Section 357 of Companies Act, 2013 – Commencement of winding up by Tribunal

SECTION 357. COMMENCEMENT OF WINDING UP BY TRIBUNAL

[Effective from 15th December, 2016]

[1][The winding up of a company by the Tribunal under this Act shall be deemed to commence at the time of the presentation of the petition for the winding up.]

Applicable Rules

Companies (Winding Up) Rules, 2020

[Effective from 1st April, 2020]

ATTENDANCE AND APPEARANCE OF CREDITORS AND CONTRIBUTORIES

Rule 126. Attendance at proceedings.—(1) Save as otherwise provided by these rules or by an order of the Tribunal, every person for the time being on the list of contributories of the company and every creditor whose debt has been admitted by the Company Liquidator wholly or in part shall be at liberty at his own expense to attend the proceedings before the Tribunal or before the Company Liquidator and shall be entitled upon payment of the costs occasioned thereby to have notice of all such proceedings as he shall, by request in writing addressed to the Company Liquidator, desire to have notice of; but if the Tribunal shall be of opinion that the attendance of any such person has occasioned any additional costs which ought not to be borne by the funds of the company, it may direct such costs or a gross sum in lieu thereof to be paid by such person and such person shall not be entitled to attend any further proceedings until he had paid the same.

(2) No contributory or creditor shall be entitled to attend any proceedings before the Tribunal, unless and until he or an authorised representative on his behalf has filed an appearance with the Registry and the Registry shall keep an “Appearance Book” in which all such appearances shall be entered.

Rule 127. Representation of creditors and contributories before Tribunal.—The Tribunal may, if it thinks fit, appoint from time to time any one or more of the creditors or contributories to represent before the Tribunal at the expense of the company, all or any class of creditors or contributories upon any question or in relation to any proceedings before the Tribunal, and may remove any person so appointed, if more than one person is appointed under this rule to represent one class, and the persons so appointed, shall employ the same authorised representative to represent them, and where they fail to agree as to the authorised representative to be employed, the Tribunal may nominate an authorised representative for them.

TERMINATION OF WINDING UP

Rule 174. Company Liquidator to apply for dissolution.—After the affairs of the company have been fully wound up and final accounts thereof are audited, the Company Liquidator shall apply to the Tribunal within ten days along with audited final accounts and auditors certificate thereon for orders as to the dissolution of the company.

Rule 175. Dissolution of company.—Upon the hearing of the application, the Tribunal may, after hearing the Company Liquidator and any other person to whom notice may have been ordered by the Tribunal, upon perusing the account as audited, make such orders as it may think fit as to the dissolution of the company, the application, subject to the provisions of the Act, of the balance in the hands of the Company Liquidator or the payment thereof into the Company Liquidation Dividend and Undistributed Assets Account, and the disposal of the books and papers of the company and of the liquidator

Rule 176. Liquidator to pay the balance into Company Liquidation Dividend and Undistributed Assets Account.—Upon an order for dissolution being made, the Company Liquidator shall forthwith pay into the Company Liquidation Dividend and Undistributed Assets Account any unclaimed dividends payable to creditors or undistributed assets refundable to contributories in his hands on the date of the order of dissolution, and such other balance in his hands as he has been directed by the Tribunal to deposit into the Company Liquidation Dividend and Undistributed Assets Account and every order of dissolution shall direct that the Company Liquidator shall forward a certified copy of the order to the Registrar of Companies not later than seven days from the date of the order, and along with the copy of the order shall be filed with the Registrar of Companies, a statement signed by the Company Liquidator that the directions of the Tribunal regarding the application of the balance as per his final account have been duly complied with.

Rule 177. Conclusion of winding up.—The winding up of a company shall, for purposes of section 302, be deemed to be concluded at the date on which the order dissolving the company has been reported by the Company Liquidator to the Registrar of Companies unless any fund or assets of the company remaining unclaimed or undistributed in the hands or under the control of the Company Liquidator, have been distributed, or paid into the Company Liquidation Dividend and Undistributed Assets Account as provided in section 352.

Rule 178. Application to declare dissolution void.—An application under section 356 shall be made upon notice to the Central Government and the Registrar of Companies and where the Tribunal declares the dissolution to have been void, the order shall direct that the applicant shall file a certified copy of the order with the Registrar of Companies not later than twenty-one days from the date of the order

 

 

    [1].   Substituted by the Insolvency and Bankruptcy Code, 2016 (13 of 2016) s. 255 & eleventh schedule for the words “(1) Where, before the presentation of a petition for the winding up of a company by the Tribunal, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the Tribunal, on proof of fraud or mistake, thinks fit to direct otherwise, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken.

(2) In any other case, the winding up of a company by the Tribunal shall be deemed to commence at the time of the presentation of the petition for the winding up.”