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creditor or

181. Any creditor or contributory of a Company Power of that has in manner aforesaidi) entered into any contributory arrangement with its creditors may, within three to appeal. weeks from the date of the completion of such arrangement, appeal to the Court against such arrangement, and the Court may thereupon, as it thinks just, amend, vary or confirm the same.

Sec. 137 of the English Companies' Act (25 and Vic., 6.89), 1862; and sec. 153 of the Indian Companies' Act X. of 1866, verbatim.

(i) Sec. 180, supra.

Applications under the above section in Act X. of 1866 must be made by petition, see rule 49, post.

182. Where a Company is being wound-up Power for voluntarily, the liquidators or any contributory of contributories the Company may apply to, the Court to determine in voluntary winding-up any question arising in the matter of such winding- to apply up, or to exercise, as respects the enforcing of calls to Court. or in respect of any other matter, all or any of the powers which the Court might exercise if the Company were being wound-up by the Court. Any such application may be made by motion. The Court, if satisfied that the determination of such question or the required exercise of power will be just and beneficial, may accede, wholly or partially, to such application, on such terms and subject to such conditions as the Court thinks fit, or it may make such other order or decree on such application as the Court thinks just.

Sec. 188 of the English Companies' Act (25 and 26 Vic., 89), 1862, mutatis mutandis, as to the Courts to be applied to; and sec. 154 of the Indian Companies' Act X. of 1866, verbatim. The words "any such application may be made by motion" are new, and their effect will be to alter rule 49, post, as regards this section.

For the objects and effect of this section, see the note to the sec. in Buckley, 3rd ed., pp. 262, 263; 4th ed., pp. 292, 293.

As to how a creditor can acquire the same powers as those conferred on liquidators and contributories under this section, see Buckley, 4th ed., 293.

Upon the application of a contributory under corresponding sec. (138) “Just and of the English Act, 1862, persons were summoned for examination under beneficial." sec. 115 of that Act (corresponding with sec. 162, supra) in IN RE Gold Co., 12 Ch. Div., 77, see the case cited supra; see also Hieron's case, 15 Ch. Div., 139, cited supra, where the meaning of the words "just and beneficial" was considered.

The summons in IN RE Whitehouse and Co., 9 Ch. D., 595 (cited fully supra, note to sec. 150) was taken out under this sec. by the liquidator.

Any question fairly arising in the winding-up may be brought before the Court by the liquidators under this section by motion, IN RE Union Bank of Kingston upon Hull, 13 Ch. D., 808.

Power of liquidators to

meeting.

183. Where a Company is being wound up call general voluntarily, the liquidators may, from time to time, during the continuance of such winding-up, summon general meetings of the Company for the purpose of obtaining the sanction of the Company by special resolution(i) or extraordinary resolution(ii), or for any other purposes they think fit.

Power to fill up vacancy

in office of liquidators.

Power of Court to appoint

In the event of the winding-up continuing for more than one year, the liquidators shall summon a general meeting of the Company at the end of the first year and of each succeeding year from the commencement of the winding-up, or as soon thereafter as may be convenient, and shall lay before such meeting an account showing their acts and dealings, and the manner in which the winding-up has been conducted, during the preceding year.

See. 139 of the English Companies' Act (25 and 26 Vic.. 89), 1862; and sec. 155 of the Indian Companies' Act X. of 1866, verbatim.

(i) Sec. 77 supra, p. 71.

(ii) Sec. 173 supra.

184. If any vacancy occurs in the office of liquidators appointed by the Company, by death, resignation or otherwise, the Company in general meeting may, subject to any arrangement they may have entered into with their creditors(), fill up such vacancy; and a general meeting for the purpose of filling up such vacancy may be convened by the continuing liquidators, if any, or by any contributory of the Company, and shall be deemed to have been duly held if held in manner prescribed by the regulations of the Company, or in such other manner as may, on application by the continuing liquidator, if any, or by any contributory of the Company, be determined by the Court.

Sec. 140 of the English Companies' Act (25 and 26 Vic.. c. 89), 1862; and sec. 156 of the Indian Companies' Act X. of 1866, verbatim.

(i) See sec. 179, supra.

185. If, from any cause whatever, there is no liquidator acting in the case of a voluntary windingliquidators. up, the Court may, on the application of a contributory(), appoint a liquidator or liquidators. The Court may also, on due cause shown(ii), remove any

liquidator and appoint another liquidator to act in the matter of a voluntary winding-up.

Sec. 141 of the English Companies' Act (25 and 26 Vic., .69), 1862; and sec. 157 of the Indian Companies' Act X. of 1866, verbatim.

(i) See rule 49, post.

(ii) See sec. 142, supra.

(iii) Secs. 194, 196, post.

"Due cause shown" is not equivalent to "if the Court shall think fit." Some unfitness in the liquidator must be shown in order to justify his removal, and the removing him is not a matter of pure judicial discretion. IN RE Sir John Moore Gold Co., 12 Ch. Div., 325; where intimacy existing between the liquidators and two directors against whom proceedings were being instituted, and a refusal on the part of the liquidator to take proceedings against them and a decided expression of his views in favour of their conduct in the matters complained of, were held to constitute "due cause' for his removal. Cf. ex parte Sheard IN RE Pooley, 16 Ch. Div., 107; which shows that the removal of a trustee in bankruptcy is governed by similar principles.

In IN RE The East India Bank the official liquidators of the Bank were removed by order of the High Court of Bombay, dated 19th June 1880, for personal misconduct in the liquidation, and were ordered to pay two-thirds of the costs of the Petitioner.

on conclusion

186. As soon as the affairs of the Company are Liquidators fully wound-up, the liquidators shall make up an of winding-up account showing the manner in which such winding- to make up up has been conducted and the property of the an account. Company disposed of: and thereupon they shall call a general meeting of the Company for the purpose of having the account laid before them, and hearing any explanation that may be given by the liquidators.

The meeting shall be called by advertisement, specifying the time, place and object of such meeting, and such advertisement shall be published one month at least previously to the meeting in the manner specified in section one hundred and seventysix(i).

Sec. 142 of the English Companies' Act (25 and 26 Vie., e. 89), 1862, mutatis mutandis, as to publication of the advertisement; and sec. 158 of the Indian Companies' Act, X. of 1866, verbatim, save that "sec. 148" is substituted in that Act for sec. 176."

Cf. sec. 95, clause 10 of Act XIX. of 1857.

(i) i.e., in the local official gazette, and also in some newspaper (if any) circulating in the place where the registered office of the Company is situate, sec. 176, supra.

"Fully wound-up," see IN RE London and Caledonian Marine Insurance Co., 11 Ch. Div., 140, per James, L. J., p. 143 :-"Take the case of an insolvent Company, insolvent because there were contributories at that time insolvent who had not paid their calls; or suppose there had been judgment against a hundred contributories recovered, and a return made by the sheriff that they had no assets and that he could not levy the

Liquidators to report meeting to Registrar.

Costs of voluntary liquidation.

amount of the judgment, could it be said that so long as a thing of that kind continued the Company could not be fully wound-up? or suppose au outstanding liability under a lease, under the covenints in which the Company might be liable any number of years afterwards, could not the Company be fully wound-up? We must put some practical and sensible meaning on the words, and in my opinion they mean as far as the liquidators can wind them up'; that is, when the liquidator has done all that he can to wind-up the Company, when he has disposed of the assets as far as he can realize them, got in the calls as far as he can enforce them, and paid the debts as far as he is aware of them, and has done all that he can do in winding-up the affairs, so that he has completed his business so far as he can, and is functus officio;" and IN RE Pinto Silver Mining Co., 8 Ch. Div., 273, was held to govern the case.

187. The liquidators shall make a return to the Registrar of such meeting having been held, and of the date at which the same was held; and, on the expiration of three months from the date of the registration of such return, the Company shall be deemed to be dissolved(i).

If the liquidators make default in making such return to the Registrar, they shall incur a penalty not exceeding fifty rupees for every day during which such default continues.

Sec. 143 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, substituting "fifty rupees" for "five pounds in that section; and sec. 159 of the Indian Companies' Act X. of 1866.

Cf. see. 95 of Aet XIX. of 1857.

(i) Sec. 159, supra, as to dissolution of a Company which has been wound up by the Court.

To enable the Court to make an order for winding-up a Company which has been dissolved under this and the last preceding section the dissolution must be impeached on the ground of fraud. IN RE London and Caledonian Marine Insurance Co., 11 Ch. Div., 140.

As a general rule a winding-up of a Company under supervision of the Court should be terminated in the same way as a purely voluntary winding. up, i.e., under sections 186 and 187 of this Act. IN BE The Carwar Co, I. L. R. 6 Bom. 640. See this case further cited in note to sec. 195, post.

188. All costs, charges and expenses properly incurred in the voluntary winding-up of a Company, including the remuneration of the liquidators, shall be payable out of the assets of the Company in priority to all other claims(i).

Sec. 144 of the English Companies' Act (25 and 26 Vic., e. 89), 1862; and sec. 160 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 95, cl. 12 of Act XIX. of 1857.

Cf. sec. 158, supra.

(i) "In priority to all other claims," ie., "in priority to all claims upon the Company when the order to wind-up was made, and no others," per Malins, V. C., IN RE Home Investment Society, 14 Ch. D., 170.

This case was considered by Chitty, J. IN RE Dronfield Silkstone Coal
Co. (No. 2) 23 Ch. D., 511, referred to in note to sec. 158, supra.

rights of creditors.

189. The voluntary winding-up of a Company Saving of shall not be a bar to the right of any creditor of such Company to have the same wound-up by the Court), if the Court is of opinion that the rights of such creditor will be prejudiced by a voluntary winding-up.

Sec. 145 of the English Companies' Act (25 and 26 Vic., e. 89), 1862; and sec. 161 of the Indian Companies' Act X. of 1866, verbatim.

Cf. sec. 96 of Act XIX. of 1857.

(i) i.e. before dissolution under sec. 187, supra, see IN RE Pinto Silver Mining Co., 8 Ch. Div., 273, and IN RE London and Caledonian Marine Insurance Co., 11 Ch. Div., 140, cited supra.

As to the circumstances under which a Company may be wound-up by the Court, and the orders which will in different cases be made in a petition for having a Company so wound-up, see secs. 128, 129, and 140, supra, and 191, 193, post, as to winding-up subject to supervision.

When the Company had resolved to wind-up voluntarily, Malins, V.C. held it unnecessary to consider whether the allegations in a petition for a compulsory winding-up stated a prima facie case under sec. 21 of the Life Assurance Companies' Act (33 and 34 Vic., c. 61), 1870, the resolution to wind-up voluntarily being an admission of insolvency. IN RE British Alliance Assurance Corporation, 9 Ch. D., 635.

As to a shareholder's petitioning for a compulsory winding-up after a Shareholder's resolution for a voluntary winding-up has been passed in IN RE Gold Petition. Co., 11 Ch. Div., all the cases cited at pp. 267, 268, of the 3rd ed. of Mr. Buckley's work were referred to and it was held that after a resolution has been passed for winding-up a Company voluntarily a shareholder cannot, as a general rule, obtain an order for winding compulsorily, or an order for continuing the voluntary winding-up under supervision, The only exceptions to the rule are when the resolution has been passed fraudulently, or when creditors appear to support the petition; per James, L. J., p. 710:-"I cannot find anything in this case to satisfy the Court, or to entitle the Court to say that it can deprive these shareholders, for they are persons interested, of the right which belongs ordinarily, and except under very exceptional circumstances, to the shareholders of every joint stock Company or corporation of this kind, of determining amongst themselves, by a majority, according to their view of what is most for their interest, what ought to be done or ought not to be done, either in the disposal of the property of the Company, or in making any claims against any supposed debtors to or persons liable to the Company."

As to the creditor's right to an order under this section (145) in the English Act, see Buckley, 3rd ed., pp. 268, 269; 4th ed., 298, 299, and cases therein cited.

adopt

190. Where a Company is in course of being Power of wound-up voluntarily, and proceedings are taken for Court to the purpose of having the same wound-up by the proceedings Court(i), the Court may, if it thinks fit, notwithstand- of voluntary winding-up. ing that it makes an order directing the Company to be wound-up by the Court, provide in such order or in any other order for the adoption of all or any of

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