Who Can File a Winding Up Petition: Section 272

Who can file a winding up petition is answered by one sub-section of the Companies Act, 2013. Section 272(1) names six classes, section 272(2) and (3) then qualify two of them, and section 273 sets out what the Tribunal may do once a petition arrives. This page reads all of it as printed in the consolidated Act, including the 2019 amendment that widened the Registrar's reach by deleting four words.

Who can file a winding up petition under section 272?

Section 272(1) opens Subject to the provisions of this section, and then lists the petitioners. The list is worth reading as six separate entries, because clause (c) exists only to allow two of the others to act jointly.

Clause (f) is ground specific. It attaches only to clause (b) of section 271, the ground that the company has acted against the interests of the sovereignty and integrity of India, and it is the only place in the list where a government is named as petitioner in its own right rather than through an authorised person. The other four grounds for winding up draw on the general list.

What does a contributory have to show?

Not much. Section 272(2) removes three objections in one sentence: a contributory is entitled to present a petition notwithstanding that he may be the holder of fully paid-up shares, or that the company may have no assets at all or may have no surplus assets left for distribution among the shareholders after the satisfaction of its liabilities.

What it does require is a holding period. The shares in respect of which he is a contributory, or some of them, must have been either originally allotted to him or have been held by him, and registered in his name, for at least six months during the eighteen months immediately before the commencement of the winding up or have devolved on him through the death of a former holder.

Two details in that sentence do work. The six months need not be the six months immediately before: they need only fall during the eighteen months before commencement. And the alternative limb, devolution on death, carries no holding period at all. Commencement is not the date of the order: section 357 states that a winding up by the Tribunal shall be deemed to commence at the time of the presentation of the petition for the winding up. The list of contributories settled later under section 285 is a separate exercise from this standing test.

What changed for the Registrar in 2019?

Section 272(3) reads that the Registrar shall be entitled to present a petition for winding up under section 271, except on the grounds specified in clause (a) of that section. The closing words of that section were substituted by Act 22 of 2019, section 37, for "or clause (e) of that sub-section", with effect from 15 August 2019.

That substitution did two things at once. It removed clause (e), the just and equitable ground, from the Registrar's bar, so the Registrar may now petition on it. And it corrected a cross-reference: section 271 as substituted in 2016 has clauses, not sub-sections, so the phrase "that sub-section" no longer matched the section it pointed at.

Two provisos then gate the Registrar's petition. The first: the Registrar shall obtain the previous sanction of the Central Government to the presentation of a petition. The second: the Central Government shall not accord its sanction unless the company has been given a reasonable opportunity of making representations. The company is heard before the petition is filed, not only after.

What must accompany the petition, and what does the Registrar do with a copy?

Section 272(4) applies to one petitioner only: A petition presented by the company for winding up before the Tribunal shall be admitted only if accompanied by a statement of affairs in such form and in such manner as may be prescribed. When anyone else petitions, the statement of affairs is directed later and conditionally: section 274(1) has the Tribunal order it only if satisfied that a prima facie case for winding up of the company is made out, and the company then has thirty days.

Section 272(5) then routes a copy to the Registrar in every case. A copy of the petition made under this section shall also be filed with the Registrar and the Registrar shall, without prejudice to any other provisions, submit his views to the Tribunal within sixty days of receipt of such petition. The Registrar is therefore a participant even where someone else petitions.

What can the Tribunal do with the petition?

Section 273(1) gives five orders. The Tribunal may, on receipt of a petition for winding up under section 272 pass any of the following orders: (a) dismiss it, with or without costs; (b) make any interim order as it thinks fit; (c) appoint a provisional liquidator of the company till the making of a winding up order; (d) make an order for the winding up of the company with or without costs; or (e) any other order as it thinks fit.

Three provisos follow, and each constrains a different thing.

• Timing. An order under the sub-section shall be made within ninety days from the date of presentation of the petition.
• Notice before a provisional liquidator. Before appointing one under clause (c), the Tribunal shall give notice to the company and afford a reasonable opportunity to it to make its representations, if any, unless for special reasons to be recorded in writing the Tribunal dispenses with the notice. The appointment of that provisional liquidator or Company Liquidator is governed by section 275.
• No refusal for want of assets. The Tribunal shall not refuse to make a winding up order on the ground only that the assets of the company have been mortgaged for an amount equal to or in excess of those assets, or that the company has no assets.

Section 273(2) is the one discretion to refuse that the section does spell out, and it is confined to a single ground. Where a petition is presented on the just and equitable ground, the Tribunal may refuse to make an order of winding up, if it is of the opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing the other remedy. That other remedy is often an oppression and mismanagement application under section 241, which section 224(2) also lets the Central Government route to the same Tribunal.

So the answer to who can file a winding up petition is six classes, two of them fenced: the Registrar by a sanction requirement and a barred ground, the contributory by a holding period. And filing is not the end of the question. Section 273 lets the Tribunal dismiss the petition, park it behind an interim order, or make the winding up order, and it has ninety days from presentation to choose.

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.