Companies (Winding Up) Rules, 2020- Rules 131-138

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On January 24, 2020, the Ministry of Corporate Affairs (MCA) notified the Companies (Winding Up) Rules, 2020 (‘Winding Up Rules’), which will be effective from April 1, 2020. While ‘voluntary winding up’ and ‘winding up on the grounds of inability to pay off debts under the Insolvency and Bankruptcy Code, 2016 (‘IBC’).

Calls in Winding Up by Tribunal

Rule 131- Calls by Company Liquidator

Subject to the provisions of subsections (2) of section 465, the Tribunal may by order grant leave to the Company Liquidator to make calls referred to in section 296.

Rule 131 read with Sub Section (2) of Section 465 and Section 296, the Tribunal may by order grant leave to the Company Liquidator to make calls.

Rule 132- Company Liquidator to realise uncalled capital

Notwithstanding any charge or encumbrance on the uncalled capital of the company, the Company Liquidator shall be entitled to call and realise the uncalled capital of the company and to collect the arrears, if any, due on calls made prior to the winding up, but shall hold all moneys so realised subject to the rights, if any, of the holder of any such charge or encumbrance.

Regardless of any charge on the uncalled capital of the company, the Company Liquidator will be entitled to call the uncalled capital of the company and collect the arrears in case there are any, due on calls made prior to the winding up, but has to hold all money in order to subject the rights if any, of the holder of any such charge or encumbrance.

Rule 133- Application for leave to make call

(1)The Company Liquidator shall not make any call without obtaining the leave of the Tribunal for the purpose.

(2) Within seven days of the settlement of the list of contributories, the Company Liquidator may apply to the Tribunal for leave to make a call on the contributories and the application shall state the proposed amount of such call and shall be in Form WIN 52 which shall be supported by the affidavit of the Company Liquidator which shall be in Form WIN 53.

The Company Liquidator is not supposed to make any call without getting the leave of the Tribunal. The Company Liquidator can apply to the Tribunal within seven days of the settlements of the list of contributories and the application should have the amount of such call and has to be mentioned in Form WIN 52, which should be supported by an affidavit of the Company Liquidator mentioned in Form WIN 53.

Rule 134- Notice of application

(1) Notice of an application for leave to make a call shall be served on every contributory proposed to be included in such call, by post under certificate of posting so as to reach such contributory, in the ordinary course of post not less than seven clear days before the date appointed for the hearing thereof, or if the Tribunal so directs, notice of the application may be given by advertisement in Form WIN 54 , in newspapers as the Tribunal may direct, not less than seven clear days before the date appointed for the hearing, without a separate notice to each contributory.

(2) The affidavit of service relating to the dispatch of notice to each contributory, or to the advertisement, as the case may be, shall be filed in the Tribunal three days before the date fixed for the hearing.

Every contributory who is proposed to be included in a call will be served with a notice of an application. By post under certificate of posting to reach such contributory in not less than seven days before the proposed date of hearing or whatever the Tribunal directs. A notice of application can be given in an advertisement in newspapers in Form WIN 54 for not less than seven days before the proposed date of hearing, without a separate notice to each contributory.

Rule 135- Order granting leave to make call and document making call

The order granting leave to make a call shall be in Form WIN 55, and shall contain directions as to the time within which such calls shall be paid and when an order has been made granting leave to make a call, the Company Liquidator shall file in Tribunal, document making the call in Form WIN 56 with such variations as circumstances may require.

The order granting to make a call has to be mentioned in Form WIN 55 and it should also contain the time within such calls will be paid and when an order has been made granting leave to make a call, the Company Liquidator has to file in Tribunal. The document making the call has to be mentioned in Form WIN 56 with whatever changes are required as per circumstances.

Rule 136- Service of notice of call

Immediately after filing the document making the call as referred to in rule 135, the Company Liquidator shall serve by registered post or speed post or in electronic mode, a copy of the order granting leave to make the call upon each of the contributories included in such call together with a notice in Form WIN 57 specifying the amount or balance due from such contributory in respect of such call and the order granting leave to make a call need not be advertised unless the Tribunal otherwise orders for any special reason.

As referred in Rule 135, right after filing the document making the call, the Company Liquidator has to serve either through registered post or speed post or in electronic form, with a copy of the order granting leave to make the call upon each of the contributories included in such call together should be mentioned in Form WIN 57, mentioning the amount or balance due from such contributory in respect of such call and the order granting leave to make a call don’t have to be advertised unless the Tribunal orders it for any special reason.

Rule 137- Order for payment of call

The Company Liquidator may apply to the Tribunal for an order against any contributory or contributories for payment of moneys due on the calls made by him and the application shall be made in Form WIN 58 supported by an affidavit in Form WIN 59 and notice of the application together with a copy of the affidavit shall be served on the contributory by registered post or speed post not less than seven days before the date fixed for the hearing of the application, and the order for payment shall be in Form WIN 60.

In case of the payment of the moneys due on the calls, the Company Liquidator can apply to the Tribunal for an order against any or all contributories, and the application has to be made in Form WIN 58 along with an affidavit in Form WIN 59 and also the notice of application together with a copy of the affidavit has to be served to the contributory by registered or speed post in not less than seven days before the date fixed for the hearing of the application and the order for payment has to be made in Form WIN 60.

Rule 138- Other moneys due to contributories

When any money is due to the company from a contributory or from the estate of the person whom he represents, other than moneys due on calls made subsequent to the winding up but including moneys due on calls made prior to the winding up the Company Liquidator may make an application to the Tribunal supported by an affidavit for an order against such contributory for the payment of such moneys and the notice of the application shall be given to such contributory by registered post or speed post not less than seven days prior to the date fixed for the hearing of the application.

When any money is due to the company from a contributory or from any representing estate, other than money due on calls made subsequent to the winding up but including money due on calls made prior to the winding up, the Company Liquidator can make an application to the Tribunal along with an affidavit for an order against such contributory for the payment of such money and the same notice of the application has to be given to such contributory either by registered or speed post, not less than seven days prior to the date fixed for the hearing of the application.