CHAPTER II. WINDING UP SUBJECT TO THE SUPERVISION OF THE COURT. The following are the sections of the Act relating to this proceeding. to direct Sect. 147. When a resolution has been passed by a Com- Power of pany to wind up voluntarily, the Court may make an order Court, on directing that the voluntary winding up should continue, application, but subject to such supervision of the Court, and with such winding up, liberty for creditors, contributories, or others, to apply to subject to the Court, and generally upon such terms and subject to such conditions as the Court thinks just. supervision. supervision. 148. A petition, praying wholly or in part that a volun- Petition for tary winding up should continue, but subject to the winding up, supervision of the Court, and which winding up is herein- subject to after 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 and actions, be deemed to be a petition for winding up the Company by the Court. creditors. 149. The Court may, in determining whether a Company Court may is to be wound up altogether by the Court or subject to the have regard supervision of the Court, in the appointment of liquidator to wishes of or liquidators, and in 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 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. Power of appoint addi dators in winding up, subject to 150. Where any order is made by the Court for a winding-up subject to the supervision of the Court, the tional liqui- Court may, in such order or in any subsequent order, appoint any additional liquidator or liquidators; and any liquidators so appointed by the Court shall have the same supervision. powers, be subject to the same obligations, and in all respects stand in the same position as if they had been appointed by the Company: The Court may from time to time remove any liquidators so appointed by the Court, and fill up any vacancy occasioned by such removal, or by death or resignation. Effect of order of Court for winding up subject to supervision. Appointment in certain cases of voluntary liquidators 151. Where an order is made for a winding up subject to the supervision of the Court, the liquidators appointed to conduct such winding up may, subject to any restrictions imposed by the Court, exercise all their powers, without the sanction or intervention of the Court, in the same manner as if the Company were being wound up altogether voluntarily; but, 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 actions, suits, and other proceedings, 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, 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, and 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 liquidators shall be deemed to mean the liquidators conducting the winding up, subject to the supervision of the Court. 152. Where an order has been made for the winding up of a Company subject to the supervision of the Court, and such order is afterwards superseded by an order directing the Company to be wound up compulsorily, the Court may to office of in such last mentioned order, or in any subsequent order, appoint the voluntary liquidators or any of them, either provisionally or permanently, and either with or without the addition of any other persons, to be official liquidators. official liqui dators. It will be seen on perusing the above sections that this mode of winding up a Company consists first of a voluntary winding up, and next of the are also given to the Court on a winding up sub- In the first instance the winding up is to be a voluntary one. For the various steps on that proceeding reference will be made to the last Chapter. If in the course thereof it appears necessary to place the proceedings under the supervision of the Court, a petition for that pur- Petition. pose must be presented in the same way as a petition to wind up by the Court. (See Chap. IV.) The Court may make an order on such petition, but in doing so will give liberty for creditors, contributories, or others, to apply to the Court, and will impose such terms and restrictions as it shall think just; sect. 147. (See Form of Order, Appendix.) The Court may also appoint an additional liquidator or liquidators, or remove them and Liquidator. fill up any vacancy (sect. 150). The liquidators appointed may, subject to any restriction and without any express sanction of the Court, exercise all the powers conferred in the voluntary winding up, but with this exception, any order made by the Court under this part of the Act is for all purposes, including the stay of actions and suits, to be deemed to be an order for winding up by the Court. Practice. The Court on these proceedings may have regard to the wishes of the creditors and contributories as ascertained at meetings convened pursuant to sect. 149. (See the rules relating to this section, and to sect. 91, p. 38.) The sections of the Act relating to dispositions after the commencement of the winding up (sect. 153); inspection of books (sect. 156); a general scheme of liquidation (sect. 159); power to compromise (sect. 160); as to certain attachments, sequestrations and executions being void (sect. 163); fraudulent preference (sect. 164), and prosecution of delinquent officers (sect. 167), apply equally to winding up under the supervision of the Court as to winding up by the Court; and reference will therefore be made to Parts I. and III. for the particulars of these sections and the practice thereon. The supervision of the Court is exercised by means of an application by any creditor or contributory, or by the liquidator, either on petition or motion, or for general purposes on application in chambers upon a special summons. This summons is issued and served in the same manner as in a Chancery suit, and the order made thereon is drawn up in chambers, or by the registrar, if the Judge so directs. In this way applications may be made by the official liquidator to settle any particular contributory on the list, or by any contributory to strike his name off or to put some other contributory on in his place. Applications may also be made by the official liquidator for an order for any contributory to pay the call made on him, but inasmuch as this application is not made till after the time fixed by the liquidator out of Court for payment of the call, the summons will be for the contributory to pay such call within four days after service on him of the order on such application. This order, when duly served with the usual indorsement, may be enforced as any other order of the Court. (See Chap. XVIII.) The rules of evidence will be the same as on a winding up by the Court. On the final winding up of the Company, the Court is to direct how the books and papers are to be disposed of. (Sect. 155, ante, Chap. XXII.) |