Power of Court, on application, to direct

the proceedings taken in the course of the voluntary winding-up.

Sec. 146 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 162 of the Indian Companies' Act X. of 1866.

(i) Secs. 189 and 128, supra.

As to the commencement of the winding-up in such a case see sec. 196, post.

Winding-up subject to the Supervision of the Court. 191. When a resolution has been passed by a Company to wind-up voluntarily(i), the Court may make an order(ii) directing that the voluntary windwinding-up ing-up shall continue, but subject to such supervision subject to of the Court, and with such liberty for creditors, contributories or others to apply to the Court, and generally upon such terms and subject to such conditions, as the Court thinks just.

supervision.

Petition for winding-up

subject to

Sec. 147 of the English Companies' Act (25 and 26 Vic, c. 89), 1862; and sec. 163 of the Indian Companies Act X. of 1866, verbatim.

(i) Sec. 173, supra.

(ii) See rules 6, 7, and Form No. 4, post.

By sec. 193 post, the Court is to have regard to the wishes of the creditors and contributories of the Company, but by this section it is left absolutely in the discretion of the Court whether an order shall be made or not under this section. Buckley, 3rd ed., p. 270; 4th ed.,

p. 301.

The order will not be made upon a shareholder's petition unless the resolution to wind-up voluntarily has been passed fraudulently, or creditors appear to support the petition, IN RE Gold Co., 11 Ch. Div., 701, cited supra.

So far as the Court does not interfere, a winding-up under supervision remains essentially a voluntary winding-up ; but the Court in a windingup under supervision has full authority to interfere and to exercise to any extent the power which it might have exercised if an order had been made for winding up the Company by the Court. IN RE Carwar Co., I. L. R. 6 Bom., 640. See also per Lindley, L. J., IN RE Taurine Co., 25 Ch. Div., p. 138.

A supervision order is an order to continue the voluntary winding-up. The winding-up under supervision is, therefore, deemed to commence at the commencement of the voluntary winding-up, see sec. 174, supra. Buckley, 3rd ed., p. 271, 4th ed., p. 302.

192. A petition praying wholly or in part that a voluntary winding-up shall continue, but subject supervision. to the supervision of the Court, and which windingup is hereinafter referred to as a winding-up subject to the supervision of the Court, shall, for the purpose of giving jurisdiction to the Court over suits, be deemed to be a petition for winding-up the Company by the Court.

Sec. 148 of the English Companies' Act (25 and 26 Vie., (89), 1862, which adds "and actions" after "suits"; and sec. 164 of the Indian Companies' Act X. of 1866, verbatim. (i) Sections 134, 136, supra; as to the petition see rules 1-5, post.

193. The Court may, in determining whether a Court may have regard Company is to be wound-up altogether by the Court, to wishes of or subject to the supervision of the Court, in the creditors [or appointment of a liquidator or of liquidators, and in contributories.] all other matters relating to the winding-up subject to supervision, have regard to the wishes of the creditors or contributories as proved to it by any sufficient evidence, and may direct meetings(i) of the creditors or contributories to be summoned, held and regulated in such manner as the Court directs. for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the Court.

In the case of creditors, regard shall be had to the value of the debts due to each creditor, and, in the case of contributories, to the number of votes conferred on each contributory by the regulations of the Company (ii).

Sec. 149 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 165 of the Indian Companies' Act X. of 1866, verbatim.

(i) See rules 43-45, post.

(ii) Cf. sec. 140, and note thereto, supra; and see sec. 191, supra. See the cases collected in note to this section in the English Act, Buckley, 3rd ed., pp. 272, 273; 4th ed., 303, 304.

The shareholders' petition was refused in IN RE Gold Co., 11 Ch. Div., 701, the resolution to wind-up voluntarily not having been passed fraudulently, and no creditors appearing to support, see per Baggallay, L. J., at p. 718; see this case supra.

Court to

winding-up

194. Where any order is made by the Court Power to for a winding-up subject to the supervision of the appoint Court(i), the Court may, in such order or in any additional subsequent order, appoint any additional liquidator, liquidator in Any liquidater so appointed by the Court shall subject to have the same powers, be subject to the same obligations and in all respects stand in the same position, as if he had been appointed by the Company(ii).

The Court may, from time to time, remove any liquidator so appointed by the Court, and fill up

supervision.

Effect of order of Court for

any vacancy occasioned by such removal, or by death or resignation (iii).

Sec. 150 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, which adds "or liquidators" after "additional liquidator," and substitutes "liquidators" for "liquidator" in this section; and section 166 of the Indian Companies' Act X. of 1866, which corresponds verbatim with the section in the English Act.

(i) Sec. 191, supra.

(ii) Sec. 177, supra.

(iii) Cf. secs. 185, supra, and 196, post, and see rule 16, post.

The removal of liquidators appointed by the Court or the Company in a voluntary winding-up is provided for by sec. 185. supra.

As to the appointment of two creditors as liquidators in the place of the official liquidator who had been appointed in chambers, see IN RE Association of Land Financiers, 9 Ch. D., 269, cited in note to sec. 140,

supra.

As to removal of the liquidator "on due cause shown" see IN RE Sir John Moore Gold Mining Co., 12 Ch. Div., 325, cited in the note to sec. 185, supra.

195. Where an order is made for a winding-up subject to the supervision of the Court(i), the liquidawinding-up tor appointed to conduct such winding-up may, subject to subject to any restrictions(ii) imposed by the Court, supervision. exercise all his powers, without the sanction or intervention of the Court, in the same manner as if the Company were being wound up altogether voluntarily (iii).

Save as aforesaid, any order made by the Court for a winding-up subject to the supervision of the Court shall for all purposes, including the staying of suits and other proceedings(iv), be deemed to be an order of the Court for winding-up the Company by the Court, and shall confer full authority on the Court to make calls(v), or to enforce calls made by the liquidators, and to exercise all other powers which it might have exercised if an order had been made. for winding-up the Company altogether by the Court.

In the construction of the provisions whereby the Court is empowered to direct any act or thing to be done to or in favour of the official liquidators, the expression "official liquidator" shall be deemed to mean the liquidator conducting the winding-up subject to the supervision of the Court.

Sec. 151 of the English Companies' Act (25 and 26 Vic., c. 89), 1862; and sec. 167 of the Indian Companies' Act X. of 1866, verbatim, save that "liquidator" and "his powers" are subsiltuted for "liquidators" and "their powers" in the first paragraph of this section.

(i) Sec. 191, supra.

(ii) Cf. sec. 145, supra.

(ii) Sec. 177, supra.

(iv) Sec. 136, supra, and sec. 212, post.

(v) Sec. 151, supra.

winding-up

Although, under this section, the Court has power to make an order Dissolution of dissolving a Company in the course of winding-up subject to its super- Company vision, such cases must be exceptional, and can only occur when the Court under has deemed it proper to carry on the winding-up under supervision in a supervision. manner such as clearly to approximate to a winding-up by the Court. The ordinary rule is the other way, and it is reasonable that it should be so; as, generally, a winding-up under supervision is not conducted under so intimate a control of the Court as to put the Court in a position to judge of the correctness of the liquidators' action and the completeness of the winding-up.

So far as the Court does not interfere, a winding-up under sapervision remains essentially a voluntary winding-up; but the Court in a windingup under supervision has full anthority to interfere and to exercise to any extent the power which it might have exercised if an order had been made for winding-up the Company by the Court. IN RE Cormar Co. I. L. R. 6 Bom. 640 (Latham, J.), and see notes to sec. 160, 186, 187, supra.

196. Where an order has been made for the Appointment

in certain

to office

winding-up of a Company subject to the supervision cases of of the Court(i), and such order is afterwards super- voluntary seded by an order directing the Company to be liquidators wound-up compulsorily(), the Court may, in such of official last-mentioned order or in any subsequent order, liquidators. appoint the voluntary liquidators or any of them, either provisionally(iii) or permanently, and either with or without the addition of any other person, to be official liquidators.

Sec. 152 of the English Companies Act (25 and 26 Vic., c. 89), 1862; and sec. 168 of the Indian Companies' Act X. of 1866, verbatim.

(i) Sec. 191. supra. (ii) Sec. 128, supra.

(iii) Secs. 134 and 141, supra.

"When a supervision order is superseded by a compulsory order, the winding-up will date from the commencement of the winding-up under supervision, i.e. from the resolution to wind-up voluntarily, not from the presentation of the petition," Buckley, 3rd ed., 275; 4th ed., 307.

Cf. note to sec. 191, supra.

Dispositions after the commence

ment of the winding up

avoided.

Supplemental Provisions.

197. Where any Company is being wound-up by the Court or subject to the supervision of the Court, all dispositions of the property of the Company, and every transfer of shares or alteration in the status of the meinbers of the Company, made between the commencement of the winding-up) and the order for winding-up, shall, unless the Court otherwise orders, be void ii).

Sec. 153 of the English Companies' Act (25 and 26 Vic., c. 89), 1862, which contains the words "effects and things in action" (as to which see supra, note to sec. 144, cl. c) after "property"; and sec. 169 of the Indian Companies' Act X. of 1866, which corresponds verbatim with the section in the English Act.

(i) Secs. 133, 174, supra.

(ii) Cf. secs, 175, 212, 213.

See and consider Alex. Mitchell's case, 4 Ap. Ca., 548, 550; Rutherford's case, ibid. 510, 581; Buchan's case, ibid. 549, 583 ; Ker's case, ibid. 549, 598, and Nelson Mitchell v. City of Glusgon Bank, 4 Ap. Ca. 625; where the date of the stoppage of the Company and the issue of a notice of a meeting to pass voluntary resolutions was fixed as the period of time after which the shareholders were debarred from transferring their shares and escaping liability.

The Oriental Bank Corporation, the domicile and head office of which were in London, stopped payment in London on the 3rd May 1884, on which day a petition to wind-up was presented, and a provisional, liquidator appointed, whose powers were limited to taking possession of and protecting the assets of the bank; no power being conferred on him to carry on the business. On the 6th May the petition was duly advertised in the London Gazette, and on the 15th the order to wind-up was made. There being no telegraphic communication between England and the Mauritius and the matter being urgent, leave was given by the Court to the provisional liquidator to send an officer of the bank from Durban to the Mauritius by special steamer, to convey to the officers of the bank there information of the presentation of the petition in London, and of the appointment of the liquidator. The utmost despatch was used, and the information reached the bank at Mauritius on the 14th May. Up to that date the officers of the bank and other persons in Mauritius were necessarily ignorant of the stoppage of the bank in London, the presentation of the petition, the advertisement in the Gazette, and the appointment of the liquidator, and the business of the branch bank was carried on as usual, and large sums of money were paid in and out in the ordinary course of business and in good faith; the payments out being in excess of the payments in.

A summons was originally taken out by the holders of two bills of exchange dated the 8th and 10th May 1884, one for £200 and the other for £150, drawn by the branch bank at Mauritius on the head office in London; and was afterwards amended by adding as applicants the persons by whom the consideration of the bills was paid into the bank at Mauritius at the date of the bills; it asked for payment of the sums paid in, and for a declaration of the rights of the applicants respectively as against the bank and its estate in liquidation, and in particular for a decision whether they were entitled to immediate payment in full or to prove for the amount.