Winding Up of a Company by Tribunal
Winding up a company, often referred to as liquidation, comes into play when a company faces financial difficulties and is incapable of meeting its obligations to creditors. It entails a systematic process wherein the company’s assets are liquidated to generate funds for settling its outstanding debts. After all the debts have been satisfactorily settled, any surplus funds are distributed among the shareholders and this marks the formal dissolution of the private limited company registration, bringing an end to its existence. The winding-up of a company can be executed through two distinct avenues, either by the tribunal’s intervention or voluntarily initiated by the company itself. In this blog, we shall understand the winding up of a company by tribunal in India. What is Winding Up by Tribunal? Winding up by tribunal is a type of compulsory winding up that is initiated by an external entity, such as a creditor, and is usually done through a tribunal. The tribunal is a judicial body that has the power to order the winding up of a company on various grounds, such as: The company is unable to pay its debts. The company’s actions have been detrimental to public order, decency or morality, the security of the state, friendly relations with foreign states, and India’s sovereignty and integrity. The company has been conducting its affairs in a fraudulent or unlawful manner. The company has made a default in filing its financial statements or annual returns for five consecutive financial years. The company has been ordered to be wound up by a tribunal under any other law for the time being in force. The tribunal is of the opinion that it is just and equitable that the company should be wound up. The tribunal can also order the winding up of a company on the application of the Registrar of Companies, the Central Government, the State Government, or a person authorized by the Central Government. The tribunal can appoint a provisional liquidator or a company liquidator to take charge of the company’s affairs and assets, and to carry out the winding up process. The tribunal can also supervise the winding up process and give directions to the liquidator as it deems fit. The tribunal can also make orders for the dissolution of the company, the distribution of the assets, the settlement of claims, the audit of accounts, and the disposal of records. Reasons for Winding Up a Company by the Tribunal Non-Payment of Debts Exceeding Rs 1 Lakh- In situations where a company defaults on its debt payments, and the outstanding debt owed to a creditor surpasses Rs 1 lakh, and remains unpaid for a period of 21 days beyond the due date, or if an execution decree is issued in favor of the creditor, the tribunal is authorised to decree the winding up of the company. Special Resolution for Winding Up- A company may be subject to winding up by the tribunal if it has passed a special resolution authorising such action. Failure of Revival and Rehabilitation for Sick Companies- In the case of financially distressed or “sick” companies where revival and rehabilitation efforts prove unsuccessful, the tribunal has the authority to order the winding up of the company. Fraudulent Formation or Conduct of Business- Should it come to light that a company was established through fraudulent means or if there exists substantiated proof of fraudulent business practices, the tribunal is empowered to issue a directive for the winding up of the company. Unlawful Purpose or Misconduct by Management- Winding up by the tribunal can be necessary if the company was formed for an unlawful purpose, or if the company’s management is involved in misconduct or misfeasance. Tribunal’s Determination for the Good Faith of the Company- The tribunal has the authority to decree the winding up of a company if it determines that such action is essential for the overall health and integrity of the company. Who can be Petitioners for Winding Up of a Company? The right to file a petition for the winding up of a company is granted to various entities as stipulated under Section 272 of the Act. The following parties are eligible to present such a petition: The Company Itself: The company in question has the authority to file a winding-up petition. Shareholders or Contributors: Shareholders or contributors of the company who possess fully paid-up shares also have the authority to instigate the winding-up process by submitting a petition. Contingent or Prospective Creditors: Those creditors whose debts remain unpaid and are either contingent or prospective in nature have the right to file a winding-up petition. Registrar: The registrar responsible for company affairs is empowered to file a winding-up petition. Liquidators: Liquidators appointed for the winding up of a company may file a petition to initiate the process. What are the Related Laws under the Company Act, 2013? The Company Act, 2013 is the main law that governs the winding up of a company by tribunal in India. The Act provides for the following provisions related to the winding up of a company by tribunal: Section Provision 271 Specifies the circumstances under which the tribunal may order the winding up of a company 272 Specifies the persons who may file a petition for the winding up of a company by tribunal, and the form and manner of the petition 273 Specifies the powers of the tribunal to order the winding up of a company or to dismiss the petition or to make any other order as it thinks fit 274 Specifies the directions that the tribunal may give to the company or the creditors or any other person in relation to the winding up petition 275 Specifies the appointment and removal of the provisional liquidator by the tribunal 276 Specifies the effect of the appointment of the provisional liquidator on the powers of the board of directors and the status of the company 277 Specifies the powers and duties of the provisional liquidator 278 Specifies the appointment and removal of the company liquidator by the tribunal 279 Specifies the effect
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