The section 375 of the 2013 act and the rules there under which correspond to the above provisions in the 1956 act are yet to be notified. Hence, the provisions in the 1956 act on the above subject are still valid and subsisting. Here we can discuss about how to wind up an unregistered company.
Wind up an unregistered company
1. Before winding-up an unregistered company under the companies act, 1956, the following things must be kept in mind.
(a) The unregistered company proposed to be wound-up must have more than seven numbers at the time of indicating the winding-up application to the concerned court.
(b) The unregistered company can only be wound up by the concerned court. Neither voluntarily nor subject to the supervision of the concerned court.
(c) The unregistered company can be wound up under the following circumstances :
(i) If the company is dissolved, or has concluded to move on business, or is returning on business only for the ideas of winding-up its affairs.
(ii) If the company is priceless to give its debts.
(iii) The company registration should be wound up of the concerned court.
(d) Fit or other cases against the members of the registration company. The unregistered company also be stayed by the concerned court.
(e) The section 591 of the 1956 act is an “unregistered company” means an foreign company .
2. An unregistered company would be deemed to be priceless to give its debts in the following circumstances :
(a) Where a creditor who is indebted in a sum exceeding Rs. 500 has served. A demand on the unregistered company under his handwriting requiring it to pay the said sum. It neglected to pay the said sum for three weeks after the service of the demand.
(b)If any suit or other legal proceedings has been instituted against any member for any liability or want due or charged to be due, form the company, or from him in his character or member. Notice in writing of the institution of the Fix or other legal cases having been acted on the company by disappearing the same at its principal place of the business or by presenting it to the some Director or Secretary , principal officer of the company or Manager or the (court) may approve or direct. The company has not, within ten days after the service of notice.
(i) paid, secured or compounded for the debit or demand
(ii) procured the suit or other legal proceedings to be stayed
(iii) indemnified the defendant to his complacence against the suit or other legal proceedings and against all costs, damages and costs to be received by him by reason to the same.
(c) The performance or other process publicized on declare or order of any ( high court) in favor of a creditor against the company, or order of any (high court) in prefer of a creditor against the company or any member of their company registration. It is returned unsated in part or in whole.
(d) If it is otherwise provide to the comfort of the court that the registration company is powerless to give its debts to the court.
3. Present the wind up petition in duplicate in Form Nos. 45 or 46 and 47 of the companies rules 1959. Before the court of the state in which the principal place of the business of the unregistered company is situate in Coimbatore or Salem..
4. The court of the state alone has the jurisdiction to try winding-up petition on an unregistered company.
5. The petition may be presented either by any contributory/contributories or creditor/creditors or all or any of them separately or together. If the petition is presented by any contributory or contributories, then the form to be used in Form No.45. If it is by any creditor or creditors, then, in Form No.46. If the petition is presented by the company itself, then in Form No. 47 as prescribed under rule 95 of the companies court rules 1959.
6. Present the winding-up petition along with an Affidavit in Form. No.3 as prescribed under rule 21 of the companies court rules 1959) verifying the petition, after having it either notarized by the Notary Public or sworn before the Oath Commissioner.
7. Advertise the winding-up petition in Form No.48 as prescribed under rule 99 of the companies court rules 1959. It is not less than 14 days before the date secured for hearing in.
(a) one issue of the official gazette of the state or union territory concerned.
(b) one issue of a daily newspaper in English language circulating in the State or Union Territory concerned.
(c) one issue of a daily newspaper in the regional language circulating in the State or Union Territory concerned.
8. After obtaining the winding-up order of the concerned court, advertise the order within 14 days of the date of making the order in Form. No.53 of the companies court rules 1959, in the following newspapers circulating in the State or Union Territory concerned.
(a) one issue of the newspaper in English language.
(b) one issue of a newspaper in the regional language.
9. Serve the winding-up order upon such persons and in such manner as the Judge directs.
10. File a certified copy of the winding-up order with the concerned ROC in e-Form with 30 days from the date of making of the order. After paying the requisite fees as prescribed under company (Registration offices and fees) rules 2014.
11. The said e- Form is registered electronically. The copy of the court’s order is filed with the said e-Form as an attachment.
12. See the original certified true copy of the Court’s order is also submitted at the concerned ROC’s office simultaneously with the filing of e-Form INC-28. If the filing is not considered then the legal action will be taken. The company registration is also be noticed in (Registration offices and fees) rules 2014.
13. The said e- Form is digitally signed by the company registration directors of secretary of the company, managing director or manager in a company.
14. If default is made in obeying with the same essential, you will be punishable with fine Up to Rs. ten thousand for each day during the default continues. If the registration has been done in Coimbatore, Salem, Madurai and Chennai registered office. The wind up of an unregistered company has been noticed in these registered office.