Section 275 of Companies Act, 2013 – Company Liquidators and their appointments

SECTION 275. COMPANY LIQUIDATORS AND THEIR APPOINTMENTS

[Effective from 15th December, 2016]

(1) For the purposes of winding up of a company by the Tribunal, the Tribunal at the time of the passing of the order of winding up, shall appoint an Official Liquidator or a liquidator from the panel maintained under sub-section (2) as the Company Liquidator.

(2) The provisional liquidator or the Company Liquidator, as the case may be, shall be appointed from a panel maintained by the Central Government consisting of the names of chartered accountants, advocates, company secretaries, cost accountants or firms or bodies corporate having such chartered accountants, advocates, company secretaries, cost accountants and such other professionals as may be notified by the Central Government or from a firm or a body corporate of persons having a combination of such professionals as may be prescribed and having at least ten years’ experience in company matters.

(3) Where a provisional liquidator is appointed by the Tribunal, the Tribunal may limit and restrict his powers by the order appointing him or it or by a subsequent order, but otherwise he shall have the same powers as a liquidator.

(4) 1. [***]

(5) The terms and conditions of appointment of a provisional liquidator or Company Liquidator and the fee payable to him or it shall be specified by the Tribunal on the basis of task required to be performed, experience, qualification of such liquidator and size of the company.

(6) On appointment as provisional liquidator or Company Liquidator, as the case may be, such liquidator shall file a declaration within seven days from the date of appointment in the prescribed form disclosing conflict of interest or lack of independence in respect of his appointment, if any, with the Tribunal and such obligation shall continue throughout the term of his appointment.

(7) While passing a winding up order, the Tribunal may appoint a provisional liquidator, if any, appointed under clause (c) of sub-section (1) of section 273, as the Company Liquidator for the conduct of the proceedings for the winding up of the company.

Applicable Rules

Companies (Winding Up) Rules, 2020

[Effective from 1st April, 2020]

LIQUIDATOR

Rule 13. Applicability.—Unless specified otherwise, the rules hereinafter shall apply to all types of liquidators.

Rule 14. Appointment of provisional liquidator or Company Liquidator.—

(1) After the admission of a petition for the winding up of a company by the Tribunal, and upon proof by affidavit of sufficient ground for the appointment of a provisional liquidator, the Tribunal, if it thinks fit, and upon such terms and conditions as in the opinion of the Tribunal shall be just and necessary, may appoint a provisional liquidator of the company, pending final orders on the winding up petition, in pursuance of clause (c) of sub-section (1) of section 273, and where the company is not the applicant, notice of the application for appointment of provisional liquidator shall be given to the company in Form WIN 7 and the company shall be given a reasonable opportunity to make its representation unless the Tribunal, for reasons to be recorded in writing, dispenses with such notice.

(2) The order appointing the provisional liquidator shall set out the restrictions and limitations, if any, on his powers imposed by the Tribunal in accordance with the sub-section (3) of section 275 and the order shall be in Form WIN 8, with such variations as may be necessary.

(3) An order for the appointment of a provisional liquidator as passed in accordance with clause (c) of subsection (1) of section 273 shall also state that it will be the duty of every person, who is in possession of any property, books or papers, cash or any other assets of the company, including the benefits derived therefrom, to surrender forthwith such property, books or papers, cash or other assets and the benefits so derived, as the case may be, to the provisional liquidator.

(4) Where an order for the appointment of provisional liquidator or Company Liquidator, as the case may be, has been made, the Registrar shall, as provided in sub section (1) of section 277 within a period not exceeding seven days from the date of passing of the order, send intimation to the Company Liquidator or provisional liquidator in Form WIN 9 by registered post or by speed post or by courier service or by electronic means and a copy of the order for the appointment of provisional liquidator or Company Liquidator, as the case may be, shall also be sent to the Registrar of Companies together with a copy of the petition and the affidavit, if any, filed in support thereof.

(5) The provisional liquidator or the Company Liquidator, as the case may be appointed by the Tribunal shall file a declaration in Form WIN 10 disclosing conflict of interest or lack of independence in respect of his appointment, if any, with the Tribunal within seven days from the date of appointment.

(6) The provisional liquidator or the Company Liquidator, as the case may be shall be appointed by the Tribunal from amongst the insolvency professionals registered under the Insolvency and Bankruptcy Code, 2016 (31 of 2016) unless the official liquidator is appointed.

Rule 15. Rules applicable to provisional liquidator.—The rules relating to Company Liquidators shall apply to provisional liquidators, so far as applicable, subject to such directions as the Tribunal may give in each case.

Rule 16. Costs, etc., of provisional liquidator.—Subject to any order of the Tribunal, all the costs, charges and expenses incurred by the provisional liquidator shall be paid out of the assets of the company and if the company does not have sufficient assets or any assets to pay the costs, charges and expenses, the Tribunal may make appropriate orders in this regard.

Rule 21. Declaration by Company Liquidator.—The declaration by the Company Liquidator regarding disclosing conflict of interest or lack of independence, if any, in respect of his appointment as Company Liquidator as referred to in sub-section (6) of section 275 shall be filed in Form WIN 10 with the Tribunal

 

1. Omitted by the Insolvency and Bankruptcy Code, 2016 (13 of 2016), s. 255 & eleventh schedule