THE COMPANIES ORDINANCE, 1972

Liquidators

217.—(1) For the purpose of conducting the proceedings in winding up a company and performing such duties in reference thereto as are specified in this Ordinance and such additional duties as the court shall impose, the court may appoint a liquidator or liquidators.

(2) If before making a winding up order in respect of a company the court has appointed a provisional liquidator, he shall upon the making of the order continue to be the liquidator of the company unless and until the court otherwise orders, and any restrictions on his powers imposed by the court when he was the provisional liquidator shall cease to be operative.

218. Subject to section 217(2), the following provisions with respect to liquidators shall have effect on a winding up order being made : —

(a)   the Official Receiver shall by virtue of his office become the provisional liquidator, and shall continue to act as such until he or another person becomes liquidator and is capable of acting as such ;

(b)   unless the court otherwise orders, the Official Receiver shall summon separate meetings of the creditors and shareholders of the company for the purpose of determining whether or not an application is to be made to the court for appointing a liquidator in the place of the Official Receiver;

(c)   the court may make any appointment and order required to give effect to any such determination, and, if there is a difference between the determinations of the meetings of the creditors and shareholders in respect of the matter aforesaid, the court shall decide the difference and make such order thereon as the court may think fit;

(d)   in a case where a liquidator is not appointed by the court, the Official Receiver shall be the liquidator of the company;

(e) the Official Receiver shall by virtue of his office be the liquidator during any vacancy;

(f) a liquidator shall be described, where a person other than the Official Receiver is liquidator, by the style of "the liquidator" and, where the Official Receiver is liquidator, by the style of "the Official Receiver and liquidator," of the particular company in respect oi which he is appointed, and not by his individual name.

219.—(1) Where in the winding up of a company by the court a person other than the Official Receiver is appointed liquidator, that person : —

(a)   shall not be capable of acting as liquidator until he has notified his appointment to the Registrar and given security for the proper performance of his duties in the prescribed manner to the satisfaction of the registrar of the court;

(b)   shall give the Official Receiver such information and such access to and facilities for inspecting the books and documents of the company, and generally such aid as may be requisite for enabling the Official Receiver to perform his duties under this Ordinance.

(2) This section shall not apply to a provisional liquidator appointed before a winding up order is made unless he continues to be the liquidator of the company after the order is made.

220.—(1) A liquidator appointed by the court may resign or, on cause shown, be removed by the court.

(2)  Where a person other than the Official Receiver is appointed liquidator, he shall receive such salary or remuneration, by way of percentage or otherwise, as the court may direct, and, if more such persons than one are appointed liquidators, their remuneration shall be distributed among them in such proportions as the court directs.

(3)  A vacancy in the office of a liquidator appointed by the court shall be filled by the court.

(4)  If more than one liquidator is appointed by the court, the court shall declare whether any act by this Ordinance required or authorised to be done by the liquidator is to be done by all or any one or more of the persons appointed.

(5) Sections 38 and 39 shall apply to a liquidator, or to each of two or more liquidators, as though he or each of them were a managing director of the company.

221.—(1) Where a winding up order has been made or where a provisional liquidator has been appointed, the liquidator, or the provisional liquidator, as the case may be, shall take into his custody, or under his control, all the assets to which the company is or appears to be entitled.

(2) Where a company is being wound up by the court, the court may on the application of the liquidator by order direct that all or any part of the assets of whatsoever description belonging to the company or held by trustees, agents or ether persons on its behalf shall vest in the liquidator by his official name, and thereupon the assets to which the order relates shall vest accordingly, and the liquidator may, after giving such indemnity, if any, as the court may direct, bring or defend in his official name any action or other legal proceeding which relates to those assets or which it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its assets.

222.—(1) The liquidator in a winding up by the court shall have power with the sanction either of the court or of the committee of inspection—

(a)   to bring or defend any action or other legal proceeding in the name and on behalf of the company;

(b)   to carry on the business of the company, so far as may be necessary for the beneficial winding up thereof ;

(c)   to appoint a legal adviser or agent to assist him in the performance of his duties ;

(d) to pay any creditors in full if the assets of the company remaining in his hands will suffice to pay in full the debts and liabilities of the company which rank for payment before, or equally with, the debts or claims of the first mentioned creditors ;

(e) to make any compromise or arrangement with creditors or debenture holders or persons claiming to be creditors or debenture holders, or having or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages against the company, or whereby the company may be rendered liable;

(f) to compromise all calls and liabilities to calls, debts, and liabilities capable of resulting in debts and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and a contributory, or alleged contributory, or other debtor or person apprehending liability to the company, and all questions in any way relating to or affecting the assets or the winding up of the company, on such terms as may be agreed, and take any security for the discharge of any such call, debt, liability or claim, and give a complete discharge in respect thereof.

(2) The liquidator in a winding up by the court shall luve power : —

(a)   to sell the assets of the company by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels ;

(b)   to do all acts and to execute, in the name and on behalf of the company, all deeds, instruments, receipts, and other documents, and for that purpose to have instruments authenticated by notarial act;

(c)   to prove, rank, and claim in the bankruptcy, insolvency, or winding up of any contributory, for any amount owing to the company, and to receive dividends in the bankruptcy, insolvency, or winding up in respect of that amount;

(d)   to draw, accept, make, and indorse any bill of exchange, cheque or promissory note in the name and on behalf of the company, with the same effect with respect to the liability of the company as if the bill, cheque or note had been drawn, accepted, made, or indorsed by or on behalf of the company in the course of its business ;

(e)   to raise on the security of the assets of the company any money required for the purposes of the winding up ; (/) to take out in his official name letters of administration or representation to the estate of any deceased contributory, and to do in his official name any other act necessary for obtaining payment of any money due from a contributory or his estate or its assets which cannot be conveniently done in the name of the company, and in all such cases the money due shall, for the purpose of enabling the liquidator to take out the letters of administration or representation or to recover the money, be deemed to be due to the liquidator himself ;

(g) to appoint an agent to do any business which the liquidator is unable to do himself ;

(k) to do all such other things as may be necessary for winding up the affairs of the company and distributing its assets.

(3) The exercise by the liquidator in a winding up by the court of the powers conferred by this section shall be subject to the control of the court, and any creditor, shareholder, contributory or debenture holder, or the person on whose application the winding up order was made, may apply to the court with respect to any exercise or proposed exercise of any of those powers.

223.—(1) Subject to the provisions of this Ordinance, the liquidator of a company which is being wound up by the court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or shareholders at any meeting, or by the committee of inspection, and any directions given by the creditors or shareholders at any meeting shall in case of conflict be deemed to override any directions given by the committee of inspection.

(2) The liquidator may summon meetings of the creditors or shareholders for the purpose of ascertaining their wishes, and it shall be his duty to summon meeting at such times as the creditors or shareholders by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by shareholders of the company who are entitled to at least one-tenth of the voting rights exer-cisable at meetings of shareholders, or by creditors whose debts and claims against the company admitted by the liquidator or by the court amount to at least one-tenth in value of all the debts and claim so admitted.

(3)  The liquidator may apply to the court in the prescribed manner for directions in relation to any particular matter arising under the winding up.

(4)  Subject to the provisions of this Ordinance, the liquidator shall use his own discretion in the winding up of the company's affairs.

(5)  If any person is aggrieved by any act or decision of the liquidator, that person may apply to the court, and the court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just.

224. Every liquidator of a company which is being wound up by the court shall keep, in manner prescribed, proper books in which he shall cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditor, shareholder, contributory or debenture holder may, subject to the control of the court, personally or by his agent inspect any such books and make copies thereof or extracts therefrom.

225.—(1) Every liquidator of a company which is being wound up by the court shall pay the money received by him into such bank as the court may direct

(2)  If any such liquidator at any time retains for more than ten days a sum exceeding five thousand rupees, or such other amount as the court in any particular case authorises him to retain, then, unless he explains the retention to the satisfaction of the court, he shall pay interest on the amount so retained in excess at the rate of twenty per cent per annum, and shall be liable to disallowance of all or such part of his remuneration as the court may think just, and to be removed from his office by the court, and shall be liable to pay any expenses occasioned by reason of his default.

(3)  A liquidator of a company which is being wound up by the court shall not pay any sums received by him as liquidator into his private banking account.

226.—(1) Every liquidator of a company which is being wound up by the court shall, at such times as may be prescribed but not less than twice in each year during his tenure of office, send to the Official Receiver an account of his receipts and payments as liquidator.

(2) The account shall be in a prescribed form, shall be made in duplicate, and shall be verified by a declaration in the prescribed form signed by the liquidator, or, if there are more liquidators than one, by all the liquidators.

(3) The Official Receiver shall cause the account to be audited and for the purpose of the audit the liquidator shall furnish the Official Receiver with such vouchers and information as the Official Receiver may require, and the Official Receiver may at any time require the production of and inspect any books or accounts kept by the liquidator.

(4)  When the account has been audited, one copy thereof shall be filed and kept by the Official Receiver, and the other copy shall be delivered to the court for filing, and each copy shall be open to the inspection of any person without payment of a fee.

(5)  The Official Receiver shall cause the account when audited or a summary thereof to be printed, and shall send a printed copy of the account or summary by post to every creditor, shareholder, contributory or debenture holder who has furnished him with an address in Seychelles to which such copies or summaries are to be sent.

227.—(1) The Official Receiver shall take cognisance of the conduct of liquidators of companies which are being wound up by the court, and if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by this Ordinance or regulations made thereunder with respect to the performance of his duties, or if any complaint is made to the Official Receiver by any creditor, shareholder, contributory or debenture holder in regard thereto, the Official Receiver shall inquire into the matter and take such action thereon as he may think expedient.

(2) The Official Receiver may at any time require any liquidator of a company which is being wound up by the court to answer any inquiry in relation ro any winding up in which he is engaged, and may, if the Official Receiver thinks fit, apply to the court to examine him or any other person on oath concerning the winding up.

(3)  The Official Receiver may also direct an investigation to be made of the books and vouchers of the liquidator.

(4)  Any of the powers conferred on the Official Receiver by this section may also be exercised by the Registrar, and if the Registrar exercises any such power, the Official Receiver shall suspend any action taken by him in respect of the same matter, and shall make available to the Registrar all documents, evidence and information relating thereto in his possession or power, and shall assist the Registrar so far as he is able in the exercise of the said powers by him.

228.—(1) When a liquidator of a company which is being wound up by the court has realised all the assets of the company, or so much thereof as can, in his opinion, be realised without needlessly protracting the liquidation, and has distributed a final dividend (if any) to the creditors, and adjusted the rights of the contributories among themselves, and made a final payment (if any) to the contributories, or has resigned, or has been removed from his office, the Official Receiver shall, on his application, cause a report of his accounts to be prepared, and on his complying with all the requirements of the Official Receiver, shall submit the report to the Registrar together with a recommendation that a release of the liquidator should or should not be granted, and the Registrar shall take the report and recommendation into consideration and shall also consider any objection which may be urged by any creditor, shareholder, contributory, debenture holder or other interested person against the release of the liquidator, and shall either grant or withhold the release accordingly, subject nevertheless to an appeal to the court.

(2)  Where the release of a liquidator is withheld, the court may, on the application of any creditor, shareholder, contributory, debenture holder or other interested person, make such order as it thinks just, charging the liquidator with the consequences of any act or default which he may have done or made contrary to his duty.

(3)  An order of the Registrar releasing the liquidator shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the company, or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

(4) Where the liquidator has not previously resigned or been removed, his release shall operate as a removal of him from his office.