Winding up petition
Suraj Vishwakarma
(Querist) 23 October 2016
This query is : Resolved
Dear Sir,
My friend has sold goods, against which he has raised Invoices. my query is where should i field winding up petition it will be filed before High Court or Before NCLT (National Company Law Tribunal), as NCLT has been formed under the Company Act, 2013 and is effective from 1st June, 2016.
The companies paid-up capital is Rs.1Lakh only, it is possible to recover my all pending amount as it is more than paid-up capital.
Or else what remedy we have with us.
Please advise sir
Devajyoti Barman
(Expert) 23 October 2016
NCLT does not have power to deal with petition for winding up.
Kumar Doab
(Expert) 23 October 2016
Agreed with Expert Mr. Devajyoti Barman.
adv.bharat @ PUNE
(Expert) 23 October 2016
Agreed with expert.
Amount can be recovered.
Rajendra K Goyal
(Expert) 23 October 2016
discuss in detail with local lawyer by showing all related documents.
R.K Nanda
(Expert) 23 October 2016
Contact local lawyer.
Guest
(Expert) 23 October 2016
Mr. Suraj,
Your query is purely of academic nature.
However, can you clarify, how your friend is going to be benefited by winding up of the company with merely a paid up capital of Rs. one lakh? Don't you think the company would also have other liabilities also?
rajeev sharma
(Expert) 24 October 2016
Winding up of the company
On your site, while going through the resolved queries, I came across a quarry about winding up of the company. The author wanted to know whether the application for winding up is to be filed before NCLT or High Court and since the dues against company were more than the paid up capital of the company how it may recover the dues.
Some of your experts opined that NCLT does not have power to deal writ for winding up of company.
I humbly and politely beg to differ. Since the date of notification, 1st June, 2016 it is only the only authority to deal with Companies Act 2013 to deal with matters of winding of the company.
Now comes the second part of the quarry of the author.
HALSBURRY’S LAW OF ENGLAND defines winding up as “Winding up is a proceeding by means of which dissolution of a company is brought about and in the course of which its assets are collected and realized and applied in the repayment of its debt and when these are satisfied the remaining amount is applied for returning to its members the sum which they have contributed to the company in accordance with article of company.
In Amalgamated Commercial Traders (P) Ltd. v. A.C.K. Krishnaswami, (1965) 35 Company Cases 456 (SC), this Court held that "It is well-settled that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court."”
Thus it is clear that the proceedings are not the proceedings for adjudication of debt. any creditor who has a decree of debt against the company and company fails to pay decreed amount may file a winding up petition
Rajendra K Goyal
(Expert) 24 October 2016
Reply the question from expert P.S. Dhingra.
Guest
(Expert) 24 October 2016
Dear Shri Rajeev Sharma,
Do you believe that the company would have been defaulter in payment of single claimant, i.e., the friend of the querist?
Clearly, it is a thoughtless academic query of the querist.
Moreover, he has not given any description as to what steps his friend has taken to pursue the company to pay his dues. More so, your case law also states, "It is well-settled that a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court."
rajeev sharma
(Expert) 02 November 2016
Sri Dhingra
For presenting winding up petition it is enough that the company failed to pay the dues of any creditor having over due amount of Rs one Lac the creditor may file winding up petition. But the company court will not adjudicate the dues this adjudication is to be made by court of competent jurisdiction. once it is adjudicated and not paid winding up petition may be filed by even a single creditor.
the query may be academic but once even a student approaches us we being senior are under an obligation to guide him/her
Kumar Doab
(Expert) 02 November 2016
Mr. Rajeev Sharma,
We are in agreement with you.
Every querist may not necessarily be student.
Every student may not necessarily post academic query.
Every query is not academic.
Every query, moderation by experts, sharing brings enrichment for everyone.
Any/Every/most of the query must not be rejected branding these as academic.
There should not be full blown attempt to deter majority of the experts from posting in the threads, by branding queries as academic or response by experts as mere 'Tutorials'.
The experts have exerted in many queries and querists and even members and experts, everyone has gained from such threads.
The academic queries; are also posted at LCI and by one's own choice, one may post in such queries.
Kumar Doab
(Expert) 02 November 2016
Another thread that may be looked into is at:
http://www.lawyersclubindia.com/experts/Whether-a-lady-residing-as-live-in-relationship-is-entitled-to-maintance-u-s-125-cr-pc-621231.asp
Guest
(Expert) 02 November 2016
How the link of question of lady residing as live in relation is concerned with the winding up of company?
Guest
(Expert) 02 November 2016
Dear Rajeev Sharma,
You can feel free to share your knowledge with the students, who desire 100% spoon feeding without applying their own minds. So far myself is concerned, I don't want that the prospective law graduates should come out like jhola chhap professionals or to prove merely as document writers after obtaining degrees, when they don't prefer to concentrate on their study material and to acquire analytical power. They must apply their own minds, if they really want to become some effective lawyer.
Best of wishes.
