Petition of winding up
- The petition for winding up an LLP should be in Form No.26, 27 & 28, in case if there are any circumstances arises it may presents as duplicate. If the petition is from LLP then the petition is accompanied with the stamen of affairs on the date of the petition.
- The registrar of the court should notice the petition on the date of its presentation.
Admission of LLP petition and directions as to advertisement.
- When the filing of the petition, it may postes before the member in spaces for the registration of the petition and fixing a date for hearing and for directions as to advertisement to be published upon the person whom copies of the petition are to be served.
- If the member may think fit then the direct notice may give to LLP before giving the directions as to the advertisement of the petition.
Petition by a commission or prospective creditor
The petition for the winding up of an LLP presented by a commission may be accompanied by an application equal to the level of court for the admission of the petition. No advertisement of such petitions shall be made unless the leave has granted or where the leave may get granted to any conditions precedent to the admission of the petition unless such conditions have to get satisfied.
Copy of the LLP petition to furnish
Each and every partner of the LLP should entitle to furnish by the petitioner by his advocate or pleader with a Xerox copy of the concerned petition within 24 hours on payment of the charges as specified in the annexure.
Advertisement of petition
Subject to any directions of the Court, the petition may advertise within the time and in the manner provided in the Company Rule 87. The advertisement may be in Form No.29.
Application for leave to withdraw the LLP petition
The petition for winding up should not withdraw after presentation without the leave of court.
The application for leave a petition has been advertising in Rule 87 and fixed in the advertisement for the hearing of the petition.
Substitution of creditor partner for original receiver
Where a petitioner,
Is not entitle to present a petition
Or fails to advertise the petition within the particular time specified in the rules
Agreement to withdraw the petition or allow to dismiss or the hearing to be interrupted or fails to appear in support of his petition when it is called on the Court.
If appearing is not able to apply for an order in terms of the prayer of his petition.
Or
Where in the case of tribunal there is another sufficient cause for an order being made under this rule
Procedure on substitution
When a member makes an order and substituting a partner as the receiver in a winding-up petition, he can suspend the petition as long as his wish and direct such amendments of the petitions as necessary and within seven days from the order amend the petition accordingly. Then he can file the two copies with the affidavit in duplicate on which he supports the petition.
The amended petition considered as the petition for the winding up of the LLP and shall be deemed to have been presented on the date which the original petition was applied.
The Affidavit in Opposition
An affidavit intended to use in opposition to the petition shall file not less than five days before the days fixed for the hearing of the petition, and a copy may get serve on the petitioner. The affair of statements on the LLP along with opposition letter shall also be filed.
The copy of the affidavit may give to the creditor in support of the petition who may require the same on payment of the prescribed charges.
The affidavit in Reply
The subject to Rule 28, an affidavit used for the reply to the affidavit filed in opposition to the petition shall file not low than 2 days before the day of hearing the opposition. A copy of the affidavit in reply may serve on the day of filing by who in opposition was file.
Provisional liquidator
Appointment of provisional liquidator
When the court finishes its admission of the petition for the winding up of an LLP registration application of a creditor, partner, and some proof by affidavit of sufficient ground for the appointment of a professional receiver subject to certain rules like rule 27, 28. If it thinks fit such above terms of the court shall appoint the liquidator to be the provisional receiver of the LLP pending final orders on the winding up petition.
Where the LLP is not the applicant, a notice of the appointment of a receiver shall give to the LLP unless the court, for special reasons to get records allots with the notice. The order appoints the provisional receiver may set as restrictions and limitations if any on his powers imposed by the Court. The order should be in Form No.30 with some variations.
Rules and procedures applicable to provisional receiver
The procedures and the rules relating to the receiver shall apply to the Provisional receiver, as applicable, subject to such directions, as the court gives in each way.
Costs, etc of provisional Receiver
The fees, charges, and expenses of the particular order by the provisional receiver may charge to the Central Government under the scale of fee for the time being in force applicable where the official liquidator acts as the provisional receiver of the LLP.
Attendance and appearance of Creditors and Partners in LLP petition
Attendance progressing
The attendance progress may save as otherwise provided or by an order of Court, every person in the time being on the list of LLP. Every creditor whose debt has been admitting by the receiver or in part shall be at liberty at his own expense to attend the process before the Court.
The receiver shall entitle upon payment of the cost occasioned thus to have all notices of proceeding as he shall by request in writing address to the receiver.
No partner or creditor shall entitle to attend the proceeding before the member unless and until an advocate or authorized representative on his behalf has filed an appearance with the registrar of Tribunal. The registrar keeps an Appearance Book in which all such appearance shall be entered. Such books may open to the inspection of the receiver.
Representation of Creditors and partners before the tribunal
The tribunal if it thinks fit appoint from time to time any one of the creditors to represent before the court at the expense of the LLP or any class of creditors upon any question in relation to any proceedings before the Tribunal, and may remove any of the person so appointed, if more than one person is appointing under this rule to represent one class, the person so appointed shall employ the same one.
Winding up and conclusion
Voluntary winding up
The LLP should settle in the terms and conditions of the agreement specified in the Provision of the LLP Act upon a decision to dissolve the LLP by written consent of the partners holding at least % interests of the LLP in terms of the capital contribution to the registration of an LLP.
Compulsory winding up
Nevertheless, anything containing in this agreement the LLP may get deemed under the below cases
The numbers of members are less than two or the company aimed to run the business with less than 2 members within 6 months of period.
The partners non- commercial rights are getting transfers to the third party members without the approval of the existing partners.
Appointment of Overseer
When the occurrence of the event of termination is defined in the LLP Act, which may trigger the winding-up action, the LLP may cease to engage in any further business, except to the extent necessary to perform existing requirement and shall wind up its affairs prescribed in the LLP Act and rules.
The partner with the consent of all the partners may appoint a receiver who may have sole authority and control over the winding up and industriously pursue the winding up of the LLP. As soon as applicable after his appointment, the liquidator may cause to file a statement of intent to dissolve the LLP as required by the LLP Act.
Status during LLP petition winding up
During the course of liquidation, the partners shall continue to share profits and losses of the LLP but there are no cash distributions to the partners until distribution date.
Distribution Date
Winding up may continue until the affairs of the LLP are in cases like that there can be a final accounting, showing that all fixed or liquidates liabilities of the LLP are satisfied. When the liquidator has determined there can be final accounting, the receiver may fix the date later at the end of the taxable year of the liquidation. The net proceeds of liquidation of the LLP shall distribute to the partners as provided in earlier.
Assumptions of LLP petition winding up
- The process for the liquidation can apply in the below ways
- Firstly, we have to pay for all the expenses of liquidation and winds up,
- Secondly, to pay all the debts, obligations of the LLP in order of priority based on the law, other than debt wing to the partners or an account of the partner’s contributions.
- Thirdly, to pay all types of LLP owing to a partner.
Designated Partners Identification Number (DPIN) Creation
All elected partners of the proposed LLP petition may obtain Designated partners identification Number (DPIN) which may be under the Act 266A,266B and 266E of the Companies Act and rules made thereunder. By filing an application electronically in Form DIN-1^1 under the companies act, 2006 to the central government for obtaining DPIN under LLP Act and such DIN shall be sufficient to appoint as a designated partner under LLP Act.
- Fill up Form DIN-1 for all allotment of the DPIN.
- Pay the filing fee of Rs.100 through online by credit card.
- Submit the application online.
- The designated partner shall intimate his DPIN in form 9 to LLP and the LLP shall subsequently intimate DPIN to the registrar in Form 4.
Conclusion
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