Companies Act Section 355

Companies Act, Section 355: Manner and Authority for Swearing Affidavits in Winding-Up Proceedings

Section 355 of the Companies Act, 2013 lays down the procedural framework for swearing affidavits in connection with proceedings related to the winding up of companies. Affidavits are crucial documents in legal proceedings, used to provide verified statements or facts under oath. This section specifies who is authorised to administer such affidavits and the jurisdictional legitimacy of affidavits made both within and outside India.

Furthermore, the provision ensures that the authenticity of affidavits sworn before designated authorities whether domestic or foreign is legally recognised and judicially acknowledged in India, thereby ensuring smooth evidentiary acceptance across jurisdictions.

1. Authorities Before Whom Affidavits May Be Sworn

Sub-section (1) of Section 355 identifies the competent authorities before whom an affidavit related to winding-up matters may be validly sworn. This ensures the legal validity of such affidavits in both domestic and international contexts.

(a) Affidavits Sworn Within India: In cases where an affidavit is to be sworn in India, it may be made before any of the following:

A court or Tribunal, a judge, or any person lawfully authorised under Indian law to take and receive affidavits.
This broad definition includes notaries public, judicial magistrates, and any person granted authority under law or by judicial order. The provision ensures that parties to winding-up proceedings can execute affidavits before accessible and legally empowered entities across various jurisdictions within India.

(b) Affidavits Sworn Outside India: Where the affidavit is executed outside India, it may be validly sworn before:

Any court, judge, or person lawfully authorised in the relevant foreign country to administer and receive affidavits, or Any Indian diplomatic or consular officer stationed in that country.
This clause ensures that Indian nationals and foreign entities involved in winding-up proceedings are not unduly burdened when located outside India. By recognising affidavits sworn before foreign legal authorities and Indian embassies or consulates, the law facilitates the participation of overseas stakeholders and preserves procedural efficiency.

2. Judicial Recognition of Foreign Affidavits and Related Documents

Sub-section (2) addresses the evidentiary acceptance and judicial recognition of affidavits and related documents that are sworn or executed under the authority of foreign courts or Indian diplomatic officers. According to this provision:

All Tribunals, judges, Justices, commissioners, and other judicial or quasi-judicial officers functioning in India are legally required to take judicial notice of the seal, stamp, or signature of:
The foreign or Indian court, The foreign judge or authorised person, The Indian diplomatic or consular officer, This judicial notice applies to affidavits as well as any other documents that are submitted in connection with winding-up proceedings under this Chapter.
In legal terms, "judicial notice" means that the court or Tribunal must accept the authenticity of such seals, stamps, or signatures without requiring further proof or verification. This provision streamlines the legal process by removing procedural hurdles and allowing affidavits and documents from outside India to be accepted without delay or question as to their formality or legitimacy.

Significance of Section 355

Section 355 plays a critical facilitative role in cross-border insolvency and winding-up matters by:

Simplifying the execution of affidavits for parties located both within and outside India, Ensuring procedural compliance by clarifying who may lawfully administer oaths for such affidavits.
Promoting legal certainty and efficiency in judicial proceedings by allowing the Tribunal and other adjudicating bodies to recognise affidavits and related documents without requiring repetitive validation.
Facilitating international cooperation and participation, particularly where foreign creditors, investors, or company officers are involved in the winding-up process.