Part-II
Winding-up by Tribunal
5 Winding-Up Petition and its Hearing
(1) Petition for winding-up along with the statement of affairs: For the purposes of sub-section (1) of section 272, a petition for winding-up of a company shall be presented in Form No. 1, 2, or 3, as the case may be, with such variations as circumstances may require, and shall be presented in triplicate. If the petition is made by the company, it shall be accompanied with the statement of its affairs in Form No. 4 as required under sub-section (5) of section 272 and shall state the facts up to the date which shall not be a date more than fifteen days prior to the date of making of the statement. This statement shall be duly certified by a Chartered Accountant in practice. The fee for filing the petition shall be as prescribed in Annexure-B
(2) Admission of petition and directions as to advertisement - Upon the filing of the petition, it shall be listed before the Tribunal for admission and fixing a date for its hearing and for directions as to the advertisements to be published and the persons, if any, upon whom copies of the petition are to be served. Where a petition has been filed by a person other than the company, the Tribunal shall if it thinks fit, direct notice to be given to the company and give an opportunity of being heard, before giving directions as to the advertisement of the petition.
(3) Petition by a contingent or prospective creditor -
(i) A contingent or prospective creditor is one who is able to prove that he has a bonafide and prima facie case to establish his claim to the satisfaction of the Tribunal and his application shall be in accordance with sub-section (6) of section 272 to seek the leave of the Tribunal for the admission of the petition in Form No. 5. along with the fees as prescribed in Annexure -B
Provided that no leave shall be granted, unless in the opinion of the Tribunal there is a prima facia case for winding up of the company and until such security for costs has been given as the Tribunal thinks reasonable.
(ii) No advertisement of the petition shall be made unless the leave has been granted, or where the leave has been granted subject to any conditions precedent to the admission of the petition, unless such conditions have been satisfied.
(4) Copy of petition to be furnished - Every contributory or creditor of the company shall be entitled to be furnished by the petitioner or by his authorized representative with a copy of the petition. In case such copy is not so provided, the contributory or creditor may apply to the Registry of the Tribunal, which shall provide an electronic copy on payment of fee as prescribed in Annexure-B
(5) Advertisement of petition - Subject to directions of the Tribunal, the petition shall be advertised in not less than fourteen days before the date fixed for hearing in one daily newspaper in English language and one daily newspaper in the principal regional language circulating in the state or union territory where the registered office of the Company is situated. The advertisement shall be in Form No. 6.
(6) Application for withdrawal of petition -
(i) The Tribunal may allow to withdraw the petition subject to such orders including about costs as may be considered appropriate.
(ii) An application to withdraw a petition for winding-up which has been advertised in accordance with the provisions of Rule 5 shall not be considered at any time before the date fixed in the advertisement for the hearing of the petition.
(7) Substitution of creditor or contributory for original petitioner
Where a petitioner -
(i) is not entitled to present a petition, or
(ii) fails to advertise his petition within the time prescribed by these rules or by order of the Tribunal, or
(iii) consents to withdraw the petition, or to allow it to be dismissed, or the hearing to be adjourned or fails to appear in support of his petition when it is called on in Tribunal on the day originally fixed for the hearing thereof, or any day to which the hearing has been adjourned, or
(iv) if appearing, does not apply for an order in terms of the prayer of his petition, or,
(v) where in the opinion of the Tribunal there is other sufficient cause for an order being made under this rule,
the Tribunal may, upon such terms as it may think just, substitute as petitioner any creditor or contributory who, in the opinion of the Tribunal, would have a right to present a petition, and who is desirous of prosecuting the petition.
(8) Affidavit-in-Opposition: - (i) Subject to section 274 of the Act, any Affidavit intended to be used in opposition of the petition shall be filed not less than five days before the date fixed for hearing of the petition, and a copy of the affidavit shall be served on the petitioner or his authorized representative forthwith.
(ii) For the purposes of sub section (1) of section 274 of the Act, where a petition for winding up is filed before the Tribunal by any person other than the Company, the Tribunal shall, if satisfied that a prime-facie case for winding up has been made out, by an order direct the company to file its objections through an affidavit along with statement of affairs in Form No. 4 within 30 days of the order. Copy of the affidavit along with the statement of affairs shall be served on the petitioner or his authorized representative forthwith.
(iii) Copies of the affidavit shall also be given to any creditor or contributory appearing in support of the petition, who may require the same, on payment of the prescribed charges/fees.
(9) Affidavit in reply: - A rejoinder intended to be used in reply to the affidavit filed in opposition to the petition shall be filed not less than two days before the date fixed for hearing of the petition, and a copy of the rejoinder to reply shall be served on the day of filing thereof on the person by whom the affidavit in opposition was filed or his authorized representative.
(10) Procedure on substitution - Where the Tribunal makes an order substituting a creditor or contributory as petitioner in a winding-up petition, it shall adjourn the hearing of the petition to a date to be fixed by the Tribunal and direct such amendments of the petition as may be necessary. Such creditor or contributory shall, within seven days from the making of the order, amend the petition accordingly, and file two amended copies thereof together with an affidavit in duplicate setting out the grounds, on which he supports the petition. The amended petition shall be treated as the petition for the winding-up of the company and shall be deemed to have been presented on the date on which the original petition was presented. |