The Maharashtra Cooperative Societies Act 1960

Chapter: X - LIQUIDATION

Section 102 to 110

Section 102 - Winding up

(1) If the Registrar,--
(a) after an inquiry has been held under section 83 or an inspection has been made under section 84 or on the report of the auditor auditing the accounts of the society, or
(b) on receipt of an application made upon a resolution carried by three-fourths of the members of a society present at a special general meeting called for the purpose, or
(c) of his own motion, in the case of a society which--
(i) has not commenced working, or
(ii) has ceased working, or
(iii) possesses shares or members' deposits not exceeding five hundred rupees, or
(iv) has ceased to comply with any conditions as to registration and management in this Act or the rules or the by laws.
is of the opinion that a society ought to be wound up, he may issue an interim order directing it to be wound up.

(2) A copy of such order made under 1 [* * * *] sub-section (1) shall be communicated, in the prescribed manner, to the society calling upon it to submit its explanation to the Registrar within a month from the date of the issue of such order, and the Registrar, on giving an opportunity to the society 2 [and to the creditors of the society, if any] of being heard, may issue a final order, vacating or confirming the interim order.

Footnote:
1. The words, brackets, letters and figures "clause (a) or sub -clause (iv) of clause (c) of were deleted by Mah. 33 of 1963, s. 23.
2. These words were inserted by Mah. 34 of 2001, (w.e.f. 7 - 9 - 2001) s. 9.

Section 103 - Appointment of Liquidators

(1) When an interim order is passed under the last preceding section or a final order is passed under that section, for the winding up of a society, the Registrar may in accordance with rules, appoint a person to be Liquidator of the society, and fix his remuneration.

(2) On issue of the interim order, the officers of the society shall hand over to the Liquidator the custody and control of all the property, effects and actionable claims to which the society is or appears to be entitled and, of all books, records and other documents pertaining to the business of the society and, shall have no access to any of them

(3) When a final order is passed confirming the interim order, the officers of the society shall vacate their offices, and while the winding up order remains in force the general body of the society shall not exercise any powers.

(4) The person appointed under this section as Liquidator shall, subject to the general control of the Registrar, exercise all or any of the powers mentioned in section 105. The Registrar may remove such person and appoint another in his place, without assigning any reason.

(5) The whole of the assets of the society shall on the appointment of Liquidator under this section vest in such Liquidator, and notwithstanding anything contained in any law for the time being in force, if any immovable property is held by a Liquidator on behalf of the society, the title over the land shall be complete as soon as the mutation of the name of his office is effected, and no Court shall question the title on the ground of dispossession, want of possession or physical delivery of possession.

(6) In the event of the interim order being vacated, the person appointed as Liquidator shall hand over the property, effects and actionable claims and books, records and other documents of the society to the officers who had delivered the same to him. The acts done, and the proceedings taken by Liquidator, shall be binding on the society, and such proceedings shall, after the interim order has been cancelled under the preceding section, be continued by the officers of the society.

Section 104 - Appeal against order of winding up

1 [(1) The committee, or any member of the society, ordered to be wound up may prefer an appeal against the final order of winding up within two months from the date of the issue of the order made under section 102, --
(a) if made by the Registrar, or the Special or Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the State Government;
(b) if made by any person other than the Registrar, or special or Additional or Joint Registrar on whom the powers of the Registrar are conferred, to the Registrar;
Provided that, no appeal shall lie against an order, issued under sub -clause (i), (ii) or (iii) of clause (c) of sub-section (1) of section 102.]

(2) No appeal from a member under this section shall be entertained unless it is accompanied by such sum as security for the costs of hearing the appeal, as may be prescribed.

Footnote:
1. Sub-section (1) was sub stituted by Mah. 7 of 1997, s. 12.

Section 105 - Powers of Liquidator

1 [(1)] The Liquidator appointed under section 103 shall have power,subject to the rules and the general supervision, control and direction of the Registrar,--
(a)to institute and defend any suit and other legal proceedings, civil or criminal, on bealf of the society, in the name of his office;

(b)to carry on the business of the society, so far as may be necessary for the beneficial winding up of the same;

(c)to sell immovable and movable property and actionable claims of the society bypublic auction or private contract, with power to transfer the whole or partthereof to any person or body corporate, or sell the same in parcels;

1 [(c-i) to transfer by sale assets valued at market price to a society registered with similar objects or to Government undertaking which carries on the same business as of the society under liquidation;

(c-ii)to lease to other societies or to Government undertaking, with prior approval of the Registrar,the property of the society to run the same business as that of the society under liquidation;]

(d)to raise, on the security of the assets of the society, any money required;

(e)to investigate all claims against the society and, subject to the provisions of the Act, to decide questions of, priority arising out of such claims, and to pay any class or classes of creditors in full or rateable according to the amount of such debts,the surplus being applied in payment of interest from the date of liquidation at a rate to be approved by the Registrar, but not, exceeding the contract rates;

(f)to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging themselves to have any claims, present or future, whereby the society may be rendered liable;

(g)to compromise all calls or liabilities to calls and debts and liabilities capable of resulting in debts, and all claims present or future, certain or contingent,subsisting or supposed to subsist between the society and a contributory or alleged contributory or other debtor or person apprehending liability to the society, and all questions in any way relating to or affecting the assets or the winding up of the society, on such terms as may be agreed, and take any security for the discharge of any such call, liability, debt, or claim, and give a complete discharge in respect thereof;

(h) to determine, from time to time, after giving an opportunity to answer the claim, the contribution to be made or remaining to be made by the members or past members or by the estates, nominees, heir or legal representatives of deceased members, or by any officer,past officer or the assets of the society, such contribution being inclusive of debts due from such members or officers;

(i) to issue requisitions under section 98;
3 [(j) to refer or to get referred any dispute to the Co-operative Court for decision;]

(k)to determine by what persons and in what proportion the costs of the liquidation shall be borne;

(l) to fix the time or times within which the creditors shall prove their debts and claims or be included for the benefit of any distribution made before those debts or claims are proved;

(m)to summon and enforce the attendance of witnesses and to compel the production of any books, accounts,documents, securities, cash or other properties belonging to or in the custody of the society by the same means and in the same manner as is provided in the case of a Civil Court under Code of Civil Procedure,1908;

(n) to do all acts, and to execute in the name and on behalf of the society, all deeds, receipts and other documents as may be necessary to such winding up;

(o)to take such action as may be necessary under section 19, with the prior approval of the Registrar, if there is reason to believe that the society can be re constituted.


4 (2) Not withstanding anything contained in sub-section (1), the Liquidator shall not have the right to vote on behalf of the society in liquidation, at the election of the members of the committee or of officers of any other society.

Footnote:
1. Section 105 was re-numbered assub-section (1) of that section by Man. 3 of 1974, s. 30(1).
2. Clauses (c-i) and (C-ii)were inserted by Mah. 20 of 1986, s. 53.
3. Clause (j) was substituted by Mah. 18 of 1982, s. 14.
4. Sub-section (2) was added by Mah. 3 of 1974, s. 30(2).

Section 106 - Effect of order of winding up

After expiry of the period for appeal against the order made under sub-section (1) of section 102 or where the appeal has been dismissed, the order for winding up shall be effective and shall operate in favour of all the creditors and of all the contributories of the society, as if it had been made on the joint petition of creditors and contributories. When a winding up order becomes effective, the Liquidator shall proceed to realise the assets of the society by sale or otherwise, and no dispute shall be commenced or if pending at the date of the winding up order, shall be proceeded with, against the society, except by leave of the Registrar and subject to such terms as the Registrar may impose. The Registrar, may of his own motion, however, entertain or dispose of any dispute by or against the society.

Section 107 - Bar of suit in winding up and dissolution matters

Save as expressly provided in this Act, no Civil Court shall take cognizance of any matter connected with the winding up or dissolution of a society under this Act; and when a winding up order has been made no suit or other legal proceedings shall lie or be proceeded with against the society or the liquidator, except by leave of the Registrar, and subject to such terms as he may impose:
Provided that, where the winding up order is cancelled, the provisions of this section shall cease to operate so far as the liability of the society and of the members thereof to be sued is concerned, but they shall continue to apply to the person who acted as Liquidator.

Section 108 - Audit of Liquidator's accounts

(1) The Liquidator, shall, during his tenure of office, at such times as may be prescribed, but not less than twice each year, present to the Registrar an account in the prescribed form of his receipts and payments as Liquidator. The Registrar shall cause the accounts to be audited in such manner as he thinks fit; and for the purpose of audit, the Liquidator shall furnish the Registrar with such vouchers and information as he, or the person appointed by him, may require.

(2) The Liquidator shall cause a summary of audited accounts to be prepared, and shall send a copy of such summary to every contributory.

(3) The Liquidator shall pay such fees as the Registrar may direct, for the audit of the accounts and books kept by him in the manner prescribed.

(4) The Liquidator shall be held liable for any irregularities which might be discovered in the course or as a result, of audit in respect of transactions subsequent to his taking over the affairs of the society, and may be proceeded against as if it were an act against which action could be taken under section 88:

Provided that, no such action shall be taken unless the irregularities have caused or are likely to cause loss to the society, and have occurred due to gross negligence or want or omission, in carrying out the duties and functions.

Section 109 - Termination of liquidation proceedings

(1) The winding up proceedings of a society shall be closed 1 [as soon as practicable within six years] from the date 2 [the Liquidator takes over the custody or control of all the property, effects and actionable claims to which the society is or appears to be entitled and of all books, records and other documents pertaining to the business of the society, under sub-section (2) of section 103], unless the period is extended by the Registrar:

Provided that, the Registrar shall not grant any extension for a period exceeding one year at a time and four years in the aggregate, and shall, immediately after the expiry of 3 [ten years] from the date 4 [aforesaid], deem that the liquidation proceedings have been terminated, and pass an order terminating the liquidation proceedings.

5 [Explanation.-- In the case of a society which is under liquidation at the commencement of the Maharashtra Co-operative Societies (Second Amendment) Act, 1985 the period of six years shall be deemed to have commenced from the date on which the Liquidator took over the custody or control as aforesaid].

(2) Notwithstanding anything contained in the foregoing sub -section, the Registrar shall terminate the liquidation proceedings on receipt of the final report from the Liquidator. The final report of the Liquidator shall state that the liquidation proceedings of the society have been closed, and how the winding up has been conducted and the property of and the claims of the society have been disposed of, and shall include a statement showing a summary of the account of the winding up including the cost of liquidation, the amount (if any), standing to the credit of the society in liquidation, after paying of its liabilities including the share or interest of members, and suggest how the surplus should be utilised.

(3) The Registrar, on receipt of the final report from the Liquidator, shall direct the Liquidator to convene a general meeting of the members of the society for recording his final report.

Footnote:
1. These words were substituted for the words "within three years" by Mah. 16 of 1969, s. 2(a).
2. This portion was substituted for the words "of the ord er of the winding up" by Mah. 20 of 1986, s. 54(a).
3. These words were substituted for the words "seven years" by Mah. 16 of 1969, s. 2(b).
4. This word was substituted for the words "of the ord er for winding up of the society" by Mah. 20 of 1986, s. 54(b).
5. This Explanation was sub stituted for the original, by Mah. 20 of 1986, s. 54(c).

Section 110 - Disposal of surplus assets

The surplus assets, as shown in the final report of the Liquidator of a society which has been wound up, may either be divided by the Registrar, with the previous sanction of the State Government, amongst its members in such manner as may be prescribed or be devoted to any object or objects provided in the bye-laws of the society, if they specify that such a surplus shall be utilised for the particular purpose or may be utilised for both the purpose. Where the surplus is not so divided amongst the members and the society has no such by-laws, the surplus shall vest in the Registrar, who shall hold it in trust and shall transfer it to the reserve fund of a new society registered with a similar object, and serving more or less an area which the society, to which the surplus belonged was serving:

Provided that, where no such society exists or is registered within three years of the cancellation of the society whose surplus is vested in the Registrar, Registrar may distribute the surplus, in the manner he thinks best, amongst any or all of the following:--
(a) an object of public utility and of local interest as may be recommended by the members in general meeting held under the preceding section;

(b) a federal society with similar objects to which the cancelled society was eligible for affiliation or, where no federal society exists, the State federal society which may be notified in this behalf by the State Government; and

(c) any charitable purpose as defined in section 2 of the Charitable Endowments Act, 1890.


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