Shinil Nambrath (Service) 29 July 2016

Query : can we file a winding up petition

Dear Learned Members,

As a trade creditor, our company wants to file a Winding Up Petition against our client company(debtor) who owes us Rs. 47 Lacs for the supply of goods to them. We have tried to contact them (directors) but they are not responding and so far we have not yet send any written demand notice to them.

Further the factories have been seized by their financial creditor(bank) and hence they have halted their business. Also, we are not aware whether the banks have started any recovery process under sarfaesi. In this regard, please let me know whether our company as a trade creditor can initiate the winding up process and whether the high court will accept our plea.

Thanking you,

CS Shinil Nambrath.

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9 Replies

Law Aspire (Legal) 30 July 2016

Firstly you are requied to send a written Demand Notice to the said Debtor.

Winding up Petition can be filed only after that.

Shinil Nambrath (Service) 30 July 2016

Dear Sir,

Thank you very much for your reply. Further, can u please tell me whether our winding up petition will be accepted by court(after sending demand notice and complying with other procedures) considering the fact that the bank has already siezed the assets of the debtor.Or is it better to file a civil suit against the debtor.

Law Aspire (Legal) 03 August 2016

Ordering Winding up is the discretion of the Court. Merely because any one of the circumstances enumerated in Section 433 of Co. Act 1956 or Section 271 of the Companies Act 2013 exists, it is not mandatory for the court to order winding up of the Company . It will examine various factors before making a winding up order.

SARFAESI has an overriding effect over the Companies Act in view of the provisions contained in Section 35 of that Act and the same is confirmed by Supreme Court in the case of Allahabd Bank v. Canara Bank. [2000] 101 Comp Cas 64 : [2004] 4 SCC 406.