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Procedure for Winding up of listed co

Anshul (--) (26 Points)

25 December 2008

Please tell me the Procedure for Winding up of a Listed Company.

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4 Replies

CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 25 December 2008

First delist the company vide SEBI (Delisting of Securities) Guidelines 2003

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CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 25 December 2008

Winding up of a company is defined as a process by which the life of a company is brought to an end and its property administered for the benefit of its members and creditors. An administrator, called the liquidator, is appointed and he takes control of the company, collects its assets, pays debts and finally distributes any surplus among the members in accordance with their rights. At the end of winding up, the company will have no assets or liabilities. When the affairs of a company are completely wound up, the dissolution of the company takes place. On dissolution, the company's name is struck off the register of the companies and its legal personality as a corporation comes to an end.

The procedure for winding up differs depending upon whether the company is registered or unregistered. A company formed by registration under the Companies Act, 1956 is known as a registered company. It also includes an existing company, which had been formed and registered under any of the earlier Companies Acts.

CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 25 December 2008

Voluntary Winding Up of a Registered Company

When a company is wound up by the members or the creditors without the intervention of Tribunal, it is called as voluntary winding up. It may take place by:-

By passing an ordinary resolution in the general meeting if :- (i) the period fixed for the duration of the company by the articles has expired; or (ii) some event on the happening of which company is to be dissolved, has happened.
By passing a special resolution to wind up voluntarily for any reason whatsoever.

Within 14 days of passing the resolution, whether ordinary or special, it must be advertised in the Official Gazette and also in some important newspaper circulating in the district of the registered office of the company.

The Companies Act (Section 484) provides for two methods for voluntary winding up:-

Members' voluntary winding up

It is possible in the case of solvent companies which are capable of paying their liabilities in full. There are two conditions for such winding up:-

A declaration of solvency must be made by a majority of directors, or all of them if they are two in number. It will state that the company will be able to pay its debts in full in a specified period not exceeding three years from commencement of winding up. It shall be made five weeks preceding the date of resolution for winding up and filed with the Registrar. It shall be accompanied by a copy of the report of auditors on Profit & Loss Account and Balance Sheet, and also a statement of assets and liabilities upto the latest practicable date; and
Shareholders must pass an ordinary or special resolution for winding up of the company.

The provisions applicable to members' voluntary winding up are as follows:-

Appointment of liquidator and fixation of his remuneration by the General Meeting.
Cessation of Board's power on appointment of liquidator except so far as may have been sanctioned by the General Meeting, or the liquidator.
Filling up of vacancy caused by death, resignation or otherwise in the office of liquidator by the general meeting subject to an arrangement with the creditors.
Sending the notice of appointment of liquidator to the Registrar.
Power of liquidator to accept shares or like interest as a consideration for the sale of business of the company provided special resolution has been passed to this effect.
Duty of liquidator to call creditors' meeting in case of insolvency of the company and place a statement of assets and liabilities before them.
Liquidator's duty to convene a General Meeting at the end of each year.
Liquidator's duty to make an account of winding up and lay the same before the final meeting.

Creditor's voluntary winding up

It is possible in the case of insolvent companies. It requires the holding of meetings of creditors besides those of the members right from the beginning of the process of voluntary winding up. It is the creditors who get the right to appoint liquidator and hence, the winding up proceedings are dominated by the creditors.

The provisions applicable to creditors' voluntary winding up are as follows:-

The Board of Directors shall convene a meeting of creditors on the same day or the next day after the meeting at which winding up resolution is to be proposed. Notice of meeting shall be sent by post to the creditors simultaneously while sending notice to members. It shall also be advertised in the Official Gazette and also in two newspapers circulating in the place of registered office.
A statement of position of the company and a list of creditors along with list of their claims shall be placed before the meeting of creditors.
A copy of resolution passed at creditors' meeting shall be filed with Registrar within 30 days of its passing.
It shall be done at respective meetings of members and creditors. In case of difference, the nominee of creditors shall be the liquidator.
A five-member Committee of Inspection is appointed by creditors to supervise the work of liquidator.
Fixation of remuneration of liquidator by creditors or committee of inspection.
Cessation of board's powers on appointment of liquidator.

As soon as the affairs of the company are wound up, the liquidator shall call a final meeting of the company as well as that of the creditors through an advertisement in local newspapers as well as in the Official Gazette at least one month before the meeting and place the accounts before it. Within one week of meeting, liquidator shall send to Registrar a copy of accounts and a return of resolutions.

CA. Dashrath Maheshwari (TaXpert) (15103 Points)
Replied 25 December 2008

Before a company can initiate such proceedings under the Companies Act, it must seek clearance from the government for closure of the unit and displacement of labour under the Industrial Disputes Act.

For final settlement to members of the Company Board, prior permission of RBI is required. This permission is to be taken once the final amount for payment has been ascertained.