(1) The liquidator shall conduct the proceedings in winding up the company and perform such duties in reference thereto as the1*[Tribunal] may impose.
(2) Where the2*[ the Official Liquidator referred to in clause (c) of sub -section (1) of section 448] becomes or acts as liquidator, there shall be paid to the Central Government out of the assets of the company such fees as may be prescribed.
(3) The acts of a liquidator shall be valid, notwithstanding any defect that may afterwards be discovered in his appointment or qualification:-
Provided that nothing in this sub-section shall be deemed to give validity to acts done by a liquidator after his appointment has been shown to be invalid.
(1) Where the 1*[Tribunal] has made a winding up order or appointed the Official Liquidator as provisional liquidator, unless the 1*[Tribunal] in its discretion otherwise orders, there shall be made out and submitted to the Official Liquidator a statement as to the affairs of the company in the prescribed form, verified by an affidavit, and containing the following particulars, namely:-
(a) The assets of the company, stating separately the cash balance in hand and at the bank, if any, and the negotiable securities, if any, held by the company;
(b) Its debts and liabilities;
(c) The names, residences 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, residences and occupations of the persons from whom they are due and the amount likely to be realised on account thereof;
(e) Such further or other information as may be prescribed, or as the Official Liquidator may require.
(2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the manager, secretary or other chief officer of the company, or by such of the persons hereinafter in this sub-section mentioned, as the Official Liquidator, subject to the direction of the 1*[Tribunal], may require to submit and verify the statement, that is to say, persons-
(a) Who are or have been officers of the company;
(b) Who have taken part in the formation of the company at any time within one year before the relevant date;
(c) Who are in the employment of the company, or have been in the employment of the company within the said year, and are, in the opinion of the Official Liquidator, capable of giving the information required;
(d) Who are or have been within the said year officers of, or in the employment of, a company which is, or within the said year was, an officer of the company to which the statement relates.
(3) The statement shall be submitted within twenty-one days from the relevant date, or within such extended time not exceeding three months from that date as the Official Liquidator or the 1*[Tribunal] may, for special reasons, appoint.
(4) Any person making, or concurring in making, the statement and affidavit required by this section shall be allowed, and shall be paid by the Official Liquidator or provisional liquidator, as the case may be, out of the assets of the company, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the Official Liquidator may consider reasonable, subject to an appeal to the 1*[Tribunal].
2*[(5) If any person, without reasonable excuse, makes default in complying with any of the requirements of this section, he shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to 3*[one thousand rupees] for every day during which the default continues, or with both.
(5A) The 1*[Tribunal] by which the winding up order is made or the provisional liquidator is appointed, may take cognizance of an offence under sub-section (5) upon receiving a complaint of facts constituting such an offence and trying the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (5 of 1898), for the trial of summons cases by magistrates.]
(6) Any person slating 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 submitted in pursuance of this section, and to a copy thereof or extract therefrom.
(7) Any person untruthfully so stating himself to be a creditor or contributory shall be guilty of an offence under section 182 of the Indian Penal Code (45 of 1860); and shall, on the application of the Official Liquidator, be punishable accordingly.
(8) In this section, the expression "the relevant date" means, in a case where a provisional liquidator is appointed, the date of his appointment, and in a case where no such appointment is made, the date of the winding up order.
(1) In a case where a winding up order is made, the Official Liquidator shall, as soon as practicable after receipt of the statement to be submitted under section 454 and not later than six months from the date of the order, 1*[or such extended period as may be allowed by the Court] or in a case where the 2*[Tribunal] orders that no statement need be submitted, as soon as practicable after the date of the order, submit a preliminary report to the 2*[Tribunal]-
(a) As to the amount of capital issued, subscribed, and paid up, and the estimated amount of assets and liabilities, giving separately under the heading of assets, particulars of
(i) Cash and negotiable securities;
(ii) Debts due from contributories;
(iii) Debts due to the company and securities if any, available in respect thereof;
(iv) Movable and immovable properties belonging to the company; and
(v) Unpaid calls;
(b) If the company has failed, as to the causes of the failure; and
(c) Whether, in his opinion, further inquiry is desirable as to any matter relating to the promotion, formation, or failure of the company, or the conduct of the business thereof.
(2) The Official Liquidator may also, if he thinks fit, make a further report, or further reports, stating the manner in which the company was promoted or formed and whether in his opinion any fraud has been committed by any person in its promotion or formation, or by any officer of the company in relation to the company since the formation thereof, and any other matters which, in his opinion, it is desirable to bring to the notice of the 2*[Tribunal].
(3) If the Official Liquidator states in any such further report that in this opinion a fraud has been committed as aforesaid, the 2* [Tribunal] shall have the further powers provided in section 478.
(1) Where a winding up order has been made or where a provisional liquidator has been appointed, the liquidator1*[or the provisional liquidator, as the case may be,] shall take into hi s custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled.
1*[(1A) For the purpose of enabling the liquidator or the provisional liquidator, as the case may be, to take into his custody or under hi s control, any property, effects or actionable claims to which the company is or appears to be entitled, the liquidator or the provisional liquidator, as the case may be, may by writing request the Chief Presidency Magistrate or the District Magistrate within whose jurisdiction such property, effects or actionable claims or any books of account or other documents of the company may be found, to take possession thereof, and the Chief Presidency magistrate or the District Magistrate may thereupon after such notice as he may think fit to give to any party, take possession of such property, effects, actionable claims, books of account or other documents and deliver possession thereof to the liquidator or the provisional liquidator.
(1B) For the purpose of securing compliance with the provisions of sub-section (1A), the Chief Presidency Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary.]
(2) All the property and effects of the company shall be deemed to be in the custody of the2[Tribunal] as from the date of the order for the winding up of the company.
(1) The liquidator in a winding up by the 1 [Tribunal] shall have power, with the sanction of the 2 [Tribunal]-
(a) To institute or defend any suit, prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company;
(b) To carry on the business of the company so far as may be necessary for the beneficial winding up of the company;
(c) To sell the immovable and movable property and actionable claims of the company by public auction or private contract, with power to transfer the whole thereof to any person or body corporate, or to sell the same in parcels;
3*[(ca) To sell whole of the undertaking of the company as a going concern;]
(d) To rise on the security of the assets of the company any money requisite;
(e) To do all such other things as may be necessary for winding up the affairs of the company and distributing its assets.
(2) The liquidator in a winding up by the Court shall have power-
(i) To do all acts and to execute, in the name and on behalf of the company, all deeds, receipts, and other documents, and for that purpose to use when necessary, the company's seal;
4*[(ia) To inspect the records and returns of the company on the files of the Registrar without payment of any fee;]
(ii) To prove, rank and claim in the insolvency of any contributory, for any balance against his estate, and to receive dividends in the insolvency, in respect of that balance, as a separate debt due from the insolvent, and rateably with the other separate creditors;
(iii) To draw, accept, make and endorse any bill of exchange, hundi or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill, hundi, or note had been drawn, accepted, made or indorsed by or on behalf of the company in the course of its business;
(iv) To take out, in his official name, letters of administration to any deceased contributory and to do in his official name any other act necessary for obtaining payment of any money due from a contributory or his estate which cannot be conveniently done in the name of the company, and in all such cases, the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or recover the money, be deemed to be due to the liquidator himself;
Provided that nothing herein empowered shall be deemed to affect the rights, duties, and privileges of any Administrator-General;
(v) To appoint an agent to do any business which the liquidator is unable to do himself.
3*[(2A) The liquidator shall -
(a) Appoint security guards to protect the property of the company taken into his custody and to make out an inventory of the assets in consultation with secured creditors after giving them notice;
(b) Appoint, as the case may be, valuer, chartered surveyors or chartered accountant to assess the value the company's assets within fifteen days after taking into custody of property, assets referred to in sub-clause (a)and effects or actionable claims subject to such terms and conditions as may be specified by the Tribunal;
(c) Give an advertisement, inviting bids for sale of the assets of the company, within fifteen days from the date of receiving valuation report from the valuer, chartered surveyors or chartered accountants referred to in clause (b), as the case may be.
(2B) The liquidator shall, immediately after the order for winding up or appointing the liquidator as provisional Liquidator is made, issue a notice requiring any of the persons mentioned in sub-section (2) of section 454, to submit and verify a statement of the affairs of the company and such notice shall be served by the liquidator.
(2C) The liquidator may apply to the Tribunal for an order directing any person who, in his opinion, is competent to furnish a statement of the affairs under sections 439A and 454 and such person shall for the said purpose be served a notice by the liquidator in the matter as may be prescribed.
(2D) The liquidator may, from time to time, call any person for recording any statement for the purpose of investigating the affairs of the company which is being wound up and it shall be the duty of every such person to attend to the liquidator at such time and place as the liquidator may appoint and give the liquidator all information which he may require and answer all such questions relating to winding up of company as may be put to him by the liquidator.
(2E) Every bidder shall, in response to advertisement referred to in clause (c) of sub-section (2A), deposit, his offer in the manner as may be prescribed, with liquidator or provisional liquidator, as the case may be, within forty-five days from the date of the advertisement and the liquidator or provisional liquidator shall permit inspection of property and assets in respect of which bids were invited:- Provided that such bid may be withdrawn within three days before the last day of closing of the bid:-
Provided further that the inspection of property shall be open for not more than five days before closing of the bid.
(2F) The advertisement inviting bids shall contain the following details, namely:-
(a) Name, address of registered office of the company and its branch offices, factories and plants and the place where assets of the company are kept and available for sale;
(b) Last date for submitting bids which shall not exceed ninety days from the date of advertisement;
(c) Time during which the premises of the company shall remain open for inspection;
(d) The last date for withdrawing the bid;
(e) Financial guarantee which shall not be less than one-half of the value of the bid;
(f) Validity period of the bids;
(g) Place and date of opening of the bids in public;
(h) Reserve price and earnest money to be deposited along with the bid;
(i) Any other terms and conditions of sale which may be prescribed. (2G) The liquidator appointed shall-
(a) Maintain a separate bank account for each company under his charge for depositing the sale proceeds of the assets and recovery of debts of each company;
(b) Maintain proper books of account in respect of all receipts and payments made by him in respect of each company and submit half yearly return of receipts and payments to the Tribunal.]
(3) The exercise by the liquidator in a winding up by the Court of the powers conferred by this section shall be subject to the control of the Court; and any creditor or contributory may apply to the Court with respect to the exercise or proposed exercise of any of the powers conferred by this section.
The1*[Tribunal] may, by order, provide that the liquidator may exercise any of the powers referred to in sub-section ( 1 ) of section 457 without the sanction or intervention of the1*[Tribunal]:- Provided always that the exercise by the liquidator of such powers shall be subject to the control of the1[Tribunal].
458A - 2*Exclusion of certain time in computing periods of limitation
Notwithstanding anything in the Indian Limitation Act, 1908 (9 of 1908) or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the 3*[Tribunal], the period from the date of commencement of the winding up of the company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of the winding up order shall be excluded.]
The liquidator may, with the sanction of the Tribunal, appoint one or more chartered accountants or company secretaries or cost accountants or legal practitioners entitled to appear before the Tribunal under section 10GD to assist him in the performance of his duties.
(1) Subject to the provisions of this Act, the liquidator shall, in the administration of the assets of the company and the distribution thereof among its creditors, have regard to any directions which may be given by resolution of the creditors or contributories at any general meeting or by the committee of inspection.
(2) Any directions given by the creditors or contributories at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection.
(3) The liquidator-
(a) May summon general meetings of the creditors or contributories, whenever he thinks fit, for the purpose of ascertaining their wishes;
(b) Shall summon such meetings at such times, as the creditors or contributories, as the case may be, may, by resolution, direct, or whenever requested in writing to do so by not less than one-tenth in value of the creditors or contributories, as the case may be.
(4) The liquidator may apply to the 1 [Tribunal] in the manner prescribed, if any, for directions in relation to any particular matter arising in the winding up.
(5)Subject to the provisions of this Act, the liquidator shall use his own discretion in the administration of the assets of the company and in the distribution thereof among the creditors.
(6) Any person aggrieved by any act or decision of the liquidator may apply to the
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