Sections 355 and 356 of Companies Act 2013: Affidavits and Power to Declare Dissolution Void
Sections 355 and 356 form part of the winding-up provisions of the Companies Act, 2013. Section 355 specifies the authorities before whom an affidavit required for the purposes of the relevant Chapter may be sworn. Section 356 empowers the National Company Law Tribunal (Tribunal) to declare the dissolution of a company void in specified circumstances.
Section 355 - Court, Tribunal or person before whom affidavit may be sworn
Section 355 deals with authentication of affidavits required under, or for the purposes of, the winding-up Chapter. In practical terms, it identifies who may lawfully administer the oath in India and abroad and requires Indian judicial authorities to recognize the relevant official seal, stamp or signature.
Where may the affidavit be sworn?
In India: before any court, tribunal, judge or person lawfully authorised to take and receive affidavits.
Outside India: before a court, judge or person lawfully authorised to take and receive affidavits in that country, or before an Indian diplomatic or consular officer.
Section 355(2) further requires tribunals, judges, Justices, commissioners and persons acting judicially in India to take judicial notice of the seal, stamp or signature of the relevant authority or officer on such affidavit or other document used for the purposes of the Chapter.
Section 356 - Power of Tribunal to declare dissolution of company void
Section 356 provides a statutory mechanism for restoring the legal position where a dissolved company needs to be treated as though the dissolution had not occurred. The jurisdiction is exercised by the Tribunal on an application by the Company Liquidator or another person who appears to the Tribunal to be interested.
Conditions and effect under Section 356(1)
The company must have been dissolved, whether under the winding-up Chapter, under section 232, or otherwise. An application must be made within two years from the date of dissolution. The Tribunal may impose such terms as it considers fit and declare the dissolution void. Once such an order is made, proceedings may be taken as if the company had not been dissolved.
Filing and Registrar requirements under Section 356(2)
The present sub-section (2), substituted by section 51 of the Companies (Amendment) Act, 2020 with effect from 21 December 2020, requires the Tribunal to forward a copy of its order to the Registrar within thirty days for recording. The Tribunal must also direct the Company Liquidator or applicant to file a certified copy within thirty days from the date of the order, or within such further period as the Tribunal allows, for recording by the Registrar.
Official legal source
For the current statutory text and amendments, refer to the official Companies Act, 2013 on India Code. The 2020 substitution of section 356(2) is contained in the Companies (Amendment) Act, 2020.
Frequently asked questions
Who can apply under Section 356?
The Company Liquidator or any other person who appears to the Tribunal to be interested may apply.
What is the limitation period under Section 356?
The application to declare dissolution void must be made within two years from the date of dissolution.
What happens after dissolution is declared void?
Proceedings may thereafter be taken as if the company had not been dissolved, subject to the terms imposed by the Tribunal.