In recent post we have discussed Winding up by Tribunal, Company Liquidators and winding up order, Report of Liquidators, Directions, other procedures and dissolution of company. We continue provisions related to winding up of a company by Tribunal in this post.
POWER AND DUTIES OF COMPANY LIQUIDATORS (SECTION 290):
The Company Liquidator, in a winding up of a company by the Tribunal, shall have the power—
(a) to carry on the business of the company so far as may be necessary for the beneficial winding up of the company;
(b) to do all acts and to execute, in the name and on behalf of the company, all deeds, receipts and other documents, and for that purpose, to use, when necessary, the company’s seal;
(c) to sell the immovable and movable property and actionable claims of the company by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels;
(d) to sell the whole of the undertaking of the company as a going concern;
(e) to raise any money required on the security of the assets of the company;
(f) to institute or defend any suit, prosecution or other legal proceeding, civil or criminal, in the name and on behalf of the company;
(g) to invite and settle claim of creditors, employees or any other claimant and distribute sale proceeds in accordance with priorities established under this Act;
(h) to inspect the records and returns of the company on the files of the Registrar or any other authority;
(i) to prove rank and claim in the insolvency of any contributory for any balance against his estate, and to receive dividends in the insolvency, in respect of that balance, as a separate debt due from the insolvent, and rateably with the other separate creditors;
(j) to draw, accept, make and endorse any negotiable instruments including cheque, bill of exchange, hundi or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if such instruments had been drawn, accepted, made or endorsed by or on behalf of the company in the course of its business;
(k) to take out, in his official name, letters of administration to any deceased contributory, and to do in his official name any other act necessary for obtaining payment of any money due from a contributory or his estate which cannot be conveniently done in the name of the company, and in all such cases, the money due shall, for the purpose of enabling the Company Liquidator to take out the letters of administration or recover the money, be deemed to be due to the Company Liquidator himself;
(l) to obtain any professional assistance from any person or appoint any professional, in discharge of his duties, obligations and responsibilities and for protection of the assets of the company, appoint an agent to do any business which the Company Liquidator is unable to do himself;
(m) to take all such actions, steps, or to sign, execute and verify any paper, deed, document, application, petition, affidavit, bond or instrument as may be necessary,—
(i) for winding up of the company;
(ii) for distribution of assets;
(iii) in discharge of his duties and obligations and functions as Company Liquidator; and
(n) to apply to the Tribunal for such orders or directions as may be necessary for the winding up of the company.
The exercise of powers by the Company Liquidator shall be subject to the overall control of the Tribunal.
The Company Liquidator shall perform such other duties as the Tribunal may specify in this behalf.
PROVISION FOR PROFESSIONAL ASSISTANCE TO COMPANY LIQUIDATOR (SECTION 291):
The Company Liquidator may, with the sanction of the Tribunal, appoint one or more chartered accountants or company secretaries or cost accountants or legal practitioners or such other professionals on such terms and conditions, as may be necessary, to assist him in the performance of his duties and functions under this Act.
Any person appointed under this section shall disclose forthwith to the Tribunal any conflict of interest or lack of independence in respect of his appointment.
EXERCISE AND CONTROL OF COMPANY LIQUIDATOR’S POWERS (SECTION 292):
In the administration of the assets of the company and the distribution thereof among its creditors, the Company Liquidator shall have regard to any directions which may be given by the resolution of the creditors or contributories at any general meeting or by the advisory committee.
Any directions given by the creditors or contributories at any general meeting shall, in case of conflict, be deemed to override any directions given by the advisory committee.
The Company Liquidator—
(a) may summon meetings of the creditors or contributories, whenever he thinks fit, for the purpose of ascertaining their wishes; and
(b) shall summon such meetings at such times, as the creditors or contributories, as the case may be, may, by resolution, direct, or whenever requested in writing to do so by not less than one-tenth in value of the creditors or contributories, as the case may be.
Any person aggrieved by any act or decision of the Company Liquidator may apply to the Tribunal, and the Tribunal may confirm, reverse or modify the act or decision complained of and make such further order as it thinks just and proper in the circumstances.
BOOKS TO BE KEPT BY COMPANY LIQUIDATOR (SECTION 293):
The Company Liquidator shall keep proper books in which he shall cause entries or minutes to be made of proceedings at meetings and of such other matters as may be prescribed.
Any creditor or contributory may, subject to the control of the Tribunal, inspect any such books, personally or through his agent.
AUDIT OF COMPANY LIQUIDATORS ACCOUNTS (SECTION 294):
The Company Liquidator shall maintain proper and regular books of account including accounts of receipts and payments made by him.
The Company Liquidator shall, at such times as may be prescribed but not less than twice in each year during his tenure of office, present to the Tribunal an account of the receipts and payments as liquidator in duplicate, which shall be verified by a declaration.
The Tribunal shall cause the accounts to be audited and for the purpose of the audit, the Company Liquidator shall furnish to the Tribunal with such vouchers and information as the Tribunal may require, and the Tribunal may, at any time, require the production of, and inspect, any books of account kept by the Company Liquidator.
When the accounts of the company have been audited, one copy thereof shall be filed by the Company Liquidator with the Tribunal, and the other copy shall be delivered to the Registrar which shall be open to inspection by any creditor, contributory or person interested.
Where an account relates to a Government company, the Company Liquidator shall forward a copy thereof—
(a) to the Central Government, if that Government is a member of the Government company; or
(b) to any State Government, if that Government is a member of the Government company; or
(c) to the Central Government and any State Government, if both the Governments are members of the Government company.
The Company Liquidator shall cause the accounts when audited, or a summary thereof, to be printed, and shall send a printed copy of the accounts or summary thereof by post to every creditor and every contributory. The Tribunal may dispense with the compliance of this provision.
We will discuss other provisions related to winding up in future posts.
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