Tag Archives: Reforms

OFFICIAL LIQUIDATORS


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.

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GENERAL PROVISIONS RELATING TO WINDING UP – 3


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.

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CSR Policy; Publication and Reporting


CSR policy of Indian companies may have more similarities than any other thing. Section 135 read with Schedule VII of the companies Act 2013 decide four corner of CSR policy of Indian companies, which is guided by and supplementary to development vision of Government of India.

Corporate Social Responsibility committee is primary body to formulate and recommend the CSR policy and expenditure thereon. The committee also has to monitor CSR policy implementation and logically expenditure thereon. The Board of a company may approve the policy and budget allocation for different aspect of CSR initiatives.

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GENERAL PROVISIONS RELATING TO WINDING UP – 2


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,—

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GENERAL PROVISIONS RELATING TO WINDING UP – 1


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.

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CSR Administration in India


In my recent post on CSR last week, I discussed definition and scope of Corporate Social Responsibility in India after recently notified Rules. Now, I will discuss administration of Corporate Social Responsibility in India.

The Corporate Social Responsibility Committee of the Board of the Company is responsible for administration of Corporate Social Responsibility of the company. The committee shall consist of three or more directors, out of which one shall be an independent director. This provision is equally applicable to all companies including private or small companies.

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COMPANY LIQUIDATOR IN VOLUNTARY WINDING UP


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.

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VOLUNTARY WINDING UP


As we discussed as per section 270 of the Companies Act, 2013, the winding up of a company may be either –

  1. by the Tribunal; or
  2. Voluntary.

CIRCUMSTANCES IN WHICH COMPANY MAY BE WOUND UP VOLUNTARILY (SECTION 304):

A company may be wound up voluntarily,—

  1. if the company in general meeting passes a resolution requiring the company to be wound up voluntarily:
    1. as a result of the expiry of the period for its duration fixed by its articles, or
    2. on the occurrence of any event in respect of which the articles provide that the company should be dissolved; or
    3. the company passes a special resolution that the company be wound up voluntarily.

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Applicability of CSR Law


Newly enacted CSR law is not applicable to all companies. Sub – Section (1) of Section 135 is applicable to all companies; subject to limitation based on its net worth, turnover and net profit. These threshold limits are:

  1. Net worth rupees five hundred crore or more (Rs. 500,00,00,000/-) or rupees five arab
  2. Turnover rupees one thousand crore or more (Rs. 10,00,00,00,000/-) or rupees ten arab
  3. Net Profit rupees five crore of more (Rs. 5,00,00,000/-)

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WINDING UP BY THE TRIBUNAL – 4


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.

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POWER AND DUTIES OF COMPANY LIQUIDATORS AND THEIR BOOKS


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—

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Defining CSR in India


I discussed Corporate Social Responsibility here, when there was a pending Bill. Now, we have a full fledged corporate social responsibility law in place. Section 135 of the companies Act, 2013, redrafted Schedule VII and the Companies (Corporate Social Responsibility Policy) Rules 2014 will be effective from 1st April 2014. I agree with V. Umakanth  in India CorpLaw say, April 1 this year would mark a new era in corporate law and governance in India with companies being required to comply with the quasi-mandatory obligations regarding CSR, an approach that is fairly unique in the global context.

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WINDING UP BY THE TRIBUNAL – 3


In recent post we have discussed Winding up by Tribunal, Company Liquidators and winding up order, Report of Liquidators, Directions and other procedures. We continue provisions related to winding up of a company by Tribunal in this post.

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WINDING UP BY THE TRIBUNAL – 2


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.

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COMPANY LIQUIDATOR and WINDING UP ORDER


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.

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WINDING UP BY TRIBUNAL


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 –

  1. by the Tribunal; or
  2. Voluntary.

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MCA Clarification on Section 185 (14 Feb 2014)


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.

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WINDING UP OF UNREGISTERED COMPANIES


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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COMPANIES AUTHORISED TO REGISTER


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.

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REVIVAL AND REHABILITATION OF SICK COMPANIES


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.

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