Pending Litigation: What Happens to Cases After a Winding-Up Order?

 Pending litigation can materially affect the winding-up process.

The company may be involved in:

• civil suits;
• arbitration;
• recovery proceedings;
• tax litigation;
• labour disputes;
• regulatory proceedings; or
• proceedings in which the company itself is seeking recovery of money.

Under Section 279, once a winding-up order has been passed or a provisional liquidator has been appointed, a suit or other legal proceeding generally cannot be commenced or continued by or against the company without leave of the Tribunal, subject to the terms imposed by it.

An important exception is provided for proceedings pending in appeal before the Supreme Court or a High Court.

Further, Section 280 gives the Tribunal extensive jurisdiction over suits, claims and questions arising out of or relating to the winding up.

Practical issue

A winding-up order does not automatically make pending litigation disappear.

Instead, the Company Liquidator needs to identify:

• what proceedings exist;
• whether they should be continued;
• whether Tribunal permission is required;
• whether settlement is appropriate; and
• whether the proceeding represents a liability or a potential asset of the company.

Main takeaway

Pending litigation is not merely a footnote in winding up it can directly affect claims, recoveries, distributions and the timing of dissolution.

This Article has been compiled by Diksha Narang (Associate).

Hidden & Forgotten Assets: Finding Everything the Company Owns

 If Part 3 asks:

“Who does the company owe?”

Part 4 asks:

“What does the company own?”

A company undergoing winding up may still have:

• old receivables;
• security deposits;
• electricity or lease deposits;
• income-tax/GST refunds;
• investments;
• shares in subsidiaries;
• trademarks and patents;
• domain names;
• software or other intellectual property;
• immovable property;
• loans and advances;
• insurance claims; or
• balances lying in dormant bank accounts.

Under Section 283, the Company Liquidator is required to take custody or control of the property, effects and actionable claims to which the company appears entitled.

Section 290 further provides the Company Liquidator with powers and duties relating to the company's property and affairs.

The winding-up committee under Section 277 specifically assists in taking over assets, recovery of property and cash, and sale of assets.

Practical issue

An asset does not cease to belong to the company simply because nobody has looked at it for ten years.

Before dissolution, the asset may need to be:

identified → recovered → valued → realised/transferred → accounted for

Main takeaway

A company cannot be properly wound up until its assets are identified and dealt with as carefully as its liabilities.

This Article has been compiled by Shallu Garg (Senior Associate).

The Creditor Challenge: What Happens to Outstanding Claims?

Creditors are central to the winding-up process.

A company's books may show ₹10 lakh payable to a vendor, but:

• the vendor claims ₹15 lakh;
• the creditor cannot be traced;
• invoices are unavailable;
• the company disputes the liability;
• the balance has remained outstanding for many years;
• the liability is contingent; or
• a creditor submits a claim during winding up.

Under Section 324, debts and claims of different descriptions, including certain present, future and contingent claims, may be admitted to proof in winding up.

Priority amongst certain claims is separately governed by Sections 326 and 327, including workmen's dues and specified preferential payments.

The winding-up committee contemplated under Section 277 also assists in matters including finalisation of the list of creditors and contributories and compromise, abandonment or settlement of claims.

Practical issue

An old creditor appearing in the balance sheet cannot simply be removed because:

“Nobody has followed up for years.”

The underlying liability needs to be examined, supported, disputed, admitted, settled or otherwise appropriately dealt with during winding up.

Main takeaway

Winding up is not about deleting liabilities from the books—it is about identifying and legally dealing with them.

This Article has been compiled by Diksha Narang (Associate).

Before the Petition: Is the Company Ready for Winding Up?

 

Even where a valid ground for winding up exists, the company's affairs should be carefully reviewed before entering the winding-up process.

Think of this as a pre-winding-up health check.

The review should identify:

• creditors and outstanding loans;
• statutory and tax dues;
• ROC filing defaults and penalties;
• bank accounts and balances;
• trade receivables;
• fixed assets and investments;
• employee and workmen dues;
• pending suits, arbitrations and regulatory proceedings;
• guarantees and contingent liabilities;
• intellectual property;
• contracts and leases;
• related-party balances;
• licences and registrations; and
• books, records and supporting documents.

This review becomes particularly important because Section 274 deals with the statement of affairs in specified winding-up petitions, while Section 281 requires the Company Liquidator to submit a report to the Tribunal regarding the company's affairs after appointment. Directors, promoters and officers are also required to cooperate with the Company Liquidator under Section 284.

Practical issue

A company may appear dormant but still have:

₹2 lakh in an old bank account

• an unrecovered security deposit
• a tax appeal
• an old creditor
• an unreconciled related-party balance.

These issues do not disappear merely because commercial operations have stopped.

Main takeaway

Before approaching winding up, understand the company's complete financial, legal and regulatory position.

This Article has been compiled by Shallu Garg (Senior Associate).