39 Winding-Up Application Before Central Govt
(1) Application under Section 361 for Summary Procedure of Winding-Up - For the purpose of clause (ii) of sub section (1) of section 361 of the Act, the classes of company shall be as follows:
(a) One Person Company, or
(b) Small Company.
(2) Application for winding up
(i) Application for winding up by the Company shall be in Form-A with such variations as may be necessary and in any other case it shall be in Form-B with such variations as may be necessary.
(ii) The applicant shall, not less than one month before filing any application in Form A or B as the case may be publish a general notice, at least once, in a daily newspaper published in English and in the principal language of the State or the Union Territory in which the registered office of the company is situated, clearly indicating the substance of the application and stating that any person whose interest is likely to be affected by the proposed application and may intimate to the Central Government (Regional Director) within twenty-one days of the date of publication of that notice, the nature of interest and grounds of opposition, if any.
(3) Application by the Company. Subject to section 271 and 272 of the Act, in case the application is made by the company:
(i) The company shall not less than one month before filing application, serve on each debenture-holder and creditor of the company by registered post or speed post, individual notice indicating the substance of the application and stating that if his interst is likely to be affected by the proposed applicationand may intimate to the Central Government (Regional Director) within twenty-one days of the date of publication of that notice, the nature of interest and grounds of opposition, if any.
(ii) The application shall contain:
(a) a list stating the name and address of the creditors and debenture holders and the amount due to each of them up to the latest practicable date preceding the date of filing of the application which shall not precede the date of filing the application by more than thirty days indicating whether the secured or unsecured creditors and details of the property mortgaged or hypothecated to such secured creditors, if any.
(b). A director of the company shall file an affidavit to the effect that they have made the full enquiry into the affairs of the company and, having done so, have formed the opinion that the list referred above is correct, and the estimated values as given in the list of debt or claims payable on a contingency or not ascertained are proper estimates of the values of such debt and claims included in the list and the same are borne out by the books and records of the company and that there are no other debts, or claims against, the company to their knowledge.
(c). The company shall prove the publication of the notice and service of notice to each of the debenture holder or creditor by an affidavit.
(d). Copy of the audited financial statements for the preceding financial year;
(e) Statement of Affairsin Form 4 made up tothe latest practicable date preceding the date of filing of the application which shall not precede the date of filing the application by more than 30 days; and
(f) Copy of the resolution of the Board of Directors authorizing Board to submit the application; and
(g) copy of the special resolution of the company in terms of clause (b) of sub-section (1) of section 271 of the Act.
(4). Subject to section 271 and 272 of the Act in any other case, the application shall be accompanied by an affidavit to prove the publication of the notice, copy of the latest audited financial statements available in the MCA 21 portal, copy of the charge documents available in the MCA 21 portal and an affidavit to prove the service of notice to the secured creditors whose names are available in the charge documents in the manner provided in clause (i) of sub-rule (3).
(5). Objections to the application. (i) Any person intending to oppose the application shall within twenty-one days from the date of service of publication of the notice, as the case may be, deliver, or cause to be delivered, or send by registered post or speed post, the objections supported by an affidavit, in original, to the Central Government and shall also serve a copy of the objections on the applicant and the company at its registered office if the objector is not the company.
(ii) Where an application for winding up is filed by a person other than the company : - (a) the objection, if any, by the company shall be accompanied with the statement of affairs in Form 4 (b) The Central Government if satisfied that a prima facie case for winding up of the company is made out, direct the company to file its objections along with a statement of its affairs in Form 4 within thirty days of the direction. (c) A company which fails to file statement of affairs, shall forfeit the right to oppose the application and such directors and officers of the company as found responsible for such non compliance, shall be liable for punishment under sub section (4) of section 274 of the Act.
(6). Affidavit in support. Every application shall be accompanied by an affidavit verifying the same and shall be drawn up in the first person and shall state the full name, age, occupation and complete residential address of the deponent and shall be signed by the deponent and sworn before an oath commissioner.
(7). Documents may be attested by the party or the authorized representative or the advocate. Where the application is filed by the authorized representative, Memorandum of Appearance shall be appended to the application as in Form C.
(8). Admission of application and directions - Upon the filing of the application, it shall be listed before the Central Government for admission and consideration of objections received, if any.
(9). Consideration and disposal. The Central Government may upon considering the application, in case where there are no objections, wherever applicable, statement of affairs have been received, and found that the company can be would up through summary procedures, may allow the application and pass a winding up order; in any other case may either dismiss the application or may issue notice to the company or the objector to file a reply or issue, any other direction deemed fit and proper.
(10). Reply of the notice: The objector or the company as the case may be within a period of thirty days from the receipt of notice file a reply to the application for winding up.
(11). Order: Upon considering the application and the reply, if the central government is of the view that;
(A). the grounds for winding up are made out and no further evidence is required it shall pass an order winding up the company;
(B).the grounds for winding up are not made out it shall dismiss the application;
(C).the adjudication of the application involves complex issues of facts and law or the Central Government is of the opinion that summary procedures under the Part IV of Chapter XX is not possible, the Central Government shall return the application, where after, the applicant shall be at liberty to approach the Tribunal. |