PART II.—Winding up of unregistered companies
1. Subject to the provisions of this Part, any unregistered company may be wound up under this Act, in such manner as may be prescribed, and all the provisions of this Act, with respect to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in sub-sections (2 ) to (4 ).
2. No unregistered company shall be wound up under this Act voluntarily.
3. An unregistered company may be wound up under the following circumstances, namely:—
a. if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;
b. if the company is unable to pay its debts;
c. if the Tribunal is of opinion that it is just and equitable that the company should be wound up.
4. An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts—
a. if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one lakh rupees then due, has served on the company, by leaving at its principal place of business, or by delivering to the secretary, or some director, manager or principal officer of the company, or by otherwise serving in such manner as the Tribunal may approve or direct, a demand under his hand requiring the company to pay the sum so due, and the company has, for three weeks after the service of the demand, neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor;
b. if any suit or other legal proceeding has been instituted against any member for any debt or demand due, or claimed to be due, from the company, or from him in his character as a member, and notice in writing of the institution of the suit or other legal proceeding having been served on the company by leaving the same at its principal place of business or by delivering it to the secretary, or some director, manager or principal officer of the company or by otherwise serving the same in such manner as the Tribunal may approve or direct, the company has not, within ten days after service of the notice,
i. paid, secured or compounded for the debt or demand;
ii. procured the suit or other legal proceeding to be stayed; or
iii. indemnified the defendant to his satisfaction against the suit or other legal proceeding, and against all costs, damages and expenses to be incurred by him by reason of the same;
c. if execution or other process issued on a decree or order of any Court or Tribunal in favour of a creditor against the company, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied in whole or in part;
d. if it is otherwise proved to the satisfaction of the Tribunal that the company is unable to pay its debts.
Explanation.- — For the purposes of this Part, the expression "unregistered company"
a. shall not include:—
i. a railway company incorporated under any Act of Parliament or other Indian law or any Act of Parliament of the United Kingdom;
ii. a company registered under this Act; or
iii. a company registered under any previous companies law and not being a company the registered office whereof was in Burma, Aden, Pakistan immediately before the separation of that country from India; and
b. save as aforesaid, shall include any partnership firm, limited liability partnership or society or co-operative society, association or company consisting of more than seven members at the time when the petition for winding up the partnership firm, limited liability partnership or society or co-operative society, association or company, as the case may be, is presented before the Tribunal.
Legal Commentary & Landmark Judgments: Section 375
Section 375 of the Companies Act, 2013 governs the winding up of unregistered companies by the Tribunal, establishing statutory grounds including inability to pay debts and just and equitable considerations, while expressly prohibiting voluntary liquidation.
When petitioning to wind up an unregistered partnership or association under Section 375, prove in the petition that the entity has more than seven members to satisfy the jurisdictional threshold. Serve a formal statutory demand under Section 375(3)(a) demanding payment within three weeks; non-payment provides prima facie statutory proof of inability to pay debts.