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The State of Andhra Pradesh, by Its Secretary, Industries (i.F.), Dept., Hyderabad Vs. Taj Glass Works Ltd., Hyderabad - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Case NumberCompany Application No. 123 of 1960 in Original Petition No. 34 of 1958
Judge
Reported inAIR1963AP132
ActsCompanies Act, 1956 - Sections 441 and 551; Companies (Court) Rules, 1959 - Rule 311
AppellantThe State of Andhra Pradesh, by Its Secretary, Industries (i.F.), Dept., Hyderabad;taj Glass Works L
RespondentTaj Glass Works Ltd., Hyderabad;
Advocates:T. Lakshmaiah, Official Liquidator and ;N.V.B. Sankara Rao, 2nd Government Pleader for Registrar of Companies
Excerpt:
.....prescribed under section 551 should be reckoned from date of petition for winding up or from date of winding up order - 'with in one year after its commencement' under section 551 means with in one year after actual commencement of winding up of company - official liquidator has to file statements required by section 551 within one month of expiry of one year after passing of winding-up order. - - 12. the expression 'winding up' means a proceeding by means of which the dissolution of a company is brought about and in the course of which its assets are collected and realised and applied in payment of its debts, and when these are satisfied, returning to its members the sums which they have contributed to the company, or paying them other monies due to them in their character of..........for winding up under the deeming clause in section441 has retrospective effect only for the above purposesend not with respect to the duties of the official liquidator. on a true construction of the provisions of the section 551 of the companies act and rule 311 of the companies (court) rules, i am of opinion that the officialliquidator shall have to file the statements required bythat section within one month of the expiry of one yearafter the passing of the winding-up order. a direction willissue to the registrar of companies to accept the statement prepared and furnished by the liquidator under section 551 of the act as from the date of the winding-uporder.
Judgment:
ORDER

Satyanarayana Raju, J.

1. The question which arises for decision in this application is as to the scope of the duly of the Official Liquidator under Section 551 of the Indian Companies Act, 1956.

2. That Section in so far as is material for the present purpose, reads thus :

'(1) If the winding up of a Company is not concluded within one year after its commencement, the liquidator shall, unless he is exempted from so doing either wholly or in part by the Central Government, within two months of the expiry of such year and thereafter until the winding up is concluded, at intervals of not more than one year or at such shorter intervals, if any, as may be prescribed, file a statement in the prescribed form and containing the prescribed particulars duly audited, by a person qualified to act as auditor of the company, with respect to the proceedings in, and position of, the liquidation-

(a) In the case of a winding up by or subject to the supervision of the Court, in Court;

xx xx xx (2) When the statement is filed in Court under Clause (a) of Sub-section (1), a copy shall simultaneously be tiled with the Registrar and shall be kept by him along with the other records of the Company .......'

3. The Official Liquidator and the Registrar of Companies are at variance with regard to interpretation of this Section. It is contended by the Registrar of Companies that Section 551 must be read along with Section 441 of the Act and so read, the winding up of a Company should be deemed to commence at the time of the petition for winding up and, therefore, the Official Liquidator has to file the statements prescribed by Section 551 with-in two months of the expiry of one year from that date. On the other hand it is argued by the Liquidator that the period prescribed by Section 551 should he reckoned from the date of the actual winding up order and not from the date of the presentation of the petition for winding up.

4. The question to be decided, therefore, is whether the period prescribed under Section 551 should be reckoned from the date of the petition for winding up or front the date of the winding up order.

5. Now, the winding up of a company may be either by the Court; or voluntary; or subject to the supervision of the Court. Section 439 prescribes that an application to the Court for the winding up of a company shall be by petition presented by the company, or by any creditor or creditors, or by any contributory or contributories, or by all or any of them whether together or separately; by the Registrar; or by any person authorised by the Central Government in that behalf. On hearing the winding up petition, the Court may dismiss it, or adjourn the hearing, or make an interim order, or make an order for the winding up of the company. In the last mentioned case, the order should be to the effect that the company be wound up by tie Court under the Companies Act. At any time after the presentation of the winding up petition, the Court may appoint the Official Liquidator to be liquidator provisionally. The Official Liquidator ceases to hold office as provisional liquidator and becomes the liquidator of the company, on a winding up order being made. Section 452 provides that a liquidator shall he described by the style of 'The Official Liquidator' of the particular company in respect of which he acts.

Section 454 provides that where the Court has made a winding up order or appointed the Official Liquidator as provisional liquidator, unless the Court 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, 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 Court may, for special reasons, appoint. This 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 the date the manager, secretary or other chief officer of the company, After the receipt of the statement prescribed under Section 454, the official liquidator shall, as soon as practicable and not later than six months from the date of the order, submit a preliminary report to the Court. Under Section 456, where a winding up order has been made or where a provisional liquidator, has been appointed, the liquidator or the provisional liquidator, as the case may be, shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. All the property and effects of the company shall be deemed to be in the custody of the Court as from the date of the order for the winding up of the company.

6. Section 457 enumerates the powers of the liquidator. The liquidator's principal duties are to take possession of and protect the assets of the company, to make out the requisite lists of contributories and creditors, to have disputed cases adjudicated upon, to realise the assets and to apply the proceeds in payment of the company's debts and liabilities in due course of administration, and having done that to divide the surplus among the contributories and to adjust their rights.

7. From the provisions referred to above, it is plain that the statutory powers and duties vested in the liquidator are to be exercised with reference to a particular company only after the winding up order has been passed, except in a case where he is appointed provisional liquidator.

8. Now, reverting to Section 551, it provides that if the winding up of a company is not concluded within one year after its commencement, the liquidator shall me a statement in the prescribed form with the preserved particulars, duly audited, with respect to the proceedings in, and position of, the liquidation, it is argued that the word 'commencement' in this Section must bear the same meaning as it has under Section 441 of the Act, namely, that the winding up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the winding up. Except in cases where the Official Liquidator is appointed as provisional liquidator, the duties and powers vested in the official liquidator can be exercised by him only after a winding up order is passed. The property and effects of the company vest in him only after the winding up order is made. The office-bearers of the company are required to put him in possession of information with regard to the affairs of the company within twenty-one days after that date. Then It is that the liquidator can acquaint himself with the affairs of the company in the light of the information supplied to him by the office-bearers of the company.

Section 551, be it noted, requires him to nave the accounts of the company audited by an auditor duly qualified. This he can only do after the books of the account of the company are handed over to him. The Official Liquidator has, no means of acquainting himself with the affairs of the company till the winding up order is made and the property vested in him. If so, the duty enjoined by Section 551 of the Act on the official liquidator can be performed by him only after the date of the winding up order. Therefore, the words in Section 551 'within one year after its commencement' can only mean within one year after the actual commencement of the winding up of the company, and not within one year after the notional or fictional commencement envisaged by Section 441. If the view contended for by the Registrar is to be accepted, it would necessarily result in making it incumbent on the Official Liquidator to provide the information prescribed by Section 551 even before he is put in charge of the affairs of the company. This is a construction which is hardly likely to have been contemplated by the Legislature.

9. Section 551 of the Indian Companies Act corresponds to Section 342(1) of the English Companies Act, 1948, which reads:

'If where a company is being wound up the winding up is not concluded within one year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the winding up is concluded, send to the Registrar of Companies a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation.'

10. Section 441 of the Indian Companies Act corresponds to Section 229 of the English Companies Act, which is as follows:

'(1) Where, before the presentation of a petition for the winding up of a company by the Court, a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the Court on proof of fraud or mistake, thinks fit otherwise to direct, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken.

(2) In any other case, the winding up of a company by the Court shall be deemed to commence at the time of the presentation of the petition for the winding up.'

11. It will he profitable to read the commencing words of Section 551 of the Indian Act and Section 342 of the English Act in juxtaposition. The former reads

'If the winding up of a company, is not concluded within one year after its commencement,'

whereas the latter reads

'if where a company is being 'wound up, the winning up is not concluded within one year after its commencement.'

So read it will be found that Section 551 omits the words 'where a company is being wound up' which are contained in Section 342 of the English Act. On a fair reading of the two provisions, it looks to me that both of them convey the same meaning.

12. The expression 'winding up' means a proceeding by means of which the dissolution of a company is brought about and in the course of which its assets are collected and realised and applied in payment of its debts, and when these are satisfied, returning to its members the sums which they have contributed to the company, or paying them other monies due to them in their character of members. The commencement of the winding up must therefore be understood in the above sense, that is, from the date of the winding up order.

12a. The learned Government Pleader relies upon rule 311 of the Companies (Court) Rules, 1959, read with form No. 148 as supporting his contention that it is The date of the petition for winding up that should be taken into account for the purpose of reckoning the period provided by Section 551.

Rule 311 reads as follows:

'(1) The Official Liquidator shall file his first annual statement under Section 551 within one month after the expiry of a year from the date of the commencement of the winding up and thereafter his subsequent statements at intervals of one year until the conclusion of the Winding up. The annual statements to be filed by the Official Liquidator shall be in Form No. 148.'

13. The rule itself follows the language employed in the Section. It is, no doubt, true, that column 3 of form No. 148 provides that in addition to the date of the winding up order, the date of the commencement of winding up has to be mentioned. The particulars required to be furnished in form No. 148 may Indicate that the liquidator should give the information as from the date of the filing of the petition, but it is to be observed that the form cannot control the meaning of the Section.

14. Rule 175 of the English Companies (Winding up) Rules, which corresponds to Rule 311 of the Indian Companies (Court) Rules, reads as follows:

'(1) The liquidator shall, at the expiration of six months from the date of the winding up order and at the expiration of every succeeding six months thereafter until his release, transmit to the Board of Trade a copy of the Cash Book for such period in duplicate, together with the necessary vouchers and copies of the certificates of audit by the Committee of Inspection. He shall also forward with the first accounts, a summary of the company's statement of affairs, showing thereon the amounts realised, end explaining the cause of the non-realisation of such assets as may be unrealised. The liquidator shall also at the end of every six months forward to the Board of Trade, with his accounts, a report upon the position of the liquidation of the Company in such form as the Board of Trade may direct.

(2) When the assets of the Company have been fully realised and distributed, the liquidator shall forthwith send in his accounts to the Board of Trade, although the six months may not have expired.

(3) The accounts sent in by the liquidator shall be Verified by him by affidavit.'

15. This rule is more specific and requires the liquidator to submit the information at the expiration of six months from the date of the winding up order.

16. Under Section 441(2) in the case of a winding up by the Court, the winding up dates from the presentation of the petition. The effect of a winding up order is to avoid all dispositions of the property of the company made between the commencement of the winning up, that is, the presentation of the petition, and the winding up order, unless the Court otherwise orders. Sections631 - 537 deal with the effect of winding up on antecedent and other transactions. The expression 'commencement of winding up', defined in Section 441(2) has reference to the dispositions of the property of the companymade between the date of the presentation of the petitionfor winding up and passing of the winding up order. Anorder for winding up under the deeming clause in Section441 has retrospective effect only for the above purposesend not with respect to the duties of the Official liquidator. On a true construction of the provisions of the Section 551 of the Companies Act and Rule 311 of the Companies (Court) Rules, I am of opinion that the OfficialLiquidator shall have to file the statements required bythat Section within one month of the expiry of one yearafter the passing of the winding-up order. A direction willIssue to the Registrar of Companies to accept the statement prepared and furnished by the liquidator under Section 551 of the Act as from the date of the winding-uporder.


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