Winding up petition


As a creditor, I want to file a Winding Up Petition against my client who owes me money. Kindly guide me the procedure to file. Also pls inform for how much time it takes to get the final judgement.  Also pls guide if there is any other better way .

 
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Consultant

bt y don't you approach any nearby consultant who can guide you through .. however kindly mention that whether any kind of recovery suit/ 138 NI or any such legal proceeding intitated by you  is pending before any Court against that Company ... 

Ajitabha Pandey 

8756272683, pandeyajitbaha@gmail.com.

 
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Mr. Pandey, Thanks for your immediate response. Pls note we have not initiated any procedding against our client.

 
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Consultant

so directly u will apply for winding up petition!!  ...dear state the facts of th case .. ... 

 
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Advocate-on-Record Supreme Court of India

Dear Querist,

 

Before an Winding-up Petition filed, you need to first send a statutory notice giving him 2 months time to show reasons as to why you should not file the said petition in appropriate company court. In the said notice, you will also need to disclose the debt that has been acrued in your favour and such debt is legally enforceable debt. If within two months, the other party does not respond or you are not happy with the reply to your statutory notice, you may then ask your lawyer to get such filed in the Court mentioned above.

 

Trust this would suffice.

 
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Advocate and Corporate Consultant

Dear Sir,

Under the provisions of the Companies Act, 1956, especially sections 433, 434 and 439 ,  a creditor has a right to file a winding up petition against a Company registered as a limited company under the Companies Act, 1956 provided, the amount of debt is not less than Rs.500/-. There is also, some criteria to be complied with before a petition for winding up petition is filed and in brief, it is as under.

1. The debt should be not less than Rs.500/-.

2. The debt should be admitted one and not disputed.

3. The debt should be live.

4. A 21 days statutory notice must have been issued and the debtor failed to repay the debt.

5. The object of the winding up petition should not be recovery.

6. You must also prove in some circumstances that, the company is commercially insolvent.

If the above criteria are complied with, a petition to wind up a company will lie. There is also a possibility that the Management of the company in order to save the company from being wound up may come for a compromise before the court in which event, the courts will grant time to the creditor to pay the debt provided the company proves its bonafides . If the creditor pays the debt, you can withdraw the petition and the Courts also normally allow the same as, the Courts will use the winding up as a last resort. The winding up petition should be filed in the High Court of the state where the Registered Office of the Company is situated. The court fee is quite nominal.  As far time is concerned, there is no fixed parameter to say and it depends upon so many issues and minimum may be 6 months to 1 year and maximum varies depending upon the circumstances.  In the first stage i.e., before the admission of the petition itself, the Court will look in to all aspects thoroughly as once, the petition is admitted, it will be followed by publication of notice of the petition to the General public in the News Papers which will cause grave injury to the company in the event, the winding up petition was later found to be not maintainable.  If you are sure of the debt, you can therefore file a winding up petition.The other remedy is to file a civil suit for a decree.

Regards,

Murali Krishna W

 
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IF A CIVIL SUIT FOR RECOERY OF DEBT IS PENDING BEFORE A CIVIL COURT. CAN WINDING PETITION BE FILED AND WILL IT BE PERMITTED

 
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Advocate and Corporate Consultant

Dear Sir,

Both are independent rights of a creditor. There is no express bar against filing of a winding up petition by a creditor  against the debtor company in the High Court having jurisdiction even though the said creditor has filed a suit for recovery provided, the requisite criteria is complied with to file the winding up petition. It is no doubt that when the suit is pending, the High court may not be completely inclined  to grant the order to wind up the company in the first instance but, not if the case is established and the need to file the winding up is justified. Winding up petition is not for recovery while the suit is to recover. Under section 446 of the Companies Act, 1956, suits pending against a company which is wound up shall get stayed and the suits will not proceed further except with the leave of the court. If and when the suit is decreed and the debtor company is wound up, the creditor cannot go for execution of the decree except that you will file a claim in the form of affidavit of proof of debt with the Official Liquidator. First of all, you should say the circumstances that led to filing of both the winding up petition and civil suit and then answer to your question can be more reasoning.

Regards,


Murali Krishna W

 
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Which provision deals with the amount of court fess? Does the turnover or standing of a compny result in change in courts fees like on a ad valorem basis or is the fees fixed? I need to know about the court fees required in Allahabad High Court.
 
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When a creditor wants to file a petition for winding up of a company, why only High Court has the jurisdiction in that ?

 
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