Who may petition for winding-up? [Section 439]:
The various persons who can make an application for the winding-up a company through Court are:
(1) the company;
(2) any creditor or creditors, including any contingent or prospective creditor or creditors;
(3) any contributory or contributories;
(4) all or any of the above parties, together or separately;
(5) the registrar; and
(6) any person authorised by the Central Government in a case falling under Section 243 of the Act (i.e., when the Central government is satisfied that it is just and equitable that the company should be wound up on the ground that the business of the company is being conducted in a fraudulent or unlawful or oppressive manner or that the company was formed for any fraudulent or unlawful purpose, etc.
A creditor has a right ex debito justitiae [i.e., a remedy which the applicant gets as a right] to a winding- up order if he can prove that he claimed an undisputed debt and that the company has failed to discharge it. Under Section 439 (8), a contingent or prospective creditor, however, must obtain leave of the Court, give security for costs and the Court must be satisfied that there is a prima facie case for winding- up of the company. The Central Government or any State Government or Municipal or other local authority to whom any tax or other public charge is due is also an entity comprised in the term creditor. It has been held in [Hari Nagar Sugar Mills Co. Ltd. vs. M.W. Pradhan (1962), 2 Com. LJ. 17 S.C] that a receiver of creditors, properties is also a creditor and as such he has a right to present a petition. He is creditor by statutory assignment. A secured creditor, the holder of any debentures [including debentured stock] whether or not trustees have been appointed in respect of such and other like debentures and also the trustee for the debenture-holders are creditors and hence entitled to present a petition for winding- up [Section 439 (2)].
A contributory can present a petition only when: (i) the number of members falls below 7 or below 2 in the case of a public or private company respectively or (ii) he holds shares which were originally allotted to him or has held shares for six out of the eighteen months prior to the commencement of winding- up or the shares have devolved on him through the death of a former holder [Section 439 (4)]. A holder of fully paid- up shares is also entitled to present a petition. This right of his as a contributory cannot be excluded on the ground that the company has no assets at all or that it may not have any surplus assets left for distribution among the shareholders after the satisfaction of its liabilities [Section 439 (3)].
The Registrar may present a petition for winding -up only on the ground that default has been made in delivering that statutory report to him or in holding the statutory meeting, or that the company has not commenced its business within a year from its incorporation, or that from the financial condition of the company as disclosed in its balance sheet or from the report of an inspectorsappointed under Section 235 or 237, or the report of a special auditor appointed under Section 233A, that the company is unable to pay its debts. But such a partition can be made only with the previous approval of the Regional Directors [Section 439 (5)].
The Official Liquidator may also present a petition for winding- up by the Court, where the company is being wound up either voluntarily or subject to the supervision of the Court. And the Court, before making a winding- up order on such petition, must be satisfied that in the circumstances such a winding- up cannot be continued, due regard being had to the interest of the creditors or contributories or both (Section 440).