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CS Professional · Corporate Restructuring, Valuation and Insolvency · Winding-up by Tribunal under the Companies Act, 2013

During the winding up of Sagar Infra Ltd, the Company Liquidator finds that a former director committed an offence relating to the winding up. The Registrar, a member and the Central Government's authorised person have not filed any complaint. Can the liquidator proceed, and why?

The liquidator can proceed. The requirement of a written complaint by the Registrar, a member or a Central Government-authorised person does not apply to a liquidator's action on offences relating to winding up, and the liquidator is expressly not deemed an officer of the company.

  1. ANo, because a court can take cognizance only on the complaint of the Registrar, a shareholder or a person authorised by the Central Government in every case
  2. BNo, because the liquidator is deemed an officer of the company and cannot prosecute officers
  3. CYes, because the complaint restriction does not apply to action by the liquidator for offences relating to winding up, and the liquidator is not deemed an officer of the companyCorrect
  4. DYes, but only after SEBI authorises the liquidator in writing

Explanation

Section 439(4) says the complaint restriction in sub-section (2) does not apply to action by the liquidator for offences in matters of Chapter XX or other winding-up provisions. The Explanation says the liquidator is not deemed an officer of the company. So the first and second options misstate the law, and SEBI authorisation is irrelevant.

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