Affidavit in Winding Up: Section 355 of the Act

An affidavit in winding up is sworn evidence filed in a liquidation, and section 355 of the Companies Act, 2013 is the short section that says where it may be sworn and what an Indian forum must accept without further proof. It matters most when the deponent is outside India, because it is the provision that lets a foreign affidavit come in without a separate exercise in proving the seal.

Where can an affidavit in winding up be sworn?

Section 355(1) provides that Any affidavit required to be sworn under the provisions, or for the purposes, of this Chapter may be sworn in one of two places, and it sets them out as separate clauses.

Clause (a) covers India. The affidavit may be sworn in India before any court, tribunal, judge or person lawfully authorised to take and receive affidavits.

Clause (b) covers everywhere else. It may be sworn in any other country before any court, judge or person lawfully authorised to take and receive affidavits in that country or before an Indian diplomatic or consular officer.

The two lists are not the same, and the difference is easy to read past. Clause (a) names a tribunal among the Indian forums. Clause (b), for another country, names a court, a judge and a lawfully authorised person, and then adds the Indian diplomatic or consular officer. A foreign tribunal is not named. Read the clause rather than assuming the two limbs mirror each other.

Which affidavits does the section actually reach?

Only the ones belonging to the winding up Chapter. The words are under the provisions, or for the purposes, of this Chapter, and the Chapter is Chapter XX of the Companies Act, 2013. That covers the affidavit verifying a winding up petition and the affidavit that verifies a statement of affairs, both of which sit inside the same Chapter.

Those are affidavits sworn for the purposes of the Chapter rather than affidavits its own sections demand. The statement of affairs and who has to verify it are set out in a statement of affairs in winding up, and the petition that starts the process is covered in who can file a winding up petition. An affidavit sworn for a proceeding under a different Chapter, an oppression petition for instance, is outside section 355 on its own words.

Which Chapter XX provisions name an affidavit?

Two name one directly, and they sit at opposite ends of a liquidation.

The liquidator's own power to swear one. Section 290(1) opens Subject to directions by the Tribunal, if any, in this regard, and on that footing clause (m) lets the Company Liquidator take all such actions, steps, or to sign, execute and verify any paper, deed, document, application, petition, affidavit, bond or instrument as may be necessary, for three stated purposes: for winding up of the company, for distribution of assets, and in discharge of his duties and obligations and functions as Company Liquidator. An affidavit is named in that list alongside the petition and the bond, so swearing one is part of the office rather than something the liquidator needs separate leave for. The distinction is worth keeping. Section 290(2) subjects the exercise of these powers to the overall control of the Tribunal, which is supervision, where section 291(1) lets the Company Liquidator appoint professionals only with the sanction of the Tribunal, which is leave. An affidavit sits on the first footing, not the second. The rest of that office is set out in the powers of a company liquidator.

Evidence taken on affidavit. Section 299(2) lets the Tribunal examine any officer or person summoned before it on oath concerning the matters aforesaid, either by word of mouth or on written interrogatories or on affidavit. An affidavit is one of three modes there, and the choice is the Tribunal's. That summons power is covered in the power to summon suspected persons.

Read with those two, section 355 is doing something narrow but load bearing. It does not create any requirement to swear an affidavit. It answers the separate question of where an affidavit already required elsewhere in the Chapter may be sworn, and by extension who may take it.

What does judicial notice under section 355(2) remove?

The proof step. Sub-section (2) provides that All tribunals, judges, Justices, commissioners and persons acting judicially in India shall take judicial notice of the seal, stamp or signature, as the case may be, of any such court, tribunal, judge, person, diplomatic or consular officer, attached, appended or subscribed to any such affidavit or to any other document to be used for the purposes of this Chapter.

Three things follow from how that sub-section is drafted:

• The obligation is shall take judicial notice, not may. The Indian forum has no discretion to demand separate proof of the seal.
• It reaches the seal, stamp or signature, so it is not limited to an embossed seal.
• It extends beyond affidavits to any other document to be used for the purposes of this Chapter, which is wider than sub-section (1).

The section's own marginal heading is Court, tribunal or person, etc., before whom affidavit may be sworn, which describes sub-section (1) and understates sub-section (2).

Why a procedural section is worth knowing about

Because cross-border liquidations turn on it. Where a creditor, a contributory or a former officer is outside India, section 355 is what makes their sworn evidence usable in the Indian proceeding without an authentication detour. The Tribunal hearing the matter is described in the national company law tribunal, and the evidence rules that sit alongside affidavits are covered in company books as evidence in winding up.

An affidavit in winding up is not itself a public disclosure. It reaches the record through the Tribunal's file rather than through an exchange filing, which is why a liquidation is usually visible to the market through the order rather than through the evidence behind it.

Flock reports the filings themselves, each stamped with its date and linked back to the exchange or regulator that published it. What any of it means for you is your call to make.