Section 296 of Companies Act, 2013 – Power of Tribunal to make calls

SECTION 296. POWER OF TRIBUNAL TO MAKE CALLS

[Effective from 15th December, 2016]

The Tribunal may, at any time after the passing of a winding up order, and either before or after it has ascertained the sufficiency of the assets of the company,—

(a)   make calls on all or any of the contributories for the time being on the list of the contributories, to the extent of their liability, for payment of any money which the Tribunal considers necessary to satisfy the debts and liabilities of the company, and the costs, charges and expenses of winding up, and for the adjustment of the rights of the contributories among themselves; and

(b)   make an order for payment of any calls so made.

Applicable Rules

Companies (Winding Up) Rules, 2020

[Effective from 1st April, 2020]

CALLS IN WINDING UP BY TRIBUNAL

Rule 131. Calls by Company Liquidator.—Subject to the provisions of sub-sections (2) of section 465, the Tribunal may by order grant leave to the Company Liquidator to make calls referred to in section 296.

Rule 132. Company Liquidator to realise uncalled capital.—Notwithstanding any charge or encumbrance on the uncalled capital of the company, the Company Liquidator shall be entitled to call and realise the uncalled capital of the company and to collect the arrears, if any, due on calls made prior to the winding up, but shall hold all moneys so realised subject to the rights, if any, of the holder of any such charge or encumbrance.

Rule 133. Application for leave to make call.—(1) The Company Liquidator shall not make any call without obtaining the leave of the Tribunal for the purpose. (2) Within seven days of the settlement of the list of contributories, the Company Liquidator may apply to the Tribunal for leave to make a call on the contributories and the application shall state the proposed amount of such call and shall be in Form WIN 52which shall be supported by the affidavit of the Company Liquidator which shall be in Form WIN 53.

Rule 134. Notice of application.—(1) Notice of an application for leave to make a call shall be served on every contributory proposed to be included in such call, by post under certificate of posting so as to reach such contributory, in the ordinary course of post not less than seven clear days before the date appointed for the hearing thereof, or if the Tribunal so directs, notice of the application may be given by advertisement in Form WIN 54 , in newspapers as the Tribunal may direct, not less than seven clear days before the date appointed for the hearing, without a separate notice to each contributory. (2) The affidavit of service relating to the dispatch of notice to each contributory, or to the advertisement, as the case may be, shall be filed in the Tribunal three days before the date fixed for the hearing.

Rule 135. Order granting leave to make call and document making call.—The order granting leave to make a call shall be in Form WIN 55, and shall contain directions as to the time within which such calls shall be paid and when an order has been made granting leave to make a call, the Company Liquidator shall file in Tribunal, document making the call in Form WIN 56 with such variations as circumstances may require.

Rule 136. Service of notice of call.—Immediately after filing the document making the call as referred to in rule 135, the Company Liquidator shall serve by registered post or speed post or in electronic mode, a copy of the order granting leave to make the call upon each of the contributories included in such call together with a notice in Form WIN 57 specifying the amount or balance due from such contributory in respect of such call and the order granting leave to make a call need not be advertised unless the Tribunal otherwise orders for any special reason.

Rule 137. Order for payment of call.—The Company Liquidator may apply to the Tribunal for an order against any contributory or contributories for payment of moneys due on the calls made by him and the application shall be made in Form WIN 58 supported by an affidavit in Form WIN 59 and notice of the application together with a copy of the affidavit shall be served on the contributory by registered post or speed post not less than seven days before the date fixed for the hearing of the application, and the order for payment shall be in Form WIN 60.

Rule 138. Other moneys due by contributories.—When any money is due to the company from a contributory or from the estate of the person whom he represents, other than moneys due on calls made subsequent to the winding up but including moneys due on calls made prior to the winding up the Company Liquidator may make an application to the Tribunal supported by an affidavit for an order against such contributory for the payment of such moneys and the notice of the application shall be given to such contributory by registered post or speed post not less than seven days prior to the date fixed for the hearing of the application.