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Winding Up
Winding Up
Meanings of Winding Up
Company is an artificial legal person and it cannot die a natural death like a human being. Company is created by the process of law, it can only be destroyed by the process of law. To put an end to the life of a company, anyone of below mentioned legal processes
Through a scheme of reconstruction and amalgamation Through the removal of its name from the register of companies by the registrar; or Through the WINDING UP process.
Winding up is a method of putting an end to the life of a company. When the affairs of the company are completely wound up, the legal status comes to an end. This is called dissolution. When the affairs of a company are completely wound up, there is no purpose in keeping it alive. It shall be dissolved. An administrator, called a liquidator, is appointed and he takes control of the company, collects its assets, pays its debts and finally distributes any surplus among the members in accordance with their rights. Company may be dissolved without being wound up. In other words, there can be dissolution without winding up which happen in the case of amalgamation. The transferor company is dissolved without being wound up.
Winding Up
Modes of Winding Up
by the Court; or voluntary; or subject to the supervision of the Court.
Winding Up By Court
Company may be wound up by court;
if the Co has, by special resolution, resolved that the Co be wound up by the Court; if default is made in delivering the statutory report to the registrar or in holding the statutory meeting or any two consecutive annual general meetings; if the company does not commence its business within a year from its incorporation, or suspends its business for a whole year; if the number of members is reduced if the company is unable to pay its debts; if, being a listed company, it ceases to be such company; if in the opinion of the Court it is just and equitable that the Co should be wound up; if a company ceases to have a member. if the company is Involved in unlawful or fraudulent activities; or carrying on business not authorised by MOA conducting its business in a manner oppressive to any of its members or persons concerned with the formation or promotion of the Co or the minority shareholders (20% or more) run and managed by persons who fail to maintain proper and true accounts, or commit fraud, misfeasance or malfeasance in relation to the company; or managed by persons who refuse to act according to the MOA, AOA, Ordinance or fail to carry out the directions or decisions of the Court or the registrar or the Commission
Winding Up By Court
Inability to pay Debt;
A company shall be deemed to be unable to pay its debts if a creditor, having a debt exceeding 1 % of paid-up capital or Rs 50,000, whichever is less, has served a demand for payment by registered post or otherwise at registered office and the company has for thirty days thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor; or if execution or other process issued on a decree or order of any Court or any other competent authority in favour of a creditor of the company is returned unsatisfied in whole or in part; or if it is proved to the satisfaction of the Court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company. The demand for payment referred deemed to have been duly given under the hand of the creditor if it is signed by an agent or legal adviser duly authorised on his behalf, or in the case of a firm if it is signed by such agent or legal adviser or by any member of the firm on behalf of the firm.
Official Liquidators
Appointment of official liquidator.
The Court shall maintain, from amongst persons recommended by the Commission, a panel of persons from whom it shall appoint a provisional manager or official liquidator. The person appointed as official liquidator shall inform the Court about his inability to act as such, within three days of the communication of the order otherwise start performing the duties and functions of official liquidator till the conclusion of winding up proceedings: No person shall be appointed as liquidator of more than three companies at one point of time. If more persons than one are appointed the Court shall declare whether any act is to be done by all or any one or more of such persons. The Court may determine whether any, and what, security is to be given by any official liquidator on his appointment. Any vacancy in the office of an official liquidator shall be filled up by the Court by the appointment of another person on the panel. The Court may appoint a person (other than the official receiver) whose name does not appear on the panel after notice to the registrar, if court considers necessary to do so for reasons to be recorded, or on the application of creditors to whom amounts not less than 60% of the issued share-capital of the company being wound up are due. An official liquidator shall be described by the name of the official liquidator of the particular company in respect of which he acts, and not by his individual name.
Official Liquidators
Resignation, Removal, filling up vacancies of official liquidator.
An official liquidator shall not resign or quit his office before conclusion of the winding up proceedings except for reasons of personal disability to the satisfaction of the Court but may be removed at any time by the Court for reasons to be recorded. Any vacancy in the office of an official liquidator shall be filled up by the Court by the appointment of another person from the panel and, the outgoing official liquidator shall, unless the Court directs otherwise, continue to act until appointed person takes charge
Committee of inspection
The liquidator call separate meetings of the creditors and contributories within thirty days to determine the need for application to the Court for the appointment of a committee of inspection to act with the liquidator, and composition of the committee if appointed: Where the winding up order has been made on the ground that the company is unable to pay its debts, it is not be necessary for the liquidator to call meeting of the contributories. Constitution and proceedings of committee of inspection.
A committee consist of creditors and contributories or persons having general power of attorney on their behalf in agreed proportions as may In case of difference, the Court may determine the composition: In case of inability to pay debt basis, the committee shall consist of creditors or persons holding general powers of attorney from creditors. The committee shall meet at such times as it may from time to time appoint, and, failing such appointment, at least once a month, and the liquidator or any member of the committee may also call a meeting of the committee as and when he thinks necessary. The committee may act by a majority of its members present at a meeting but shall not act unless a majority of the members of the committee are present.
Committee of inspection
Resignation Removal and Vacancy.
A member of the committee may resign by notice in writing delivered to the liquidator. If a member becomes bankrupt or compounds or arranges with his creditors or is absent from five consecutive meetings of the committee without leave, his office shall become vacant. A member of the committee may be removed by an ordinary resolution at a respective meeting of creditors or contributories, of which seven days notice is given, stating the object. On a vacancy in the committee the official liquidator shall forthwith summon a meeting of creditors or of contributories, as the case may require, to fill the vacancy, and the meeting may, by resolution, reappoint the same or appoint another creditor or contributory to fill the vacancy: Provided that, if the official liquidator, having regard to the position in the winding up, is of the opinion that it is unnecessary for the vacancy to be filled, he may apply to the Court and the Court may make an order that the vacancy shall not be filled, or shall not be filled except in such circumstances as may be specified in the order. The continuing members of the committee, if not less than two, may act notwithstanding any vacancy in the committee.
Power to require delivery of property. Require any contributory, trustee, receiver, banker, agent, officer or employee whether present or past, or auditor to pay, deliver, convey, surrender or transfer any money, property or books and papers to the official liquidator.
Adjustment of rights of contributories. The Court shall adjust the rights of the contributories among themselves, and distribute any surplus among the persons entitled thereto.
Dissolution of company.
When the affairs of a company have been completely wound up, or when the Court is of the opinion that the official liquidator cannot proceed with the winding up of the company for want of funds and assets or any other reason, and it is just and reasonable in the circumstances of the case that an order of dissolution of the company be made, the Court shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly: Such dissolution of the company shall not extinguish and right of, or debt due to, the company against or from any person. A copy of the order shall be forwarded by the official liquidator to the registrar, within 15 days of orders, who shall make in his books a minute of the dissolution of the company. In default liquidator liable to a fine up to Rs 100 per day of default.
Voluntary Winding Up
Circumstances in which company may be wound up voluntarily.
when the period (if any) fixed for the duration of the company by the articles expires, on the occurrence of the event (if any) on which AOA provide that the company is to be dissolved The company in general meeting has passed a resolution requiring to be wound up voluntarily; The company resolves by special resolution that the company be wound up voluntarily;
Meeting of Creditors.
Co call a meeting of the creditors on the day, or the next day, on which general meeting for voluntary winding up is to be proposed, and the notices of the said meetings to be sent by post simultaneously. Notice of any resolution for winding within ten days of the passing by advertisement in a newspaper circulating in the Province of registered office and in the case of a listed company, in one issue of a daily newspaper of English and Urdu language having circulation in the Province of stock exchange. The directors and chief executive present a full statement of the position of the company's affairs and balance sheet together with a list of the creditors with estimated amount of claims to creditors Directors will appoint one of their numbers to preside at the meeting which will be binding on him. If GM for voluntary winding up is adjourned and the resolution is passed at an adjourned meeting, any resolution passed at creditors meeting have effect as passed after the WU resolution meeting. If default is made by the directors and chief executive and appointed director, Co and Every director and Chief Executive fined up to Rs 5000 & up to Rs 100/day if continue If default is made by Co, Co and every officer same penalty. Notice of resolution passed by creditors to the registrar by Co, along with the consent of liquidator within ten days of the passing. In default, Co and every default officer fined up to Rs 200/day