Ch-10 Winding-Up Rev

Revision Module (SCANNER)

Chapter 10: Winding Up
10

Question & Answers

Q Sections Topics Done
Circumstances under which Company can be wound up & Application
1 271 & 7 of IBC
for Corporate Insolvency Resolution Process
2 274 Directions for Filing Statement of Affairs
3 281 Submission of Report by Company Liquidator
4 285 Settlement of List of Contributories
5 285 Settlement of List of Contributories
6 294 Audit of Company Liquidator’s Accounts
7 326 Overriding Preferential Payments
10 326 & 327 Overriding Preferential Payments & List of Preferential Payments
11 328 Fraudulent Preference
14 329 & 332 Transfers not in Good Faith to be Void & Effect of Floating Charge
15 285 Contributory
16 332 Effect of Floating Charge
17 333 Disclaimer of Onerous Property
18 340 Power of Tribunal to Assess Damages Against Delinquent Directors, etc.
19 348 Information as to Pending Liquidations
20 348 Information as to Pending Liquidations
21 ‐ Loss of Substratum of Company and Winding Up
22 ‐ Obsolete
23 271 & 273 Validity of RoC’s action
24 338 Failure to maintain proper books of accounts

Case Laws Summary Chart

Sl No. Case Law Summary
1 Re German Date Coffee Co.
In Re German Date Coffee Co., where a company was formed for the purpose of coffee from dates
under a patent which was to be granted by the Government of Germany. The German patent was
never granted. On a petition of a shareholder it was held that the substratum of the company had
failed and it was impossible to carry on the object for which it was formed. Therefore, it was just
and equitable that the company be wound up.
© Siddharth Agarwal. All Rights Reserved.
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Siddharth Agarwal Classes

Question 1 – Circumstances under which Company can be wound up – 271 & Application for Corporate
Insolvency Resolution Process – 7 of IBC
The Registrar of Companies, Mumbai filed a petition in the Bombay High Court for compulsory winding up
of ‘Constant Overtrading Ltd’ on the ground that a perusal of the Balance Sheet of the company as at 31‐
03‐2009 revealed that its liabilities far exceeded the assets and consequently the company is unable to pay
its debts. Examine with reference to the provisions of the Company Act, 2013 & IBC Code 2016, the various
factors the High Court will take into account before the company is ordered to be wound up compulsorily
and whether there is any justification in the present case for the Court to order winding up of the company.

Answer
1. ROC can file a petition for winding up only u/s 271 (b,c,d) which does not include the ground “unable to
pay its debts”. Hence ROC cannot file the petition for winding up.
2. However, the creditors have the power to file application for initiating corporate insolvency resolution
process u/s 7 of the IBC Code 2016. The relevant provision is produced below.

Filing of A financial creditor either by itself or jointly with other financial creditors may file an
application application for initiating corporate insolvency resolution process against a corporate
before debtor before the Adjudicating Authority when a default has occurred.
adjudicating A default includes a default in respect of a financial debt owed not only to the applicant
authority: financial creditor but to any other financial creditor of the corporate debtor.

Furnishing of The financial creditor shall, along with the application furnish—
information: a) record of the default recorded with the information utility or such other record or
evidence of default as may be specified;
b) the name of the resolution professional proposed to act as an interim resolution
professional; and
c) any other information as may be specified by the Board.

Conclusion
One can clearly observe that NCLT shall admit the application only if there is a default and not on the ground
that its liabilities far exceeded the assets.
NCLT will take into account whether the company has failed to meet any of the demands made by the
creditors etc.

Question 2 ‐ Directions for Filing Statement of Affairs ‐ 274
Explain the provisions of the Companies Act, 2013 relating to preparation and filing of Statement of Affairs
(SA) in case of winding of a company by the Court, with regard to the following aspects:
(i) Who is required to prepare and file SA and whether cost and expenses incurred in preparing SA are
recoverable?
(ii) Contents of SA and the period within which the same is required to be submitted and to whom? Also
state about delay in filing SA and upto what period the same is allowed. (4 Marks) (May 2016)

Answer
This is based on Section 274 of Companies Act 2013. The answer has changed drastically under the new law,
hence many questions asked in the above case become redundant.
The Section is reproduced for your reference.

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Section
274 Directions for Filing Statement of Affairs

Topic Detailed Discussion
Section 274(1) Tribunal orders the Company to File Objections along with the SOA
Where a petition for winding up is filed before the Tribunal by any person other than
the company, the Tribunal shall, if satisfied that a prima facie case for winding up of
the company is made out, by an order direct the company to file its objections along
with a statement of its affairs within 30 days of the order.

Provided that the Tribunal may allow a further period of 30 days in a situation of
contingency or special circumstances.

Provided further that the Tribunal may direct the petitioner to deposit such security
for costs as it may consider reasonable as a precondition to issue directions to the
company.
.
Section 274(2) Consequence of Failure to File SOA
A company, which fails to file the statement of affairs as referred to in sub‐section (1),
shall forfeit the right to oppose the petition and such directors and officers of the
company as found responsible for such non‐compliance, shall be liable for punishment
under sub‐section (4).

Section 274(3) Submission of Books of Accounts
The directors and other officers of the company, in respect of which an order for
winding up is passed by the Tribunal shall, within a period of 30 days of such order,
submit, at the cost of the company, the books of account of the company completed
and audited up to the date of the order, to the liquidator.

Section 274(4) Punishment for Contravention
If any director or officer of the company contravenes the provisions of this section, the
director or the officer of the company who is in default shall be punishable as follows:

` 25,000 ≤ Penalty ≤ ` 5,00,000
or
On Officer in default
Imprisonment ≤ 6 months
or Both

Question 3 ‐ Submission of Report by Company Liquidator ‐ 281
A listed Public Company was ordered to be wound up by the order of the Bombay High Court. While ordering
the winding up, the Court ordered the Official Liquidator to submit a preliminary report to the Court as per
the provisions contained in the Companies Act. Referring to the provisions of the Companies Act, 2013,
state briefly the details to be given in the preliminary report of the Official Liquidator.

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Answer

Section
281 Submission of Report by Company Liquidator

Section 281(1) Contents of Report of Company Liquidator
Where the Tribunal has made a winding up order or appointed a Company Liquidator,
such liquidator shall, within 60 days from the order, submit to the Tribunal, a report
containing the following particulars, namely: —
(a) the nature and details of the assets of the company including their location and
value, stating separately the cash balance in hand and in the bank, if any, and the
negotiable securities, if any, held by the company:

Provided that the valuation of the assets shall be obtained from registered valuers
for this purpose;

(b) amount of capital issued, subscribed and paid‐up;
(c) the existing and contingent liabilities of the company including names, addresses and
occupations of its creditors, stating separately the amount of secured and unsecured
debts, and in the case of secured debts, particulars of the securities given, whether
by the company or an officer thereof, their value and the dates on which they were
given;
(d) the debts due to the company and the names, addresses and occupations of the
persons from whom they are due and the amount likely to be realised on account
thereof;
(e) guarantees, if any, extended by the company;
(f) list of contributories and dues, if any, payable by them and details of any unpaid call;
(g) details of trademarks and intellectual properties, if any, owned by the company;
(h) details of subsisting contracts, joint ventures and collaborations, if any;
(i) details of holding and subsidiary companies, if any;
(j) details of legal cases filed by or against the company; and
(k) any other information which the Tribunal may direct or the Company Liquidator may
consider necessary to include.

Question 4 – Settlement of List of Contributories ‐ 285
By an order of the Court M/s ABC Limited was wound up with effect from 15.3.2002. Mr. Gupta, who ceased
to be a member of the Company from 1.6.2001 received a notice from the liquidator to deposit a sum of
`15,000 as his contribution towards the liability on the shares previously held by him. Mr. Gupta seeks your
opinion about his liability under the Companies Act, 2013.

Answer
Definition of Contributory
U/S 2(26), “contributory” means a person liable to contribute towards the assets of the company in the
event of its being wound up.
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Explanation —For the purposes of this clause, it is hereby clarified that a person holding fully paid‐up shares
in a company shall be considered as a contributory but shall have no liabilities of a contributory under the
Act whilst retaining rights of such a contributory;

Answer u/s U/s 285, In the instant case, Mr. Gupta ceased to be a member of the Company when it
285(3) went into liquidation from 15.3.2002. Thus, Mr. Gupta will be treated as a past member.
He will not be required to contribute to the assets of the company if the following
conditions are fulfilled:
(1) If Mr. Gupta had ceased to be a member of the company for a period of one year or
upwards before the commencement of the winding up. In this case, since 1 year has
not elapsed, Mr. Gupta will be liable to contribute to the assets of the company.
(2) If the debt or liability of the company was contracted or incurred after he ceased to
be a member.
(3) If the present members are able to satisfy the contributions required to be made by
them under the Act.
(4) In any case, the liability of the past or present member cannot exceed the unpaid
amount on the shares and if the shares are fully paid up, no contribution is required
to be made by the members past or present.

Question 5 ‐ Settlement of List of Contributories ‐ 285
X Ltd. had gone into liquidation and a liquidator was appointed to administer the assets and liabilities of the
Company. The liquidator of the Company finds that the assets of the Company are not sufficient to meet
out the liabilities. He therefore, calls on the contributories including the past members as per List B to
contribute towards the assets. The past members object to the liquidator’s act on the ground that since
there are no more members of the Company, they are not liable to contribute. Referring to the provisions
of the Companies Act, 2013 decide:
(i) Whether the contention of the past member is tenable and can they be exempted from the liability to
contribute?
(ii) What would be your answer in case the members in question are the present members?

Answer
Answer u/s Thus, examining the above provisions, answer to the given questions shall be:
285(3) 1. The past members’ contention shall be tenable only:
(i) When they have ceased to be a member for 1 year or more before the
commencement of the winding up of the Company.
(ii) If the liability of the Company was contracted after he ceased to be a member.
(iii) If it appears to the court that the present members will be able to satisfy the
contributions required to made by them.
2. In the second case, the present members shall be liable to the extent of the amount
remaining unpaid on the shares in case of a Company limited by shares. In case of a
Company limited by guarantee, to the amount undertaken to be contributed by him
to the assets of the Company.

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Question 6 ‐ Audit of Company Liquidator’s Accounts ‐ 294
The High Court at Mumbai appointed the Official Liquidator as the Liquidator of Imprudent Engineering
Company Ltd. Some of the creditors have brought to the notice of the Liquidator that though the company
is in liquidation for the past several years, nothing worthwhile has been done to speed up the winding up
and no documents have been filed to indicate the progress of Liquidation. Examine in this connection the
nature and periodicity of returns required to be filed by the Liquidator in terms of the provisions contained
in the Companies Act, 2013.

Answer
Section 294(1) Company Liquidator to Maintain Proper Books of Accounts
The Company Liquidator shall maintain proper and regular books of account including
accounts of receipts and payments made by him in such form and manner as may be
prescribed.

Section 294(2) Presentation of the Books of Accounts to the Tribunal
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 such liquidator in the prescribed form in duplicate, which shall be
verified by a declaration in such form and manner as may be prescribed.

Section 294(3) Audit of Books of Accounts
The Tribunal shall cause the accounts to be audited in such manner as it thinks fit, 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.

Section 294(4) Filling of Copy of Audited Accounts
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.

Section 294(5) Forward of Copy of Audited Accounts to CG/SG in case of Government Company
Where an account referred to in sub‐section (4) relates to a Government company, the
Company Liquidator shall forward a copy thereof—
(a) to the CG, if that Government is a member of the Government company; or
(b) to any SG, if that Government is a member of the Government company; or
(c) to the CG and any SG, if both the Governments are members of the Government
company.

Section 294(6) Audited Accounts should be Printed & Circulated.
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.

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Provided that the Tribunal may dispense with the compliance of the provisions of this
sub‐section in any case it deems fit.
.

Question 7 ‐ Overriding Preferential Payments ‐ 326
OGC Ltd. was a supplier of Raw Materials to SAM Ltd., which could not make payment to OGC Ltd. owing to
huge losses and financial constraints. Ultimately, SAM Ltd, went into liquidation and Official Liquidator was
appointed. OGC Ltd. filed a suit for recovery of its dues. The Court awarded a decree in favour of OGC Ltd.
Armed with the Court’s decree, OGC Ltd. approached the Official Liquidator to pay the amount to it in
preference over dues of the workmen. The workmen protested the demand of OGC Ltd. and contended
that their dues rank pari passu with the Secured Creditors and will override all other claims of other creditors
even where a decree has been passed.

You are required to ascertain the validity of the argument of the workmen in the light of the provisions of
the Companies Act, 2013 and the decide cases on the subject. (May 2008)

Answer
Section 326(1) Order of Payment of Debts
In the winding up of a company under this Act, the following debts shall be paid in
priority to all other debts: —
(a) workmen's dues; and
(b) where a secured creditor has realised a secured asset.

Provided that in case of the winding up of a company, the sums due towards wages,
which are payable for a period of 2 years preceding the winding up order or such other
period as may be prescribed, shall be paid in priority to all other debts (including debts
due to secured creditors), within a period of 30 days of sale of assets and shall be
subject to such charge over the security of secured creditors as may be prescribed.
.
Section 326(2) Debts Payable shall be Paid in Full
The debts payable under the proviso to sub‐section (1) shall be paid in full before any
payment is made to secured creditors and thereafter debts payable under that
subsection shall be paid in full, unless the assets are insufficient to meet them, in which
case they shall abate in equal proportions.

Conclusion Thus, the law is very much clear in this respect and the Hon’ble Supreme Court of India
held in the case of UCO Bank [(1994) 81 Comp. Case 780] that the provisions of Section
326 of the Companies Act, 2013 will override all other claims of the creditors even where
a decree has been passed by a court.

In view of the above stated legal position, the contention of the workmen of SAM Ltd. is
valid and the Official Liquidator will have to pay their dues as provided in Section 326 of
the Act.

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Question 8 ‐ Overriding Preferential Payments – 326
M/s Raman Ltd. was wound up by the Court. The official liquidator invited claims from its creditors which
stood as under:

Income tax dues ` 11 lakhs
Sales tax dues ` 5 lakhs
Dues of workers ` 25 lakhs
Unsecured loans payable to directors ` 25 lakhs
Trade Creditors who supplied raw material ` 15 lakhs
Secured Creditor being the bankers of the Company ` 75 lakhs
` 156 lakhs

Official Liquidator could realize only ` 80 lakhs by sale of assets and realizations made from the company’s
debtors, which is not sufficient to pay to all the creditors. Please decide the order of priority for payment to
creditors explaining the relevant provisions of the Companies Act, 2013. (5 Marks) (Nov 2009)

Answer : For theory, refer Answer to Question 10.
Conclusion This question is based on Section 326 – Overriding Preferential Payments. The answer
has changed substantially as per the Companies Act 2013. Earlier the amount realised
from Secured Assets used to be proportionately divided between workmen and secured
Creditors. But now workers wages of last two years has to be paid in priority over the
secured creditors as evident from the PROVISO to Section 326(1).

So assuming that the Workers dues of ` 25 lacs is due for last 2 years, it shall be paid in
priority over the Secured Creditors.

Solution:

Particulars Amount
Amount of the Secured Assets realized 80,00,000
Less: Paid to the Workers in full as per Proviso to Section 326(1) 25,00,000
Balance paid to Secured Creditors u/s 326 55,00,000
.

Question 9 ‐ Overriding Preferential Payments ‐ 326
M/s XYZ Limited is being wound up by the Court. The official liquidator after realisation of the assets has an
amount of ` 56,00,000 at his disposal towards payment of creditors of the company. Details of creditors are
as under:

Sl Particulars Amount (`)

No.
(i) Dues to secured creditors 40,00,000
(ii) Dues to workers 30,00,000
(iii) Taxes and duties payable to Government authorities 4,00,000
(iv) Unsecured creditors 80,00,000

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Since the available amount is insufficient to meet the claims of all the creditors, explain the procedure to
be followed for payment of dues as provided in the Companies Act, 2013, assuming that the company has
created a charge on all the assets of the company in favour of the secured creditors.

Answer

.
Section 326(2) Debts Payable shall be Paid in Full
The debts payable under the proviso to sub‐section (1) shall be paid in full before any
payment is made to secured creditors and thereafter debts payable under that
subsection shall be paid in full, unless the assets are insufficient to meet them, in which
case they shall abate in equal proportions.

Conclusion This question is based on Section 326 – Overriding Preferential Payments. The answer
has changed substantially as per the Companies Act 2013. Earlier the amount realised
from Secured Assets used to be proportionately divided between workmen and secured
Creditors. But now workers wages of last two years has to be paid in priority over the
secured creditors as evident from the PROVISO to Section 326(1).

So assuming that the Workers dues of ` 30 lacs is due for last 2 years, it shall be paid in
priority over the Secured Creditors.

Solution:

Particulars Amount
Amount of the Secured Assets realized 56,00,000
Less: Paid to the Workers in full as per Proviso to Section 326(1) 30,00,000
Balance paid to Secured Creditors u/s 326 26,00,000
.

Question 10 ‐ Overriding Preferential Payments & List of Preferential Payments – 326 & 327
In relation to winding up of a company incorporated under the Companies Act 2013, explain clearly the
meaning of the term ‘overriding preferential payments’. Examine the provisions of the Act and decide
whether the following debts of a Company under the winding up shall be ‘Preferential payments’ and shall
be paid in priority to the claim of unsecured creditors:
(i) Wages amounting to ` 30,000 only of an employee for the services rendered for a period of 8 months
within the preceding 12 months next before the relevant date.
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(ii) ` 1 lac due to an employee from Provident Fund and ` 50,000 towards gratuity. [Entire amount is
preferential]
(iii) ` 20,000 payable by the company on account of expenses incurred in respect of investigation held under
Section 213 of the Companies Act 2013. (8 Marks) (Nov 2010) [Entire amount is preferential]

Answer
Overriding preferential payments:

.
Section 327(1) Lists of Preferential Payments
In a winding up, subject to the provisions of section 326, there shall be paid in priority to
all other debts: ‐
(a) all revenues, taxes, cesses and rates due from the company to the CG or a SG or to
a local authority at the relevant date, and having become due and payable within
the 12 months immediately before that date;
(b) all wages or salary due for a period not exceeding 4 months within the 12 months
immediately before the relevant date, subject to the condition that the amount
payable under this clause to any workman shall not exceed such amount as may be
notified;
(c) all accrued holiday remuneration becoming payable to any employee, or in the case
of his death, to any other person claiming under him, on the termination of his
employment before, or by the winding up order, or, as the case may be, the
dissolution of the company;
(d) unless the company is being wound up voluntarily merely for the purposes of
reconstruction or amalgamation with another company, all amount due in respect
of contributions payable during the period of 12 months immediately before the
relevant date by the company as the employer of persons under the Employees’
State Insurance Act, 1948 or any other law for the time being in force;
(e) all amount due in respect of any compensation or liability for compensation in
respect of the death or disablement of any employee of the company;
(f) all sums due to any employee from the provident fund, the pension fund, the
gratuity fund or any other fund for the welfare of the employees, maintained by the
company and
(g) the expenses of any investigation held in pursuance of sections 213 and 216, in so
far as they are payable by the company.

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Answer (i) All wages and salaries of an employee for service rendered for a period not exceeding 4
months within the preceding 12 months next before the relevant date, but not exceeding
specified amount in anyone case. In the given case, it is a preferential payment.

Answer (ii) All sums due to any employee from any fund including a provident, pension or a Gratuity
for the welfare of the employees, maintained by the company are the preferential
Payment. Therefore, in the given case both the sums i.e. ` 1 lac and ` 50,000 are the
preferential payments.

Answer (iii) The expenses of any investigation held in pursuance of sections 213 and 216, in so far as
they are payable by the company are preferential payments. Hence ` 20,000 is a
preferential payment.

Question 11 ‐ Fraudulent Preference ‐ 328
Modern Textiles Limited incurred huge losses during the last three financial years and its financial position
was bad. The Company created a legal mortgage on some of its immovable properties in favour of a bank
on 1st September, 2012 in the hope that by keeping good faith with the bank it could get further advances
from the bank and the same could be utilized to revive the Company. Some creditors filed winding up
petition in the court on 15th January, 2013. The court passed an order of winding up on 1st August, 2013.
Answer the following with reference to the provisions of the Companies Act, 2013:
(a) What is meant by ‘Fraudulent Preference’? State the effect of ‘Fraudulent Preference’.
(b) Whether the creation of legal mortgage by the Company in favour of the bank would amount to
fraudulent preference? (8 Marks) (Nov 2013)

Answer
Section 328(1) What is Fraudulent Preference?
Where a company has given preference to a person who is one of the creditors of the
company or a surety or guarantor for any of the debts or other liabilities of the company,
and the company does anything or suffers anything done which has the effect of putting
that person into a position which, in the event of the company going into liquidation, will
be better than the position he would have been in if that thing had not been done prior
to 6 months of making winding up application, the Tribunal, if satisfied that, such
transaction is a fraudulent preference may order as it may think fit for restoring the
position to what it would have been if the company had not given that preference.

Section 328(2) Tribunal to Declare Transaction Invalid
If the Tribunal is satisfied that there is a preference transfer of property, movable or
immovable, or any delivery of goods, payment, execution made, taken or done by or
against a company within 6 months before making winding up application, the Tribunal
may order as it may think fit and may declare such transaction invalid and restore the
position.

Answer (a) Fraudulent Preference is defined in Section 328(1) and its effect is given in Section
328(2).

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Answer (b) Creation of legal mortgage by the company in favour of the bank: In the present case,
the Modern Textiles Limited created a legal mortgagee on some of its immovable
properties in favour of a bank on 1st September, 2012 in the hope that by keeping good
faith with the bank it could get further advances from the bank and the same could be
utilized to revive the company.

For the purpose of proving a fraudulent preference, two things need be shown, viz.:
(a) that in the case of a winding‐up by or subject to the supervision of the Court, the
transaction took place within 6 months before the presentation of the petition and
in the case of voluntary winding up, the transaction took place within 6 months of
passing of resolution for winding‐up; and
(b) that the main motive in the mind of the company, acting through its directors, was
to prefer one creditor to the other.

Thus, to prove fraudulent preference, it shall have to be established that the dominant
motive was to commit an act of dishonesty. To find a case of fraudulent preference, the
dominant motive in the mind of the company as represented by the directors or the
general body of shareholders, as the case may be, must be to prefer the creditors. The
dominant motive attending the transaction has to be ascertained, and if it tainted with
an element of dishonesty, questions of fraud arise. In validating such payment the
question is not whether the company is or is not damaged by the payment, but whether
it was made with a bona fide view to assisting the company.

Thus, the creation of legal mortgage on some of its immovable properties with the bank
is not a fraudulent preference because it has been done in the good faith so that the
company could get further advances from the bank. It is a transaction in good faith.

A company was in financial distress. They pledged certain immovable properties with a nationalised bank
in the belief that their loan limits would be increased. However, within 3 months, some creditors filed a
petition for winding up. The management was accused of fraudulent preference.
(i) In the above context discuss fraudulent preference.
(ii) Would your answer be different if the charge was created in favour of an NBFC? (4 Marks) (May 2016)

Answer

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position.

Answer (i) In the present case, the company pledged certain immovable properties with a
nationalised bank in the belief that their loan limits would be increased. However within
3 months, some creditors filed a petition for winding up. The management was accused
of fraudulent preference.

For the purpose of proving a fraudulent preference, two things need be shown, viz.:
(a) that in the case of a winding‐up by or subject to the supervision of the Court, the
transaction took place within 6 months before the presentation of the petition and
in the case of voluntary winding‐up, the transaction took place within 6 months of
passing of resolution for winding‐up; and
(b) that the main motive in the mind of the company, acting through its directors, was
to prefer one creditor to the other.

Thus, to prove fraudulent preference, it shall have to be established that the dominant
motive was to commit an act of dishonesty. In validating such payment the question is
not whether the company is or is not damaged by the payment, but whether it was made
with a bona fide view to assisting the company.

Thus, pledging certain immovable properties with a nationalised bank is not a fraudulent
preference because it has been done in the good faith so that their loan limits would be
increased. It is a transaction in good faith.

Answer (ii) The answer would be the same if the charge was created in favour of an NBFC.

Skyline Ltd. was ordered to be wound up compulsory on a petition filed on 10th February, 2018 before
Tribunal. The official liquidator who has taken control for the assets and other records of the company has
noticed that the Managing Director of the company has transferred certain properties belonging to the
company to one of its creditor “Vansh (Pvt.) Ltd”, in which his son was interested. This was causing huge
monetary loss to the company. The sale took place on 15th September, 2017.
(i) Examine what action the official liquidator can take in this matter having regard to the provisions of the
Companies Act, 2013.
(ii) Determine the rights and liabilities of fraudulently preferred persons by mortgage of charge of property
to him to secure the company’s debt. (6 Marks) (MTP 1)

Answer
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position.

Section 331(1) Liability of Persons Fraudulently Preferred
Fraudulently Preferred person shall be subject to the same liabilities, and shall have the
same rights, as if he had undertaken to be personally liable as a surety for the debt, to
the extent of the mortgage or charge on the property or the value of his interest,
whichever is less.

Answer (i) In the present case, the sale of immovable property took place on 15th September, 2017
[Section 328] and the company went into liquidation on an application filed on 10th February, 2018
i.e., within 6 months of making winding up application and such transfer of property has
resulted a loss to the company.

The official liquidator will be able to succeed in proving the case under Section 328 by
way of fraudulent preference as the property was sold to a Vansh (Pvt.) company, a
creditor in which the son of the ex‐managing director was interested.

Hence, the transaction made will be regarded as invalid and restore the position of the
company as if no transfer of immovable property has been made.

Answer (ii) Determination of rights and liabilities of fraudulently preferred persons: According to
[Section 331] section 331 of the Companies Act, 2013, where a company is being wound up and
anything made, taken or done after the commencement of this Act is invalid under
section 328 as a fraudulent preference of a person interested in property mortgaged or
charged to secure the company’s debt, then, without prejudice to any rights or liabilities
arising, apart from this provision, the person preferred shall be subject to the same
liabilities, and shall have the same rights, as if he had undertaken to be personally liable
as a surety for the debt,‐
(i) to the extent of the mortgage or charge on the property, or
(ii) the value of his interest.
whichever is less.

Page | 10.14


Question 14 ‐ Transfers not in Good Faith to be Void ‐ 329
M/s. Info‐tech Overtrading Ltd. was ordered to be wound up compulsory by an order dated 15th October,
2007 of the Delhi Tribunal. The official liquidator who has taken control for the assets and other records of
the company has noticed the following:
(i) The Managing Director of the company has sold certain properties belonging to the company to a
private company in which his son was interested causing loss to the company to the extent of ` 50 lakhs.
The sale took place on 10th May, 2007.
(ii) The company created a floating charge on 1st January, 2007 in favour of a private bank for the overdraft
facility to the extent of ` 5 crores, by hypothecating the current assets viz., stocks and book debts.
Examine what action the official liquidator can take in this matter. Having regard to the provisions of the
Companies Act, 2013. (November 2007)

Answer
Section 329 Transfers not in Good Faith to be Void
Any transfer of property, movable or immovable, or any delivery of goods, made by a
company, if made within a period of 1 year before the presentation of a petition for
winding up by the Tribunal under this Act shall be void against the Company Liquidator.

Exceptions:
1. A transfer or delivery made in the ordinary course of its business or
2. A transfer or delivery made in good faith and for valuable consideration.

Section 332 Effect of Floating Charge
Where a company is being wound up, a floating charge on the undertaking or property
of the company created within the 12 months immediately preceding the
commencement of the winding up, shall be invalid.

Exceptions:
1) It is proved that the company immediately after the creation of the charge was
solvent, or,
2) Charge is valid if any cash is paid to the company at the time of, or subsequent to
the creation of, and in consideration for, the charge, together with interest on that
amount at the rate of 5% per annum or such other rate as may be notified by the CG
in this behalf.

Answer (i) As per Section 329 the sale of property is void and the Official Liquidator may take control
and possession of the property.

Answer (ii) In the present case it may be difficult for the Bank, the charge holder to prove that the
company was solvent after the creation of the floating charge. The official liquidator may
thus prove that the floating charge created by the company is invalid in compliance with
Section 332.
Alternative Answer: Assuming that the overdraft facility was given by bank subsequent
to creation of floating charge it shall be regarded as valid.

Page | 10.15


Question 15 – Contributory
M/s, IJK Limited was wound up with effect from 15th March 2018 by an order of the Court. Mr. A, who
ceased to be a member of the company from 1st June 2017, has received a notice from the liquidator that
he should deposit a sum of ` 5,000 as his contribution towards the liability on the shares previously held by
him. In this context explain whether Mr. A can be called as a contributory, whether he can be made liable
and whether there is any limitation on his liability. (4 Marks) (Nov 2018 – OS)

Answer
Contributory: According to section 285 of the Companies Act, 2013, as soon as may be after the passing of a
winding up order by the Tribunal, the Tribunal shall settle a list of contributories.
While settling the list of contributories, the Tribunal shall include every person, who is or has been a member,
who shall be liable to contribute to the assets of the company an amount sufficient for payment of the debts
and liabilities and the costs, charges and expenses of winding up, and for the adjustment of the rights of the
contributories among themselves.
Liability of the contributory: A person who has been a member shall not be liable to contribute if he has
ceased to be a member for the preceding one year or more before the commencement of the winding up.
In the given case, M/s, IJK Ltd. was wound up on 15th March 2018. Whereas Mr. A ceased to be a member of
the company from 1stJune, 2017. So, according to the above provision, Mr. A will be a contributory and be
liable to contribute as the time period of one year from the commencement of winding up has not elapsed.
So, Mr. A is liable to deposit ` 5000 (if any unpaid on the shares in respect of which he is liable as member
[Section 285 (3) (d)] as his contribution towards the liability on the shares previously held by him.

Question 16 ‐ Effect of Floating Charge ‐ 332
A Company created a floating charge of its Current Assets in favour of a Bank to secure a Current Account,
which was in debit of ` 5 lakhs and also to secure further Working Capital facilities provided by the bank.
The charge created on 1st January, 2003 was duly registered with the registrar of Companies. The bank
advanced ` 10 lakhs subsequent to the creation of charge. The company has gone into voluntary liquidation
pursuant to a resolution passed on 1st September, 2003. Examine the validity of the floating charge in case
it is a creditors’ voluntary winding up, but there is no fraudulent preference. Would your answer be
different, if it was a member’s voluntary winding up? (May, 2004)

Answer
Section 332 Effect of Floating Charge
As per Section 332 of Companies Act 2013, Where a company is being wound up, a
floating charge on the undertaking or property of the company created within the 12
months immediately preceding the commencement of the winding up, shall be invalid.

Exceptions:
1) It is proved that the company immediately after the creation of the charge was
solvent, or,
2) Charge is valid if any cash is paid to the company at the time of, or subsequent to
the creation of, and in consideration for, the charge, together with interest on that
amount at the rate of 5% per annum or such other rate as may be notified by the CG
in this behalf.

Page | 10.16


Conclusion (a) In the case of creditors’ voluntary winding up, the company cannot be considered as
solvent. In view of the position explained above the floating charge is valid only to
the extent of advances made subsequent to the creation of charge i.e. ` 10 lakhs
plus interest at 5%.
(b) In the case of members’ voluntary winding up, the position is different. As the
company is solvent, the floating charge is valid for the entire debt of ` 15 lakhs
including the pre‐existing debt of ` 5 lakh (at the time of creation of charge).

Question 17 ‐ Disclaimer of Onerous Property ‐ 333
What is meant by ‘disclaimer of onerous property’ and how the same is exercised during winding up”?
Explain the circumstances under which such a disclaimer is not allowed. (May, 2000)

Answer
Section 333(1) Liquidator may Disclaim the Property
Where any part of the property of a company which is being wound up consists of—
(a) land of any tenure, burdened with onerous covenants;
(b) shares or stocks in companies;
(c) any other property which is not saleable or is not readily saleable by reason of the
possessor thereof being bound either to the performance of any onerous act or to
the payment of any sum of money; or
(d) unprofitable contracts,
the Company Liquidator may disclaim the property, with the leave of the Tribunal, at any
time within 12 months after the commencement of the winding up or such extended
period as may be allowed by the Tribunal.

Provided that where the Company Liquidator had not become aware of the existence
of any such property within 1 month from the commencement of the winding up, the
power of disclaiming the property may be exercised at any time within 12 months
after he has become aware thereof or such extended period as may be allowed by the

Tribunal.
Section 333(3) Notices to the Persons Interested
The Tribunal, before or on granting leave to disclaim, may require such notices to be
given to persons interested and impose such terms as a condition as the Tribunal
considers just and proper.

Section 333(4) Company Liquidator not entitled to Disclaim Any Property
The Company Liquidator shall not be entitled to disclaim any property in any case where
an application in writing has been made to him by any person interested in the property
requiring him to decide whether he will or will not disclaim and the Company Liquidator
has not, within a period of 28 days after the receipt of the application, give notice to the
applicant that he intends to apply to the Tribunal for leave to disclaim.

Page | 10.17


Question 18 ‐ Power of Tribunal to Assess Damages Against Delinquent Directors, etc. ‐ 340
The official liquidator of ABC Limited (in liquidation) instituted misfeasance proceedings under section 340
of the Companies Act, 2013 against ‘A’, a director of the company in liquidation. During the pendency of
misfeasance proceedings ‘A’ died.
What is meant by Misfeasance? Is it possible for the official liquidator to impede the legal representatives
or ‘A’ and continue the proceeding against them? (November 2006)
Or
What is meant by “misfeasance”? Who can initiate misfeasance proceedings and is there any time limit for
initiating such proceedings? Examine the extent to which the legal representatives of a deceased Director,
against whom misfeasance proceedings were initiated, can be held liable under the provisions of Companies
Act, 2013. (8 Marks) (May 2013)

Answer
Section 340(1) Tribunal may Direct to Repay or Restore the Money
If in the course of winding up of a company, it appears that any person who has taken
part in the promotion or formation of the company, or any person, who is or has been a
director, manager, Company Liquidator or officer of the company—
(a) has misapplied, or retained, or become liable or accountable for, any money or
property of the company; or
(b) has been guilty of any misfeasance or breach of trust in relation to the company,
the Tribunal may, on the application of the Official Liquidator, or the Company
Liquidator, or of any creditor or contributory, made within the period specified in
that behalf in sub‐section (2), inquire into the conduct of the person, director,
manager, Company Liquidator or officer aforesaid, and order him to repay or restore
the money or property or any part thereof respectively, with interest at such rate as
the Tribunal considers just and proper.

Section 340(2) Time Limit of Making Application
An application under sub‐section (1) shall be made within 5 years from:
1. the date of the winding up order, or
2. the first appointment of the Company Liquidator in the winding up, or
3. the misapplication, retainer, misfeasance or breach of trust.
whichever is longer.

Section 340(3) Applicability
This section shall apply, notwithstanding that the matter is one for which the person
concerned may be criminally liable.

Conclusion Misfeasance: The term ‘misfeasance’ has not been defined in the Companies Act, 2013.
It can be considered as an act or omission in the nature of breach of trust in relation to
the company which causes losses or injuring to the company. Although loss to the
company has not been expressly stated in Section 340 nevertheless such ‘loss’ has to be
implied in case of misapplication or retainer. Only such an act of misfeasance as results
in the loss to the company will fall within the ambit of section 340.

As regards the second question (ii) in case of death of the directors, the Supreme Court
held that the proceedings commenced against the delinquent director of a company
Page | 10.18


liquidation under section 340 can be continued after his death against his legal
representatives and the amount declared to be due in such misfeasance proceeding can
be realized from the estate of the deceased on the hands of his legal representatives.
The Court further held that the legal representatives would not, however, be liable for
any sum beyond the value of the estate of the deceased in their hands (Official
Liquidator, Supreme Bank ltd. V.P.A. Tendolkar (1973) 43 Comp. (Case 382) (Official
Liquidator vs. Parthasarthy Sinha (1983) 53. Comp. Case (SC) (3c)). Hence the
misfeasance proceeding can be continued against the legal representatives of A.

Question 19 ‐ Information as to Pending Liquidations ‐ 348
JKL Company Limited has gone into winding up. The winding up proceedings have already commenced but
the winding up could not be completed within a period of two years.
Referring to the provisions of the Companies Act, 2013, answer the following:
(i) As the Official Liquidator of the company what duties you are required to perform in relation to filing
of petition.
(ii) What shall be your answer in case the company in question is a Government company?
(iii) What consequences follow in case the Official Liquidator does not comply with the legal requirements
in relation to the above? (8 marks) (Nov. 2014)

Answer
Section 348(1) Liquidator’s Statement of Affairs (LSOA)
If the winding up of a company is not concluded within 1 year after its commencement,
the Company Liquidator shall within 2 months of the expiry of such year and thereafter
until the winding up is concluded, at intervals of not more than 1 year or at such shorter
intervals, as may be prescribed, file a statement in such form containing such
particulars as may be prescribed, duly audited, by a person qualified to act as auditor
of the company, with respect to the proceedings in, and position of, the liquidation, with
the Tribunal.

Provided that no such audit as is referred to in this sub‐section shall be necessary
where the provisions of section 294 apply;
.
Section 348(2) Filing LSOA with ROC
When the statement is filed with the Tribunal under clause (a) of sub‐section (1), a copy
shall simultaneously be filed with the Registrar and shall be kept by him along with the
other records of the company.

Section 348(3) Copy of LSOA to CG/SG
Where a statement referred to in sub‐section (1) relates to a Government company in
liquidation, the Company Liquidator shall forward a copy thereof—
(a) to the CG, if that Government is a member of the Government company;
(b) to any State Government, if that Government is a member of the Government
company; or
Page | 10.19


company.

Section Punishment on Liquidator
348(6)(7) .
For contravention of this Section ` 5,000 for every day during which the
offence continues.
Liquidator makes wilful default in Penalty ≤ ` 1,00,000
causing the LSOA Audited or,
Or Both
Answer (i) In the given case, JKL Company Limited has gone into winding up. The winding up
proceedings have already commenced but the winding up could not be completed within
a period of two years. The duties that the official liquidator required to perform in
relation to filing of petition must be in compliance with Section 348(1) and Section
348(2).

Answer (ii) In case the company in question is a Government company, Section 348(3) must be
complied.

Answer (iii) In case the Official Liquidator does not comply with the legal requirements in relation to
the above, he will be punishable under Section 348(6) and Section 348(7).

Question 20 ‐ Information as to Pending Liquidations – 348
Winding up proceedings has been commenced by the tribunal against DEF Limited, a government company
(Central Government is a member). Even after completion of one year from the date of commencement of
winding up proceedings, it has not possible to conclude the same. The liquidator is of the opinion that the
statement shall be filled with tribunal and registrar only.
(i) Validate the opinion made by the liquidator and penalty can be imposed on the liquidator for
contravention of the provision as per companies act, 2013.
(ii) What will be your answer if the DEF Limited is a non‐government company? (6 Marks) (MTP 2)

Answer
Section 348(1) Liquidator’s Statement of Affairs (LSOA)
If the winding up of a company is not concluded within 1 year after its commencement,
the Company Liquidator shall within 2 months of the expiry of such year and thereafter
until the winding up is concluded, at intervals of not more than 1 year or at such shorter
intervals, as may be prescribed, file a statement in such form containing such
particulars as may be prescribed, duly audited, by a person qualified to act as auditor
of the company, with respect to the proceedings in, and position of, the liquidation, with
the Tribunal.

Provided that no such audit as is referred to in this sub‐section shall be necessary
where the provisions of section 294 apply;
.
Page | 10.20


Section 348(2) Filing LSOA with ROC
When the statement is filed with the Tribunal under clause (a) of sub‐section (1), a copy
shall simultaneously be filed with the Registrar and shall be kept by him along with the
other records of the company.

Section 348(3) Copy of LSOA to CG/SG
Where a statement referred to in sub‐section (1) relates to a Government company in
liquidation, the Company Liquidator shall forward a copy thereof—
(a) to the CG, if that Government is a member of the Government company;
(b) to any State Government, if that Government is a member of the Government
company; or
company.

Section Inspection by Creditor or Contributory
348(4)(5) Any person stating himself in writing to be a creditor or contributory of the company
shall be entitled, by himself or by his agent, at all reasonable times, on payment of the
prescribed fee, to inspect the statement referred to in sub‐section (1), and to receive a
copy thereof or an extract therefrom.

Any person fraudulently stating himself to be a creditor or contributory under subsection
(4) shall be deemed to be guilty of an offence under section 182 of the Indian Penal Code,
and shall, on the application of the Company Liquidator, be punishable accordingly.

Section Punishment on Liquidator
348(6)(7) .
For contravention of this ` 5,000 for every day during which the offence
Section continues.
Penalty ≤ ` 1,00,000
or,
Liquidator makes wilful default
in causing the LSOA Audited
Or
Both
Answer (i) DEF Limited is a Government Company
In the current scenario, we can understand that the DEF Limited is a government
company in which Central Government is a member and hence statement is also
required to file to the Central Government along with the Tribunal and Registrar. So, the
opinion by the Company Liquidator is not tenable in the eyes of the law and he is liable
for penal action under the act.

The company liquidator shall be punishable u/s Section 348(6)(7).

Answer (ii) DEF Limited is a Non‐Government Company
In the current scenario, the DEF Limited is a non‐government company hence statement
is only required to file with the Tribunal and Registrar only. So, the opinion by the
Company Liquidator is tenable in the eyes of the law and he is not liable for any penal
action under the act.

Page | 10.21


Question 21 ‐ Loss of Substratum of Company and Winding Up
Under what circumstances shall it be deemed that the substratum of a company has gone? A company has
ceased to carry on two of the ten business stated as the main objects of the company. Examine whether
the company can be wound up on the ground that substratum of the company is gone. (5 Marks) (Nov 2008)

Answer
Loss of Substratum of a Company and the Winding Up:
Meaning of A company’s substratum is the purpose or the main object, for which the company was
“Loss of formed. If the company has abandoned all of its main objects and not merely some of
Substratum” them, or if it cannot achieve any of its main objects, its substratum has gone and will be
wound up by the Tribunal.

Analysis w.r.t In Re German Date Coffee Co., where a company was formed for the purpose of coffee
Case Law “Re from dates under a patent which was to be granted by the Government of Germany. The
German Date German patent was never granted. On a petition of a shareholder it was held that the
Coffee Co.” substratum of the company had failed and it was impossible to carry on the object for
which it was formed. Therefore, it was just and equitable that the company be wound
up.

In other words, the substratum of a company is deemed to have disappeared or gone, if
the main objects for which the company was formed has become impracticable, i.e.
permanently impracticable.

Tests for Usual tests for determining whether the substratum of the company has disappeared
determining are whether:
“Substratum of (i) the subject matter of the company is gone, or
the Company” (ii) the object for which it was formed has substantially failed, or
(iii) it is impossible to carry on the business of the company except at a loss, which means
there is no reasonable hope that the object of trading at a profit can be attained, or
(iv) the existing and probable assets are insufficient to meet the existing liabilities.

Conclusion Therefore, applying the above to the given situation in the question it can be said that in
this case the substratum of the company cannot be said to have gone, since there are
other businesses authorized by the Memorandum which can be carried out successfully.
A company, therefore, cannot be wound up on the ground that it has ceased to carry on
two of the 10 business authorized by the Memorandum of Association.

Question 22 ‐ Obsolete
XYZ Limited has its subsidiary company PRM Ltd, which is formed to carry out some of the objectives of XYZ
Limited. XYZ Ltd suspends one of its several businesses, by passing a resolution at the company’s
extraordinary general meeting, with effect from 1st January 2006. The business so suspended continues to
be suspended until March 2006. On 1st April 2006, a group of shareholders of XYZ Ltd file a petition in the
court for winding of the company on the ground of suspension of business by the company. Referring to
the provisions of the Companies Act, 2013, decide:
(1) Whether the shareholders’ contention shall be tenable?
(2) What would be your answer in case XYZ Ltd suspends all its business?
Page | 10.22


(3) Can shareholders of PRM Ltd. file a petition in the court for winding up of their company (PRM Ltd) on
the ground that the holding company viz., XYZ Ltd has suspended its entire business, though PRM Ltd.
has not suspended business?

Answer
This question has become obsolete as the ground of “non‐commencement of business” under erstwhile
Section 433 of OLD Companies Act has been removed in the new Section 271 of the Companies Act 2013.

Alternatively here the members can apply for striking off the name of the company u/s 248.

Question 23
LED Bulb Ltd., has made default in filing financial statements and annual returns for a continuous period of
4 financial years ending on 31st March, 2017. The Registrar of Companies having jurisdiction approached
the Central Government to accord sanction to present a petition to Tribunal (NCLT) for the winding up of
the company on the above ground under Section 272 of the Companies Act, 2013
Examine the validity of the RoC move, explaining the relevant provisions of the Companies Act, 2013. State
the time limit for passing an order by the Tribunal under Section ∙273 of the Companies Act, 2013? (6 Marks)
(May 2018 – NS)

Answer
Validity of RoC’s action
According to Section 271(d) of the Companies Act, 2013, a Company may, on a petition under Section 272, be
wound up by the Tribunal, if the Company has made a default in filing with the Registrar its financial
statements or annual returns for immediately preceding five consecutive financial years.
In the instant case, the move by RoC to present a petition to Tribunal for the winding up of LED Bulb Ltd. is not
valid as the Company has made default in filing financial statements and annual returns for a continuous
period of 4 financial years ending on 31st March, 2017.
Time limit for passing of an Order under section 273: An order under section 273 of the Act shall be made
within ninety days from the date of presentation of the petition.

Question 24
M/s Sagar Retail Mega Mart Ltd. applied for winding up on 1st April, 2018 before the Honourable Tribunal
by passing a special resolution as per the provision of section 271(1)(a) of the Companies Act, 2013 on
account of fall in business and continued losses but not due to inability to pay debts. The company was in
the business of ordinary retail trade of multiple branded goods. A few shareholders of the company have
alleged before the Honourable Tribunal that the company had failed to maintain proper books of accounts
for over a period of more than three years immediately prior to the date of winding up application and the
sole reason cited by them in support of their allegation is that no proper statements of all goods sold and
purchased by the company have been kept as such every officer in default must be punished as per the
provisions of the Companies Act, 2013. Mr. Ravi the CFO and officer in default do not refute the allegation
of non‐maintenance but is of the opinion that this act as per the provision of the Companies Act, 2013 is
not punishable. Decide whether the opinion of the CFO is correct. Would your answer be different had the
business of the company be wholesale trade instead of ordinary retail trade? (4 Marks) (May 2018 – OS)

Answer
Failure to maintain proper books of accounts [Section 338(1) of the Companies Act, 2013]
Page | 10.23


• where a company is being wound up, if it is shown that proper books of account were not kept by the
company throughout the period of two years immediately preceding the commencement of the winding
up,
• every officer of the company who is in default shall, unless he shows that he acted honestly and that in
the circumstances in which the business of the company was carried on, the default was excusable,
• be punishable with imprisonment for a term which shall be not less than one year but which may extend
to three years and with fine which shall not be less than I lakh rupees but which may extend to three lakh
rupees.
Conditions when it shall be deemed that proper books of account have not been kept [Section 338(2) of
the Act]: For the purposes of sub‐Section (1), it shall be deemed that proper books of account have not
been kept in the case of any company,—
• where the business of the company has involved dealings in goods, statements of the annual stock takings
and, except in the case of goods sold by way of ordinary retail trade, of all goods sold and purchased, have
not been kept.
In the instant case, no proper statements of all goods sold and purchased by the company engaged in ordinary
retail trade is kept. It shall be deemed that proper books of account have been kept as ordinary retail trade is
an exception under sub‐Section (2). Thus, opinion of CFO is correct and punishable.
If the company is engaged in wholesale trade instead of ordinary retail trade, then it is deemed that proper
statements of all goods sold and purchased by the company engaged in wholesale retail trade is not kept for
more than 3 years period immediately prior to the date of winding up application. Hence, in this case, the CFO
opinion will not hold good and will be punishable.

Page | 10.24


Multiple Choice Questions

Question 1
When can an application be made to Tribunal for constitution of a winding up committee to assist and
monitor the progress of liquidation proceedings by the Company Liquidator in carrying out the function?
a) Within two weeks from the date of passing of winding up order
b) Within three weeks from the date of passing of winding up order
c) Within four weeks from the date of passing of winding up order
d) None of the above.

Question 2
When can a winding up order not be called a notice of discharge?
(a) when the business of the company is continued
(b) when the business of the company is closed since 2 years.
(c) On the discretion of the management
(d) Till the appointment of a provisional liquidator

Page | 10.25


Notes

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Chapter 10: Winding Up

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274 Directions for Filing Statement of Affairs

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281 Submission of Report by Company Liquidator

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