439. PROVISIONS AS TO APPLICATIONS FOR WINDING UP

(1) An application to the Tribunal for the winding up of a company shall be by petition presented, subject to the provisions of this section, -

(a) by the company ; or

(b) by any creditor or creditors, including any contingent or prospective creditor or creditors ; or

(c) by any contributory or contributories ; or

(d) by all or any of the parties specified in clauses (a), (b) and (c), whether together or separately ; or

(e) by the Registrar ; or

(f) in a case falling under section 243, by any person authorised by the Central Government in that behalf ; or

(g) In a case falling under clause (h) of section 433, by the Central Government or a State Government.

(2) A secured creditor, the holder of any debentures (including debenture stock), whether or not any trustee or trustees have been appointed in respect of such and other like debentures, and the trustee for the holders of debentures, shall be deemed to be creditors within the meaning of clause (b) of sub-section (1).

(3) A contributory shall be entitled to present a petition for winding up a company, 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.

(4) A contributory shall not be entitled to present a petition for winding up a company unless -

(a) either the number of members is reduced, in the case of a public company, below seven, and, in the case of a private company, below two ; or

(b) the shares in respect of which he is a contributory, or some of them, either were 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.

(5) Except, in the case where he is authorised in pursuance of clause (f) of sub-section (1), the Registrar shall been titled to present a petition for winding up a company only on the grounds specified in clauses (b), (c), (d), (e) (f) and (g) of section 433 :

Provided that the Registrar shall not present a petition on the ground specified in clause (e) aforesaid, unless it appears to him either from the financial condition of the company as disclosed in its balance sheet or from the report of a special auditor appointed under section 233A or an inspector appointed under section 235 or 237, that the company is unable to pay its debts :

Provided further that the Registrar shall obtain the previous sanction of the Central Government to the presentation of the petition on any of the grounds aforesaid.

(6) The Central Government shall not accord its sanction in pursuance of the foregoing proviso, unless the company has first been afforded an opportunity of making its representations, if any.

(7) A petition for winding up a company on the ground specified in clause (b) of section 433 shall not be presented -

(a) except by the Registrar or by a contributory ; or

(b) before the expiration of fourteen days after the last day on which the statutory meeting referred to in clause (b) aforesaid ought to have been held.

(8) Before a petition for winding up a company presented by a contingent or prospective creditor is admitted, the leave of the Tribunal shall be obtained for the admission of the petition and such leave shall not be granted -

(a) unless, in the opinion of the Tribunal, there is a prima facie case for winding up the company ; and

(b) until such security for costs has been given as the Tribunal thinks reasonable.