Here, we will discuss provisions related to Official Liquidator.
APPOINTMENT OF OFFICIAL LIQUIDATOR (SECTION 359)
For the purposes of this Act, so far as it relates to the winding up of companies by the Tribunal, the Central Government may appoint as many Official Liquidators, Joint, Deputy or Assistant Official Liquidators as it may consider necessary to discharge the functions of the Official Liquidator.
We will continue to discuss general provisions relating to winding up in this post also.
Certain limited powers of Company Liquidator (Section 343)
(1) The Company Liquidator may—
(a) with the sanction of the Tribunal, when the company is being wound up by the Tribunal; and
(b) with the sanction of a special resolution of the company and prior approval of the Tribunal, in the case of a voluntary winding up,—
(i) pay any class of creditors in full;
(ii) make any compromise or arrangement with creditors or persons claiming to be creditors, or having or alleging themselves to have any claim, present or future, certain or contingent, against the company, or whereby the company may be rendered liable; or
(iii) compromise any call or liability to call, debt, and liability capable of resulting in a debt, and any claim, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or alleged to subsist between the company and a contributory or alleged contributory or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or liabilities or the winding up of the company and take any security for the discharge of any such call, debt, liability or claim, and give a complete discharge in respect thereof.
We will continue to discuss general provisions relating to winding up in this post also.
OFFENCE BY OFFICERS OF COMPANIES IN LIQUIDATION (SECTION 336):
If any person, who is or has been an officer of a company which, at the time of the commission of the alleged offence, is being wound up, whether by the Tribunal or voluntarily, or which is subsequently ordered to be wound up by the Tribunal or which subsequently passes a resolution for voluntary winding up,—
Now, we will discuss general provisions related to winding up applicable to every mode of winding up.
DEBTS OF ALL DESCRIPTIONS TO BE ADMITTED TO PROOF (SECTION 324):
In every winding up (subject, in the case of insolvent companies, to the application in accordance with the provisions of this Act or of the law of insolvency), all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency, or may sound only in damages, or for some other reason may not bear a certain value.
In continuation of our discussion about voluntary winding up, we will discuss on company liquidator in voluntary winding up.
APPOINTMENT OF COMPANY LIQUIDATOR (SECTION 310):
The company in its general meeting, where a resolution of voluntary winding up is passed, shall appoint a Company Liquidator from the panel prepared by the Central Government for the purpose of winding up its affairs and distributing the assets of the company and recommend the fee to be paid to the Company Liquidator.
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged Appointment of Company Liquidator, Companies Act 2013, Companies Bill 2012, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Dissolution of Company, Duties of Company Liquidator, Final Meeting, India, Legal Reforms, Ministry of corporate affairs, Power of Company Liquidator, Reforms, Removable of Company Liquidator, Voluntary winding up, Winding Up
As we discussed as per section 270 of the Companies Act, 2013, the winding up of a company may be either –
CIRCUMSTANCES IN WHICH COMPANY MAY BE WOUND UP VOLUNTARILY (SECTION 304):
A company may be wound up voluntarily,—
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged commencement of voluntary winding up, Companies Act 2013, Companies Bill 2012, CorpGov, CorpLaw, Corporate Governance, Corporate Law, declaration of solvency, effect of voluntary winding up, India, Legal Reforms, Meeting of Creditors, Ministry of corporate affairs, Reforms, Voluntary winding up, Winding Up
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.
PAYMENT OF DEBTS BY CONTRIBUTORY AND EXTENT OF SET – OFF (SECTION 295):
The Tribunal may, at any time after passing of a winding up order, pass an order requiring any contributory for the time being on the list of contributories to pay, in the manner directed by the order, any money due to the company, from him or from the estate of the person whom he represents, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Act.
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged Appeals, Arrest of Person, Calls, Companies Act 2013, Companies Bill 2012, Company Liquidators, Contributories, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Examination of Promoters and Directors, India, Interim Liquidator, Legal Reforms, Ministry of corporate affairs, Official Liquidator, Payment of Debts by Contributories, Persons having Property of Company, Reforms, Set off by Contributories, Winding Up, winding up by Tribunal, winding up of a company
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—
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged Audits of Books of Company Liquidators, Books of Company Liquidator, Companies Act 2013, Companies Bill 2012, Company Liquidators, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Duties of Company Liquidator, India, Interim Liquidator, Legal Reforms, Ministry of corporate affairs, Official Liquidator, Power of Company Liquidator, Professional Assistance to Company Liquidator, Reforms, Winding Up, winding up by Tribunal, winding up of a company
In recent post we have discussed Winding up by Tribunal, Company liquidator and winding up order. We continue provisions related to winding up of a company by Tribunal in this post.
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged Companies Act 2013, Companies Bill 2012, Company Liquidators, Company Property, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Custody of Company Property, India, Inspection of Report of Liquidator, Interim Liquidator, Investigation, Legal Reforms, Ministry of corporate affairs, Notice of discharge, Official Liquidator, Reforms, Report of Liquidator, Sale Committee, Winding Up, winding up by Tribunal, winding up of a company
In last post we discussed some provisions related to winding up by the Tribunal. In this post we will focus on Company liquidator. We will continue to discuss about winding in some future posts.
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged Appointment of Liquidator, Companies Act 2013, Companies Bill 2012, Company Liquidators, CorpGov, CorpLaw, Corporate Governance, Corporate Law, India, Interim Liquidator, Jurisdiction of Tribunal, Legal Reforms, Ministry of corporate affairs, Notice of discharge, Official Liquidator, Reforms, Winding Up, winding up by Tribunal, Winding up Committee, winding up of a company, Winding up Order
Proper winding up of a company is certainly more important than its incorporation. The ghost of a company should not haunt after attaining or discarding objects of the company.
MODES OF WINDING – UP (SECTION 270):
The winding up of a company may be either –
Posted in Chapter XX - CA2013, Companies Act 2013
Tagged Companies Act 2013, Companies Bill 2012, Company Liquidators, CorpGov, CorpLaw, Corporate Governance, Corporate Law, debt, India, Legal Reforms, Ministry of corporate affairs, Petition for winding up, Reforms, Statement of Affairs, Winding Up, winding up by Tribunal, winding up of a company
Ministry of corporate Affairs has issued a General Circular on 14th February 2014. My readers can download this Circular from MCA site link here.
We have already discussed Section 185 in one of the earlier post here.
The Section under discussion basically says, No company shall, directly or indirectly, advance any loan, including any loan represented by a book debt, to any of its directors or to any other person in whom the director is interested or give any guarantee or provide any security in connection with any loan taken by him or such other person.
Posted in Chapter XII - CA2013, Companies Act 2013
Tagged Companies Act 2013, Companies Bill 2012, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Directors, Guarantee, India, Investment, Key managerial personnel, Legal Reforms, Loan, Loan to Directors, Ministry of corporate affairs, Reforms, Subsidiary Company
Part – II of the Chapter XXI deals with winding up of unregistered companies.
UNREGISTERED COMPANY (EXPLANATION TO SECTION 375):
“unregistered company”—
(a) shall not include— (i) a railway company incorporated under any Act of Parliament or other Indian law or any Act of Parliament of the United Kingdom; (ii) a company registered under this Act; or (iii) a company registered under any previous companies law and not being a company the registered office whereof was in Burma, Aden, Pakistan immediately before the separation of that country from India; and
(b) save as aforesaid, shall include any partnership firm, limited liability partnership or society or co-operative society, association or company consisting of more than seven members at the time when the petition for winding up the partnership firm, limited liability partnership or society or co-operative society, association or company, as the case may be, is presented before the Tribunal.
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Posted in Chapter XXI - CA2013, Companies Act 2013
Tagged Companies Act 2013, Companies Bill 2012, Cooperative Society, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Foreign Company, India, Legal Reforms, Limited Liability Partnership, Ministry of corporate affairs, Partnership Firm, Reforms, Society, Unregistered Company, Winding Up, winding up of unregistered company
Part – I of Chapter XXI deals with companies authorizes to register under this Companies Act, 2013.
[Note: This is updated version of the post with the law updated as on 5th July 2018]
COMPANIES CAPABLE OF BEING REGISTERED (SECTION 366):
For the purpose of this Part, the “company” includes any partnership firm, limited liability partnership, cooperative society, society or any other business entity formed under any other law for the time being in force which applied for registration under this Part.
Posted in Chapter XXI - CA2013, Companies Act 2013
Tagged Companies Act 2013, Companies Bill 2012, Cooperative Society, CorpGov, CorpLaw, Corporate Governance, Corporate Law, India, Legal Reforms, Limited Liability Partnership, Ministry of corporate affairs, Partnership Firm, Reforms, Registration, Society
In last post, we discussed sick companies. Now, we will discuss revival and rehabilitation.
SCHEME OF REVIVAL AND REHABILITATION (SECTION 261):
The company administrator shall prepare or cause to be prepared a scheme of revival and rehabilitation of the sick company after considering the draft scheme filed along with the application under Section 254.
Posted in Chapter XIX -CA2013, Companies Act 2013
Tagged committee of creditors, Companies Act 2013, Companies Bill 2012, Company Administrator, CorpGov, CorpLaw, Corporate Governance, Corporate Law, India, Interim Administrator, Legal Reforms, Ministry of corporate affairs, Reforms, Revival and Rehabilitation, Scheme of Revival and Rehabilitation, Sick company, The Rehabilitation and Insolvency Fund, Winding Up
This chapter may and will replace the provisions of Sick Industrial Companies (Special Provisions) Act, 1985. We may note this chapter has much wider impact then earlier Act of 1985.
SICK COMPANIES (SUB – SECTION 1 OF SECTION 253):
Where on a demand by the secured creditors of a company representing fifty percent or more of its outstanding amount of debt, the company has failed to pay the debt within a period of thirty days of the service of the notice of demand or to secure or compound it to the reasonable satisfaction of the creditors, any secured creditor may file an application to the Tribunal in the prescribed manner along with the relevant evidence for such default, non-repayment or failure to offer security or compound it, for a determination that the company be declared as a sick company.
Posted in Chapter XIX -CA2013, Companies Act 2013
Tagged committee of creditors, Companies Act 2013, Companies Bill 2012, Company Administrator, CorpGov, CorpLaw, Corporate Governance, Corporate Law, India, Interim Administrator, Legal Reforms, Ministry of corporate affairs, Reforms, Revival and Rehabilitation, Sick company
In this Post we will discuss provision of Section 456 – 470 of the Companies Act, 2013.
Posted in Chapter XXIX - CA2013, Companies Act 2013
Tagged Amendment to Schedules, Annual Report by Central Government, Approvals, Companies Act 2013, Companies Bill 2012, Condonation of Delay, CorpGov, CorpLaw, Corporate Governance, Corporate Law, Delegation of Power, India, Information, Legal Reforms, Ministry of corporate affairs, Power to make Rules, PROHIBITION OF ASSOCIATION OR PARTNERSHIP EXCEEDING CERTAIN NUMBER, Reforms
One might say the Companies Act, 2013 is more about dealing with corporate fraud than regulating companies. Section 447 is most talk about provision of this Act and many sections refer to this section directly.
Special courts are one most commendable constitute introduced by this Act. This is trend recently to constitute special courts for every single legal constitute. The main reason for establishment of such special court is technicalities involved in these technical matters.
Posted in Chapter XXVIII - CA2013, Companies Act 2013, Governance and Responsibility
Tagged Companies Act 2013, Companies Bill 2012, Company Prosecutor, CorpGov, CorpLaw, Corporate Governance, Corporate Law, India, Legal Reforms, Mediation and Conciliation Penal, Ministry of corporate affairs, Reforms, Special Court
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AishMGhrana 