ICSI Representation to MCA: Enabling Liquidators to File Statutory Forms During Liquidation Under IBC
Background and Context
The Institute of Company Secretaries of India (ICSI) has formally approached the Ministry of Corporate Affairs (MCA) by submitting a detailed representation dated 16th April 2026, drawing attention to significant practical difficulties encountered by companies that are in the midst of liquidation proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC). The representation, addressed to Ms. Deepti Gaur Mukerjee, Secretary, Ministry of Corporate Affairs, Government of India, underscores the urgent need for regulatory or system-level intervention to bridge a critical compliance gap that currently exists at the intersection of IBC and the Companies Act, 2013.
At its core, the issue revolves around a deceptively straightforward question: Can a liquidator, who steps into the shoes of the board upon commencement of liquidation, file statutory e-forms with the Registrar of Companies on behalf of the corporate debtor? Presently, the answer to this question remains ambiguous — and that ambiguity has real-world consequences.
The Legal Framework Governing Liquidation
Transfer of Powers to the Liquidator
When a liquidation order is passed by the Adjudicating Authority (National Company Law Tribunal), the corporate debtor undergoes a fundamental transformation in its governance structure. Section 33 of the Insolvency and Bankruptcy Code, 2016 explicitly provides that upon the passing of such an order, the powers of the Board of Directors, Key Managerial Personnel, and partners of the corporate debtor cease to have effect and are thereafter vested in the liquidator.
This transfer is not merely administrative — it is comprehensive and absolute. The liquidator assumes full control over the affairs of the corporate debtor, replacing the erstwhile management structure in its entirety.
Liquidator's Statutory Powers
Building upon Section 33, Section 35 of the Insolvency and Bankruptcy Code, 2016 confers wide-ranging powers upon the liquidator to carry out all functions necessary for the proper conduct of liquidation. These powers encompass management of assets, coordination with stakeholders, and execution of all acts required to bring the liquidation process to a lawful and orderly conclusion.
Duty to Preserve Records and Assets
Further reinforcing the liquidator's obligations, Regulation 44 read with Regulation 5 of the IBBI (Liquidation Process) Regulations, 2016 places a positive duty on the liquidator to preserve and protect the assets and records of the corporate debtor throughout the liquidation process. This duty is not discretionary — it is a binding regulatory obligation.