Overriding preferential payments
(1)
In the winding up of a company under this Act, the following debts shall be paid in priority to all other debts:—
(a)
workmen’s dues; and
(b)
where a secured creditor has realised a secured asset, so much of the debts due to such secured creditor as could not be realised by him or the amount of the workmen’s portion in his security (if payable under the law), whichever is less, pari passu with the workmen’s dues:
(2)
The debts payable under the proviso to sub-section (1) shall be paid in full before any payment is made to secured creditors and thereafter debts payable under that subsection shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions.
(a)
“workmen”, in relation to a company, means the employees of the company, being workmen within the meaning of clause (s) of section 2 of the Industrial Disputes Act, 1947 (14 of 1947);
(b)
“workmen’s dues”, in relation to a company, means the aggregate of the following sums due from the company to its workmen, namely:—
(i)
all wages or salary including wages payable for time or piece work and salary earned wholly or in part by way of commission of any workman in respect of services rendered to the company and any compensation payable to any workman under any of the provisions of the Industrial Disputes Act, 1947 (14 of 1947);
(ii)
all accrued holiday remuneration becoming payable to any workman or, in the case of his death, to any other person in his right on the termination of his employment before or by the effect of the winding up order or resolution;
(iii)
unless the company is being wound up voluntarily merely for the purposes of reconstruction or amalgamation with another company or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in section 14section 14 of the Workmen’s Compensation Act, 1923 (19 of 1923), rights capable of being transferred to and vested in the workmen, all amount due in respect of any compensation or liability for compensation under the said Act in respect of the death or disablement of any workman of the company;
(iv)
all sums due to any workman from the provident fund, the pension fund, the gratuity fund or any other fund for the welfare of the workmen, maintained by the company;
(c)
“workmen’s portion”, in relation to the security of any secured creditor of a company, means the amount which bears to the value of the security the same proportion as the amount of the workmen’s dues bears to the aggregate of the amount of workmen’s dues and the amount of the debts due to the secured creditors.
(1)
Notwithstanding anything contained in this Act or any other law for the time being in force, in the winding up of a company,—
(a)
workmen’s dues; and
(b)
debts due to secured creditors to the extent such debts rank under clause
(iii)
of the proviso to sub-section ( 1 ) of section 325section 325 pari passu with such dues, shall be paid in priority to all other debts:
(2)
The debts payable under the proviso to sub-section ( 1 ) shall be paid in full before any payment is made to secured creditors and thereafter debts payable under that sub-section shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions.
Notes, amendments & references (2)
326. Amended vide The Insolvency and Bankruptcy Code, 2016. To view the amendment, Click Here
Company means a company incorporated under this Act or under any previous company law