Winding up petitions by unregistered companies may be filed by the company itself when the statute and articles permit it

An unregistered foreign company treated under the Indian Companies Act, 1913 as capable of being wound up could itself present a winding up petition, because the Act applied winding up provisions to such companies and did not exclude company-initiated applications. The commentary also notes that prior authorisation by a general meeting was not mandatory where the articles empowered the directors and no statute expressly required a shareholder resolution. Any objection by shareholders or procedural irregularity could be cured by ratification, so the petition was treated as validly presented.

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Issues: (i) whether a foreign company treated as an unregistered company could itself present a petition for winding up under the Indian Companies Act, 1913; (ii) whether a winding up petition presented in the name of the company required prior authorisation by a general meeting of shareholders.

Issue (i): Whether a foreign company treated as an unregistered company could itself present a petition for winding up under the Indian Companies Act, 1913.

Analysis: Section 271 of the Indian Companies Act, 1913 permitted an unregistered company to be wound up under the Act, and section 276 made the provisions relating to winding up applicable to such companies. Section 166 authorised an application for winding up by the company itself, and nothing in Part IX created an exception excluding an unregistered company from invoking that provision. The contention that the remedy was available only at the instance of creditors or contributories was rejected.

Conclusion: The company was competent to present the winding up petition.

Issue (ii): Whether a winding up petition presented in the name of the company required prior authorisation by a general meeting of shareholders.

Analysis: Section 162 did not compel the conclusion that a company could act only after a special resolution before presenting a winding up petition on grounds other than clause (i). The articles of association authorised the directors to exercise powers not expressly reserved to the company in general meeting, and no statutory provision expressly required shareholder consent for such a petition. The shareholders could object, and any irregularity could in any event be ratified.

Conclusion: Prior authorisation by a general meeting was not necessary, and the petition was validly presented.

Final Conclusion: The order for winding up was upheld and the appeal was dismissed with costs.

Ratio Decidendi: Where the governing statute does not expressly exclude it, a company competent to be wound up as an unregistered company may itself present a winding up petition, and the directors may do so on the company's behalf if the articles confer the necessary authority and no statute requires prior shareholder resolution.

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