275 of the Act; or, in case of voluntary winding up, the liquidator is appointed by the company itself under section 310 of the Act.

Winding up is also referred as ‘Liquidation’. On liquidation, the company’s name is deleted from the list of companies by the Registrar of companies and the same is published in the official gazette.

Prof. Gower’s definition of winding up:-

“Winding up of a company is a process whereby its life is ended and its property administered for the benefit of its creditors and members. An administrator, called liquidator, is appointed and he takes control of the company, collects its assets, pays its debts and finally distributes the surplus among the members in accordance with their rights”.

Modes of Winding Up

Section 270 of the Companies Act, 2013 provides for two modes of winding up, i.e.

Winding up by Tribunal (i.e. compulsory winding up); or

Voluntary winding up.

III. Grounds for winding up by the Tribunal

Section 271 of the Companies Act, 2013 provides various grounds on the basis of which a petition can be filled in the Tribunal for the winding up of the company:

(a) Inability to pay debts: Sub-section (2) of section 271 provides that the inability to pay debts primarily arise under three circumstances:

Where the company fails to clear the debt of the creditor within three weeks immediately preceding the date of demand for payment being made;

Where execution or other process issued on a decree or order of any court in favour of the company is returned unsatisfied in whole or part; and

Where it is proved to the satisfaction of the court that the company is unable to pay its debts.

A petition for winding up on the ground of inability to pay debts must contain all the relevant information about the debt. The petition must disclose the assets of the company and whether they are sufficient to meet the liabilities including contingent and prospective liabilities. Further, the petition must also disclose the position of fixed assets as well as valuation of plant and machinery of the company.

Where a debt is bona fide disputed by the company and the court is satisfied with the company’s defence a winding up order will not be made. In K. Apparao v. Sarkar Chemicals (P) Ltd., the Andhra Pradesh High Court held that where a company has a prima facie sustainable defence or a bona fide dispute of its obligations to discharge the alleged debts or liabilities, the court may not entertain proceedings for the winding up, much less order winding up.

Once there is an admission on part of the respondent company of liability of dues payable, then a petition under Section 273 cannot be dismissed on technical grounds. Company courts can exercise their discretionary powers of dismissing the petition even before issuing a show cause notice regarding admission.

Despite of repeated demands if a company neglects to pay its debts, it will be considered as an inability of the company to pay its debts and an order of winding up can be passed by the court. By non-payment of the undisputed debt within the period of statutory demand, the company is deemed unable to pay its debts and where the company is unable to pay its debts, winding up ought generally to follow in public interest.

(b) Special Resolution: The Company may by special resolution resolve that it be wound up by the Tribunal. The resolution may be passed for any cause whatsoever. However, the Tribunal must see that the winding up is not opposed to public interest or the interest of the company as a whole.

Case law: New Kerala Chits & Traders (P.) Ltd. vs. Official Liquidator [1981], it has been observed in this matter that the Tribunal has discretion in the matter and is under no obligation to order winding-up merely because the company has so resolved.

(c) Against National interest: If the company has acted against the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality.

(d) Failure of Scheme: If the scheme of revival and rehabilitation is not approved by the creditors, then the company administrator shall submit a report to the Tribunal within 15 days and the Tribunal shall order for the winding up of the sick company. The Tribunal, on passing the order of winding up, shall conduct the proceedings for winding up in accordance with the provisions of Chapter XX [Sec. 271(1) (d)].

(e) Fraudulent and unlawful affairs: If on an application made by the Registrar or any other person authorised by the Central Government by notification under this Act, the Tribunal is of the opinion that the affairs of the company have been conducted in a fraudulent manner or the company was formed for fraudulent and unlawful purposes or the persons concerned in the formation or management of its affairs have been guilty of fraud, misfeasance or misconduct in connection therewith and that it is proper that the company be wound-up; then in such a situation, the Tribunal may, on a petition filed by any authorised person, pass an order for the winding up of the company [Sec. 271(1) (e)].

(f) Default in filling financial statements: If the company has made a default in filling with the Registrar its financial statements or annual return for immediately preceding five consecutive financial years [Sec. 271(1) (f)].

(g) Just and Equitable: When the Tribunal is of the opinion that it is just and equitable that the company should be wound up; then the Tribunal may order the winding up of a company. The circumstances in which the courts have in the past dissolved companies on this ground are as follows:

Deadlock: When there is a deadlock in the management of a company, it is just and equitable to order winding up.

Loss of Substratum: When the company has failed to materialise the main objects of the company. The important illustration here is the case of German Date Coffee Co, Re [(1882) 20 Ch D 169], where a company was formed for the purpose of manufacturing coffee from dates under a patent which was to be granted by the Government of Germany and also for working other patents of similar kind. The German patent was never granted and the company embarked upon other patents. But, on the petition of a shareholder, it was held that “the substratum of the company had failed, and it was impossible to carry out the objects for which it was formed; and, therefore, it was just and equitable that the company should be wound up.

Losses: When a company cannot carry forward its business except bearing the burden of losses, then it is just and equitable for the company to be wound up. The Bombay High Court observed in the case of Shah Steamship Navigation Co, Re [(1901) 10 Bom LR 107] that ‘the Court will not be justified in making a winding up order merely on the ground that the company has made losses; and is likely to make further losses.’

Oppression of Minority: It is just and equitable to wind up a company where the principle shareholders have adopted an aggressive or oppressive or squeezing policy towards the minority. It has been observed in Tivoli Free, Re, [(1972) VR 445] that ‘where more than seventy per cent of a company’s funds were being used for objects wholly removed from anything within the memorandum and ninety-three per cent of the shareholders wished to dissociate themselves from the new objects, the company was ordered to be wound up.

Fraudulent Purpose: If the company has been conceived and brought forth in fraud or for illegal purposes, then it is just and equitable to wind up the company. In Universal Mutual Aid and Poor Houses Assn vs. A.D. Thoppa Naidu [AIR 1933 Mad 16] the Madras High Court observed, ‘where the main object of a company is the conduct of a lottery, the mere fact that some of its objects were philanthropic will not prevent the company from being ordered to be wound up as being one formed for an illegal purpose.’

“Public interest” is also another important ground, on the basis of which the court can order the winding up of the company. On the same ground, an order of winding up passed by the Tribunal can be revoked also.

IV. Consequences of Winding up order

(a) The Tribunal must, as soon as the winding up order is made, cause intimation thereof to be sent to the Official Liquidator and the Registrar within a period not exceeding seven days from the date of passing of the order. [Sec. 277]

(b) The petitioner and the company must also file with the Registrar a certified copy of the order. If default is made, then every person responsible for default shall be liable to punishment with fine up to Rs. 1000 for every day.

(c) The order of winding up is deemed to be notice of discharge to the officers employees and workmen of the company except when the business of the company is continued for the beneficial winding up of the company [Sec. 277(3)].

(d) All actions and suits against the company are stayed, unless the Tribunal gives leave to continue or commence proceedings. Further, any suit or proceeding pending in any other Court shall be transferred to the Tribunal in which the winding up of the company is proceeding [Sec. 279].

(e) The order operates in the interests of all the creditors and all the contributories, no matter who in fact asked for it [Sec. 278].

(f) The Official Liquidator, by virtue of his office, becomes the Liquidator of the company and takes possession and control of the assets of the company [Sec. 275].

(g) All the powers of the Board of directors cease and the same are then exercisable by the Liquidator.

(h) On the commencement of winding up, the limitation remains suspended in favour of the company till one year after the winding up order is made [Sec. 358].

(i) Any disposition of the property of the company, and any transfer of shares in the company or alteration in the status of members made after the commencement of the winding-up shall be void [Sec. 334].

(j) Any attachment, distress or execution put in force, without leave of the Tribunal, against the estate or effects of the company after the commencement of the winding up shall be void [Sec. 335(1) (a)]; but not for the recovery of any tax or impost or any dues payable to Government [Sec. 335(2)].

(k) Any sale held, without leave of the Tribunal, of any of the properties or effects of the company after the commencement of winding up shall be void [sec. 335(1) (b)].

(l) Any floating charge created within 12 months immediately preceding the commencement of winding up is void unless it is proved that the company after the creation of the charge was solvent. [Sec. 332].

Consequences of Voluntary winding up

(a) Effect on status of company [Sec. 309]: The company shall cease to carry on its business except if it is required to secure a beneficial winding up.

In Wills v. Association of Universities of British Common Wealth [1964], it was observed that ‘beneficial winding up’ is not confined to financial benefit only. It may be for reconstruction and the business may have to be carried on so as to facilitate the smooth taking over.

(b) Board’s power to cease [Sec. 313]: On the appointment of the Liquidator, all the powers of the Board of directors cease and went into the hands of the Liquidator.

(c) Avoidance of transfers [Sec. 334]: All transfer of shares and alterations in the status of members, made after the commencement of winding up, are void unless sanctioned by the Liquidator or the transfer is made to the Liquidator.

(d) Discharge of employees [Sec. 334]: A resolution to wind up voluntarily operates as notie of discharge to the employees of the company.

Summary:

The module has dealt with the process of winding up, modes of winding up and the grounds on which a company can proceed for winding up. The effects and implications of winding up for a company are also summarized.

REFERENCES:-

1. Companies Act, 2013

2. Taxmann’s Corporate Laws; by Dr. G. K. Kapoor

3. Eastern Book Company’s Company Law; by Avtar Singh

4. LexisNexis’s Insight into the new company’s law by Prachi Manekar

5. Vikas Publishing House Pvt. Ltd.’s Company Law, 12th Ed. by Ashok K. Bagriyal

6. http/legallyindia.com

7. http/jstor.org