How to wind up a company part-3

Credits and Acknowledgments
Sundar Rajan S
2

3
Legends used in the Presentation
Act Companies Act, 2013
Amended
Regulation
Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process)
(Amendment) Regulations, 2020
Board / IBBI Insolvency and Bankruptcy Board of India
Chapter Chapter of the Regulation
Code / IBC Insolvency and Bankruptcy Code
CVLA Corporate Voluntary Liquidation Account
Reg. / Regulation Insolvency and Bankruptcy Board of India (Voluntary Liquidation Process)
Regulations, 2017
Registrar/ROC Registrar of Companies
Sec(s) Section(s) of the Code
Tribunal National Company Law Tribunal
w.e.f. with effect from

Presentation Schema
4
Overview
Meaning of certain
terms
Commencement of
Liquidation
Appointment and
Remuneration of
Liquidator
Powers and
Functions of the
Liquidator
ClaimsRealisation of Assets
Proceeds of
Liquidation and
Distribution of
Proceeds

The Process of Voluntary Winding up of solvent Company is shifted from the Companies Act, 2013 to Insolvency
and Bankruptcy Code, 2016 w.e.f. 1st April, 2017
Provisions of the Act with respect to voluntary winding up are omitted w.e.f. 15th November, 2016
Governing provisions for voluntary winding up are now under Chapter V of the Code read with Regulation made
there under
6

8
• It means a person who is registered with the Board as an information utility under Sec 210Information utility
• It means a person enrolled under Sec 206 with an insolvency professional agency as its
member and registered with the Board as an insolvency professional under Sec 207
Insolvency professional
• It means the stakeholders entitled to proceeds from the sale of liquidation assets under Sec
53
• It generally includes workmen and employees, operational creditors, financial creditors,
preference shareholders and equity shareholders
Stakeholders

A declaration from majority of the directors of the Company verified by an affidavit stating that,
• they have made a full inquiry into the affairs of the Company and they have formed an opinion that either the Company has
no debt or that it will be able to pay its debts in full from the proceeds of assets to be sold in the voluntary liquidation; and
• the Company is not being liquidated to defraud any person
Declaration stated above shall be accompanied with the following documents:
• Audited financial statements and record of business operations of the Company for the previous 2 years or for the period
since its incorporation, whichever is later
• Report of the valuation of the assets of the Company, if any prepared by a registered valuer
Requirements before the commencement of Liquidation
Process – Sec 59(3)(a) & (b)
10
On compliance with the following conditions, the proceedings for voluntary liquidation is commenced
The declaration shall list each debt of the Company as on that date and state that the Company will be able to pay all its
debts in full from the proceeds of assets to be sold in the liquidation

Passing of Resolution – Sec 59(3)(c)
11
Within 4 weeks of declaration from
directors, there shall be,
a special resolution of the members of the Company
in a general meeting
a resolution of the members of the Company in a
general meeting requiring the Company to be liquidated
voluntarily as a result of
requiring the Company to be liquidated voluntarily
and appointing an insolvency professional to act as
the liquidator; or
expiry of the period of its duration, if any, fixed by its
articles or on the occurrence of any event in respect of
which the articles provide that the Company shall be
dissolved, as the case may be
and appointing an insolvency professional to act as the
liquidator
Where the Company owes any debt to any person, creditors representing 2/3rd in value of the debt of the
Company shall also approve the resolution within 7 days of the resolution passed in the general meeting

The Company shall notify the ROC and the Board
about the resolution passed in general meeting or
creditors meeting as the case may be, to liquidate
the Company*
within 7 days of such resolution or the subsequent
approval by the creditors, as the case may be
Intimation to ROC and the Board – Sec 59(4) & (5)
12
Subject to approval of the creditors, the voluntary liquidation proceedings in respect of a Company shall be
deemed to have commenced from the date of passing of the resolution under Sec 59(3)(c)
* Intimation about resolution passed in the general meeting shall be filed with the Registrar in Form MGT-14

The Company shall, from the liquidation commencement date cease to carry on its business except as far as required
for the beneficial winding up of its business
Notwithstanding the provision stated above, the Company shall continue to exist until it is dissolved under Sec 59(8)
Effect of liquidation – Reg. 4
13
Sec 59(8) deals with Tribunal’s order stating that the Company shall be dissolved from the date of that order

Chapter III - Appointment and
Remuneration of Liquidator
14

Appointment of Liquidator – Reg. 5
15
An insolvency professional shall not be appointed by a Company as the liquidator if he is not eligible under Reg. 6 (discussed in
subsequent slide)
The resolution passed under Sec 59(3)(c) shall contain the terms and conditions of the appointment of the liquidator, including
the remuneration payable to him

Eligibility for appointment as liquidator – Reg. 6
16
A person shall be considered independent of the
Company, if he, at any time in the last 3 years
is eligible to be appointed as an
independent director on the board of the
Company under Sec 149 of the Act
is not a related party of the Company
has not been an employee or proprietor or
a partner
of a firm of auditors or secretarial auditors
or cost auditors of the Company; or
of a legal or a consulting firm, that has or
had any transaction with the Company
contributing 10% or more of the gross
turnover of such firm
An insolvency professional shall be eligible to be appointed as a liquidator if he, and every partner or director of the
insolvency professional entity of which he is a partner or director is independent of the Company

Contd.
An insolvency professional shall not be eligible to be appointed as a liquidator if he, or the insolvency professional
entity of which he is a partner or director is under a restraint order of the Board
A liquidator shall disclose the existence of any pecuniary or personal relationship with the concerned Company or
any of its stakeholders as soon as he becomes aware of it, to the Board and the Registrar
An insolvency professional shall not continue as a liquidator if the insolvency professional entity of which he is a
director or partner, or any other partner or director of such insolvency professional entity represents any other
stakeholder in the same liquidation
17
The remuneration payable to the liquidator shall form part of the liquidation cost – Reg. 7

Chapter IV – Powers and Functions of
the Liquidator
18

Reporting – Reg. 8
The liquidator shall prepare and submit the following reports in the manner specified under the Regulation
• Preliminary Report
• Annual Status Report
• Minutes of consultations with stakeholders, and
• Final Report
Subject to other provisions of the Reg., the liquidator shall make the reports and minutes referred above, available to a
stakeholder in either electronic or physical form, on receipt of,
• an application in writing
• cost of making such reports available to it, and
• an undertaking from the stakeholder that it shall maintain confidentiality of such reports and shall not use these to cause
an undue gain or undue loss to itself or any other person
19

Preliminary Report – Reg. 9
The liquidator shall submit a Preliminary Report to the Company within 45 days from the liquidation commencement date,
detailing:
• the capital structure of the Company
• the estimates of its assets and liabilities as on the liquidation commencement date based on the books of the Company*
• Whether he intends to make any further inquiry into any matter relating to the promotion, formation or failure of the
Company or the conduct of the business thereof; and
• the proposed plan of action for carrying out the liquidation, including the timeline within which he proposes to carry it
out and the estimated liquidation costs
20
* If the liquidator has reasons to believe, to be recorded in writing, that the books of the Company are not reliable, he
shall also provide such estimates based on reliable records and data otherwise available to him

Registers and books of account – Reg. 10
21
Cash Book Ledger Bank Ledger
Register of Fixed Assets
and Inventories
Securities and
Investment Register
Register of Book Debts
and Outstanding Debts
Tenants Ledger Suits Register Decree Register
Register of Claims and
Dividends
Contributories Ledger Distributions Register Fee Register Suspense Register Documents Register
Books Register
Register of unclaimed dividends
and undistributed proceeds
such other books or registers as may be
necessary to account for transactions entered
into by him in relation to the Company
Liquidator shall maintain the following registers and books, as may be applicable, in relation to the liquidation of the Company
The liquidator shall keep receipts for all payments made or expenses incurred by him
Liquidator shall preserve a physical or an electronic copy of the reports, registers and books of account referred to in
Reg. 8 and 10 for at least 8 years after the dissolution of the Company, either with himself or with an information utility

Engagement of professionals – Reg. 11
A liquidator may engage professionals to assist him in the discharge of his duties, obligations and functions for a reasonable
remuneration and such remuneration shall form part of the liquidation cost
The liquidator shall not engage a professional as stated above, who is his relative, is a related party of the Company or has
served as an auditor of the Company at any time during the 5 years preceding the liquidation commencement date
A professional engaged or proposed to be engaged as stated above shall disclose the existence of any pecuniary or personal
relationship with any of the stakeholders, or the Company as soon as he becomes aware of it, to the liquidator
22

Consultation with stakeholders – Reg. 12
The stakeholders consulted under Sec 35(2) of the Code shall extend all assistance and cooperation to the liquidator to
complete the liquidation of the Company
The liquidator shall maintain the particulars of any consultation with the stakeholders made under this Regulation
23
Sec. 35(2) deals with the liquidator’s power to consult any of the stakeholders entitled to distribution of proceeds

Extortionate credit transactions – Reg. 13
A transaction shall be considered an extortionate credit
transaction where the terms:
require the Company to make exorbitant payments in
respect of the credit provided; or
are unconscionable under the principles of law relating to
contracts
24
Any debt extended by any person providing financial services which is in compliance with any law for the time being in force in
relation to such debt shall in no event be considered as an extortionate credit transaction

Public announcement by the liquidator – Reg. 14
The liquidator shall make a public announcement in Form A of Schedule I within 5 days from his appointment
The public announcement shall,
• call upon stakeholders to submit their claims as on the liquidation commencement date; and
• provide the last date for submission of claim, which shall be 30 days from the liquidation commencement date
The announcement shall be published,
• in one English and one regional language newspaper with wide circulation at the location of the registered office and
principal office, if any, of the Company and any other location where in the opinion of the liquidator, the Company
conducts material business operations
• on the website, if any, of the Company; and
• on the website, if any, designated by the Board for this purpose
25

27
• A person, who claims to be a stakeholder, shall prove his claim for debt or dues to him, including interest, if
any, as on the liquidation commencement date
Proof of claim
[Reg. 15]
• A person claiming to be an operational creditor of the Company, other than a workman or employee, shall
submit proof of claim to the liquidator in person, by post or by electronic means in Form B of Schedule I
Claims by operational
creditors
[Reg. 16]
• A person claiming to be a financial creditor of the Company shall submit proof of claim to the liquidator in
electronic means in Form C of Schedule I
Claims by financial
creditors
[Reg. 17]
• A person claiming to be a workman or an employee of the Company shall submit proof of claim to the
liquidator in person, by post or by electronic means in Form D of Schedule I
• Where there are dues to numerous workmen or employees of the Company, an authorized representative
may submit one proof of claim for all such dues on their behalf in Form E of Schedule I
Claims by workmen
and employees
[Reg. 18]
• A person, claiming to be a stakeholder other than those under Reg. 16, 17 or 18 shall submit proof of claim
to the liquidator in person, by post or by electronic means in Form F of Schedule I
Claims by other
stakeholders
[Reg. 19]

28
• A claimant shall bear the cost of proving its claim
• Costs incurred by the liquidator for verification and determination of a claim shall form part of
liquidation cost
• If a claim or part of the claim is found to be false, the liquidator shall endeavour to recover the costs
incurred for verification and determination of claim from such claimant, and shall provide the details of
the claimant to the Board
Cost of proof
• Where the amount claimed by a claimant is not precise due to any contingency or any other reason, the
liquidator shall make the best estimate of the amount of the claim, based on consultation with the
claimant and the Company and the information available with him
Determination of
amount of claim
• The claims denominated in foreign currency shall be valued in Indian currency at the official exchange
rate as on the liquidation commencement date
• “Official exchange rate” is the reference rate published by the Reserve Bank of India or derived from
such reference rates
Debt in foreign
currency
• In the case of rent, interest and such other payments of a periodical nature, a person may claim only for
any amounts due and unpaid up to the liquidation commencement date
Periodical
payments

29
• A person may prove for a claim whose payment was not yet due on the liquidation commencement
date and is entitled to distribution in the same manner as any other stakeholder
Debt payable at
future time
• Where there are mutual dealings between the Company and another party, the sums due from one
party shall be set off against the sums due from the other to arrive at the net amount payable to the
Company or to the other party
Mutual credits and
set-off
• The liquidator shall verify the claims submitted within 30 days from the last date for receipt of claims
and may either admit or reject the claim, in whole or in part, as the case may be
• Where the liquidator rejects a claim, he shall record in writing the reasons for such rejection
• The liquidator shall communicate his decision of admission or rejection of claims to the creditor and
Company within 7 days of such admission or rejection of claims
• A creditor may appeal to the Tribunal against the decision of the liquidator within 14 days of the
receipt of such decision
Verification of
claims

List of stakeholders – Reg. 30
The liquidator shall prepare a list of stakeholders on the basis of proofs of claims submitted and accepted under the
Regulation, with:
• amounts of claim admitted, if applicable,
• the extent to which the debts or dues are secured or unsecured, if applicable,
• the details of the stakeholders, and
• the proofs admitted or rejected in part, and the proofs wholly rejected
The liquidator shall prepare the list of stakeholders within 45 days from the last date for receipt of claims
The list of stakeholders, as modified from time to time, shall be,
• available for inspection by the persons who submitted proofs of claim
• available for inspection by members, directors and guarantors of the Company
• displayed on the website, if any, of the Company
• displayed on the website, if any, designated by the Board for this purpose
30

Chapter VI – Realisation of Assets
31

32
Manner of sale
The liquidator may value and sell the assets of the Company in the manner and mode
approved by the Company in compliance with provisions, if any, in the applicable statute
“Assets” include an asset, all assets, a set of assets or parcel of assets, as the case may
be, in relation to sale of assets
Recovery of
monies due
The liquidator shall endeavour to recover and realize all assets of and dues to the
Company in a time-bound manner for maximization of value for the stakeholders
• The liquidator shall realize any amount due from any contributory to the Company
• Notwithstanding any charge or encumbrance on the uncalled capital of the Company, the
liquidator shall be entitled to,
• call and realize the uncalled capital of the Company and to collect the arrears if any due
on calls made prior to the liquidation commencement date,
• by providing a notice to the contributory to make the payments within 15 days from the
receipt of the notice, but shall hold all moneys so realized subject to the rights, if any, of
the holder of any such charge or encumbrance
• No distribution shall be made to a contributory, unless he/she makes his contribution to the
uncalled capital
Liquidator to realize
uncalled capital

Chapter VII – Proceeds of Liquidation
and Distribution of Proceeds
33

34
All money to be paid in to bank account – Reg. 34
The liquidator shall open a bank account in the name of the Company followed by the words ‘in voluntary liquidation’,
in a scheduled bank, for the receipt of all moneys due to the Company
The liquidator shall pay to the credit of the bank account opened as stated above, all moneys, including cheques and
demand drafts received by him as the liquidator of the Company, and the realizations of each day shall be deposited into
the bank account without any deduction, not later than the next working day
The money in the credit of the bank account shall not be used except in accordance with Sec 53(1)
All payments out of the account by the liquidator above Rs. 5,000 shall be made by cheques drawn or online banking
transactions against the bank account
Sec 53(1) deals with distribution of proceeds from the sale of liquidated assets

35
• The liquidator shall distribute the proceeds from realization within 6 months from the receipt of
the amount, to the stakeholders
• The liquidation costs shall be deducted before such distribution is made
• The liquidator may, with the approval of the Company, distribute amongst the stakeholders, an
asset that cannot be readily or advantageously sold due to its peculiar nature or other special
circumstances
Distribution
• A stakeholder shall forthwith return any monies received by him in distribution, which he was not
entitled to at the time of distribution, or subsequently became not entitled to
Return of money

36
Completion of liquidation – Reg. 37
The liquidator shall endeavour to complete the liquidation process of the Company within 12 months from
the liquidation commencement date
In the event of the liquidation process continuing for
more than 12 months, the liquidator shall,
hold a meeting of the contributories of the Company within 15 days from
the end of the 12 months from the liquidation commencement date, and at
the end every succeeding 12 months till dissolution of the Company; and
shall present an Annual Status Report(s)
indicating progress in liquidation, including
1. settlement of list of stakeholders
2. details of any assets that remains to be sold and realized
3. distribution made to the stakeholders
4. distribution of unsold assets made to the stakeholders
5. developments in any material litigation, by or against the Company
6. filing of, and developments in applications for avoidance of transactions in accordance with Chapter III of Part II of the Code*
* Avoidance of undervalued transactions is dealt with under Sec 45 of the Code
Annual Status Report shall enclose the audited accounts of the liquidation showing the receipts and payments
pertaining to liquidation since the liquidation commencement date

37
Final Report – Reg. 38
On completion of the liquidation process, the liquidator shall prepare the Final Report consisting of:
audited accounts of the liquidation,
showing receipts and payments
pertaining to liquidation since the
liquidation commencement date; and
a statement demonstrating that
assets of the Company has been disposed of
debt of the Company has been discharged to the
satisfaction of the creditors
no litigation is pending against the Company or
sufficient provision has been made to meet the
obligations arising from any pending litigation
a sale statement in respect of all assets containing
1. the realized value
2. cost of realization, if any
3. the manner and mode of sale
4. an explanation for the shortfall, if the value
realized is less than the value assigned by
the registered valuer in the report of the
valuation of assets under Sec 59(3)(b)(ii)
5. the person to whom the sale is made; and
6. any other relevant details of the sale

The liquidator shall send the Final Report forthwith, to the Registrar and the Board
The liquidator shall submit the Final Report to the Tribunal along with the application under Sec 59(7)
38
Sec. 59(7) Where the affairs of the Company have been completely wound up, and its assets completely liquidated, the
liquidator shall make an application to the Tribunal for the dissolution of such Company
Sec. 59(8)
Sec. 59(9)
Tribunal shall, on an application filed by the liquidator under Sec 59(7), pass an order that the Company shall
be dissolved from the date of that order and the Company shall be dissolved accordingly
A copy of an order under Sec 59(8) shall, within 14 days from the date of such order, be forwarded to the ROC

Corporate Voluntary Liquidation Account – Reg. 39
The Board shall operate and maintain an Account to be called the CVLA (CVLA) In the Public Accounts of India
Until the CVLA is operated as part of the Public Accounts of India, the Board shall open a separate bank account with a Scheduled bank
for the purposes of this regulation
A liquidator shall deposit the amount of unclaimed dividends, if any, and undistributed proceeds, if any, in a liquidation process along
with any income earned thereon till the date of deposit, into the CVLA before he submits an application under Sec 59(7)
A liquidator, who holds any amount of unclaimed dividends or undistributed proceeds in a liquidation process on the date of
commencement of the Amended Regulation, shall deposit the same within 15 days of the date of such commencement, along with any
income earned thereon till the date of deposit
A liquidator, who fails to deposit any amount into the CVLA under this regulation, shall deposit the same along with interest thereon at
the rate of 12% per annum from the due date of deposit till the date of deposit
Liquidator shall submit to the ROC and the Board, the evidence of deposit of the amount into the CVLA under this regulation, and a
statement in Form-G setting forth the nature of the amount deposited into the CVLA, and the names and last known addresses of the
stakeholders entitled to receive the unclaimed dividends or undistributed proceeds
The liquidator shall be entitled to a receipt from the Board for any amount deposited into the CVLA under this regulation
39

Contd.
40
A stakeholder, who claims to be entitled to any amount deposited into the CVLA, may apply to the Board in Form-H for an order for
withdrawal of the amount
If any other person other than the stakeholder claims to be entitled to any amount deposited to the CVLA, he shall submit evidence to
satisfy the Board that he is so entitled
Board may, if satisfied that the stakeholder or any other person referred above is entitled to withdrawal of any amount from the CVLA,
make an order for the same in favour of that stakeholder or that other person
Board shall maintain a Company-wise ledger of the amount deposited into and the amount withdrawn from the CVLA under this regulation
Board shall nominate an officer of the level of Executive Director of the Board as the custodian of the CVLA and no proceeds shall be
withdrawn without his approval
The Board shall maintain proper accounts of the CVLA and get the same audited annually
The audit report along with the statement of accounts of the CVLA referred to as above shall be placed before the Governing Board and
shall be forwarded to the Central Government
Any amount deposited into the CVLA in pursuance of this regulation, which remains unclaimed or undistributed for a period of 15 years
from the date of order of dissolution of the Company and any amount of income or interest received or earned in the CVLA shall be
transferred to the Consolidated Fund of India

Detection of Fraud or Insolvency – Reg. 39
41
Where the liquidator is of the opinion that the liquidation
is being done to defraud a person,
he shall make an application to the Tribunal to suspend
the process of liquidation and pass any such orders as it
deems fit
Where the liquidator is of the opinion that the Company
will not be able to pay its debts in full from the proceeds
of assets to be sold in the liquidation,
he shall make an application to the Tribunal to suspend
the process of liquidation and pass any such orders as it
deems fit

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