What is Winding up of unregistered companies What is Power to wind up foreign companies, although dissolved Section 375 and 376 of Indian Companies Act 2013
Winding up of unregistered companies and Power to wind up foreign companies, although dissolved are defined under Section 375 and 376 of Indian Companies Act 2013. Provisions under these Sections are:
Section 375 of Indian Companies Act 2013 "Winding up of unregistered companies"
(1) Subject to the provisions of this Part, any unregistered company may be wound up under this Act, in such manner as may be prescribed, and all the provisions of this Act, with respect to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in sub-sections (2) to (4).
(2) No unregistered company shall be wound up under this Act voluntarily.
(3) An unregistered company may be wound up under the following circumstances, namely: -
(a) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;
(b) if the company is unable to pay its debts;
(c) if the Tribunal is of opinion that it is just and equitable that the company should be wound up.
(4) An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts -
(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one lakh rupees then due, has served on the company, by leaving at its principal place of business, or by delivering to the secretary, or some director, manager or principal officer of the company, or by otherwise serving in such manner as the Tribunal may approve or direct, a demand under his hand requiring the company to pay the sum so due, and the company has, for three weeks after the service of the demand, neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor;
(b) if any suit or other
legal proceeding has been instituted against any member for
any debt or demand due, or claimed to be due, from the
company, or from him in his character as a member, and
notice in writing of the institution of the suit or other
legal proceeding having been served on the company by
leaving the same at its principal place of business or by
delivering it to the secretary, or some director, manager or
(i) paid, secured or compounded for the debt or demand;
(ii) procured the suit or other legal proceeding to be stayed; or
(iii) indemnified the defendant to his satisfaction against the suit or other legal proceeding, and against all costs, damages and expenses to be incurred by him by reason of the same;
(c) if execution or other process issued on a decree or order of any Court or Tribunal in favour of a creditor against the company, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied in whole or in part;
(d) if it is otherwise proved to the satisfaction of the Tribunal that the company is unable to pay its debts.
Explanation.For the purposes of this Part, the expression "unregistered company" -
(a) shall not include -
(i) a railway company incorporated under any Act of Parliament or other Indian law or any Act of Parliament of the United Kingdom;
(ii) a company registered under this Act; or
(iii) a company registered under any previous companies law and not being a company the registered office whereof was in Burma, Aden, Pakistan immediately before the separation of that country from India; and
(b) save as aforesaid, shall include any partnership firm, limited liability partnership or society or co-operative society, association or company consisting of more than seven members at the time when the petition for winding up the partnership firm, limited liability partnership or society or co-operative society, association or company, as the case may be, is presented before the Tribunal.
Section 376 of Indian Companies Act 2013 "Power to wind up foreign companies, although dissolved"
Where a body corporate incorporated outside India which has been carrying on business in India, ceases to carry on business in India, it may be wound up as an unregistered company under this Part, notwithstanding that the body corporate has been dissolved or otherwise ceased to exist as such under or by virtue of the laws of the country under which it was incorporated.
What is Provisions of Chapter cumulative What is Saving and construction of enactments conferring power to wind up partnership firm, association or company, etc., in certain cases Section 377 and 378 of Indian Companies Act 2013