THE COMPANIES ORDINANCE, 1972

General powers of the court in case of winding up by the court

233.—(1) At any time after making an order for winding up a company, the court may, on the application either of the liquidator or the Official Receiver or any creditor, shareholder, contributory or debenture holder of the company, and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.

(2)  On any application under this section the court may, before making an order, require the Official Receiver or the Registrar to furnish to the court a report with respect to any facts or matters which are in his opinion relevant to the application.

(3)  A copy of every order made under this section shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the Registrar who shall make a minute of the order in his records relating to the company.

234.—(1) As soon as may be after making a winding up order in respect of a company, the court shall settle a list of contributor's from the company's register of members, with power to rectify the register of members where rectification is necessary, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities :

Provided that, where it appears to the court that it will not be necessary to make calls on or to adjust the rights of contributories, the court may dispense with the settlement of a list of contributories,

(2)  In settling the list of contributories, the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of, or liable for the debts of, others.

(3)  The court may settle a list of shareholders of the company in any case where it dispenses with the settlement of a list of contributories.

235. The court may, at any time after making a winding up order in respect of a company, require any member, shareholder or contributory, or any director, trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the court directs, to the liquidator any assets, or books and papers in his hands to which the company is prima facie entitled,

236.—(1) The court may, at any time after the appointment of a provisional liquidator or the making of a winding up order, summon before it any director or officer of the company or person known or suspected to have in his possession any assets of the company or supposed to be indebted to the company, or any person whom the court deems capable of giving information concerning the promotion, formation, trade, dealings, affairs, or assets of the company.

(2)  The court may examine any such person on oath concerning the matters aforesaid, either by word of mouth or on written interrogatories, and may reduce his answers to writing and require him to sign them.

(3)  The court may require any such person to produce any books and papers in his custody or power relating to the company, but, where he claims an right to retain books or papers produced by him, the production shall be without prejudice to that right, and the court shall have jurisdiction in the winding up to determine all questions relating to that right

(4)  If any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, not having a lawful impediment (made known to the court at the time of its sitting, and allowed by it), the court may cause him to be apprehended and brought before the court for examination.

237.—(1) The court may, at any time after making a winding up order, make an order on any contributory for the time being on the list of contributories to pay, in manner directed by the order, any money due to the company from him or from the estate of the person whom he represents, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Ordinance.

(2)  The court may, at any time after making a winding up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on all or any of the contributories for the time being settled on the list of the contributories to the extent of their liability, for payment of any money which the court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, and make an order for payment of any calls so made.

(3)  In making a call the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.

(4)  In the case of any company, when all the creditors have been paid in full, any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call, but subject as aforesaid, no contributory shall be entitled or permitted to set off against any call due from him any sum for which he has a claim against the company.

(5)  An order made by the court on a contributory shall, subject to any right of appeal, be conclusive evidence, that the money thereby appearing to be due or ordered to be paid is due.

238.—(1) The court may fix a time or times within which creditors of the company are to prove their debts or claims, or to be excluded from the benefit of any distribution made before those debts are proved.

(2)  The court may, in the event of the assets being insufficient to satisfy the debts and liabilities of the company, make an order as to the payment out of its assets of the costs, charges, and expenses incurred in the winding up in such order of priority as the court thinks just.

(3)  The court shall adjust the rights of the contributories among themselves, and distribute any surplus among the shareholders of the company or the persons claiming under them in accordance with their respective rights.

(4)  The court may, at any time after making a winding up order, make such order for inspection of the books and papers of the company by creditors, shareholders, contri-butories or debenture holders as the cottrt thinks just, and any books and papers in the possession of the company may be inspected by creditors, shareholders, contribu-tories and debenture holders accordingly, but not further or otherwise.

239.—(1) The court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into a bank appointed by the court to the account of the liquidator instead of to the liquidator, and any such order may be enforced in the same manner as if it had directed payment to the liquidator.

(2) All moneys and securities paid or delivered into such a bank shall be subject in all respects to the orders of the court.

240.—(1) Where in any winding up proceedings the Official Receiver becomes the liquidator of a company, whether provisionally or otherwise, he miay, if satisfied that the nature of the assets or business of the company, or the interests of the creditors, shareholders, cohtributories or debenture holders, require the appointment of a special manager of the assets or business of the company other than himself, apply to the court, and the court may on such application, appoint a special manager of the said assets or business to act during such time as the court may direct, with such powers, including any of the powers of a receiver under section 73(4), as may be entrusted to him by the court

(2)  The special manager shall give such security and account in such manner or as the court directs.

(3)  The special manager shail receive such remuneration as may be fixed by the court.

241.—(1) Where an order has been made for winding up a company by the court, and either -

(a) the Official Receiver has in any report to the court made by him under this Ordinance stated that in his opinion a fraud or a serious breath of duty or serious rflisconduct has been committed by any person in the promotion or formation of the company, or by any director or officer of the company in relation to the company since its formation; or

(b) a primo facie case is established by any creditor, shareholder, contributory or debenture holder of the company that a fraud or a serious breach of duty or serious misconduct has been committed by any such person ; the court may direct that that person shall attend before the court on a day appointed by the court for that purpose and be publicly examined as to the promotion or formation, or the conduct of the business, of the company, or as to his conduct and dealings as an officer thereof.

(2)  The Official Receiver shall take part in the examination, and for that purpose may employ a barrister or an attorney.

(3)  The liquidator (where the Official Receiver is not the liquidator), any creditor, shareholder, contributory or debenture holder of the company, and the Registrar, may also take part in the examination either personally or by a barrister or an attorney.

(4)  The court may put such questions to the person examined as the court thinks fit.

(5)  The person examined shall be examined on oath and shall answer all such questions as the court may put or allow to be put to him, including questions the answers to which will or may incriminate him.

(6)  A person ordered to be examined under this section shall be entitled at his own cost, before his examination, to be furnished with a copy of any report hv the Official Receiver which contains allegations against him, and may at his own cost employ a barrister or an attorney, who shall be at liberty tj put to him such questions as the court may deem just for the purpose of enabling him to explain or qualify any answers given by him :

Provided that, if any such person applies to the court to be exculpated from any charges made or suggested against him, it shall be the duty of the Official Receiver to appear on the hearing of the application and call the attention of the court to any matters which appear to the Official Receiver to be relevant, and if the court, after hearing any evidence given or witnesses called by the Official Receiver, grants the application, the court may allow the applicant such costs as in its discretion it may think fit.

(7)  Notes of the examination shall be taken down in writing and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him in civil or crimimd proceedings, and shall be open to the inspection of any person without payment of a fee at all reasonable times.

(8)  The court may, if it thinks fit, adjourn the examination from time to time.

242.  The court, at any time either before or after making a winding up order, on proof of probable cause for believing that a contributory, director or officer is about to quit Seychelles, or otherwise to abscond, or to remove or conceal any of his assets for the purpose of evading payment of calls or discharging his liabilities to the company, or of avoiding examination respecting the affairs of the company, may cause the contributory, director or officer to be arrested, and his books and papers and moveable property to be seized, and him and them to be safely kept until such time as the court may order.

243.  Any powers by this Ordinance conferred on the court shall be in addition to, and not in restriction of, any existing powers of proceedings against any contributory or debtor of the company, or the heirs, estate or assets of any contributory or debtor, for the recovery of any call or other sums.

244.  Provision may be made by regulations for enabling or requiring all or any of the powers and duties conferred and imposed on the court by this Ordinance in respect of the following matters relating to a company which is being wound up by the court, namely : —

(a)   the holding and conducting of meetings to ascertain the wishes of creditors and shareholders of the company;

(b)   the settling of lists of contributories and the rectifying of the register of members where required, and the collecting and applying of the assets of the company;

(c)   the paying, delivery, surrender or transfer of money, assets, books or papers to the liquidator;

(d)   the making of calls;

(e)   the fixing of a time within which debts and claims must be proved ;

to be exercised or performed by the liquidator as an officer of the court, and subject to the control of the court :

Provided that the liquidator shall not, without the special leave of the court, rectify the register of members, and shall not make any call without either the special leave of the court or the authorisation of the committee of inspection.

245.—(1) When the affairs of a company have been completely wound uv, the court shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly.

(2)  A copy of the order shall within fourteen days from the date thereof be delivered to the Registrar by the liquidator, and the Registrar shall enter in Ins records a minute of the dissolution of the company.

(3)  If the liquidator makes default in complying with the requirements of this section, he shall be liable to a fine of one hundred rupees for every day during which he is in default.