+44 1372 750800

Bahamas IBC Act -309

Bahamas Formations India Companies Act 1956 previous companies act next companies act

PART IX WINDING-UP, DISSOLUTION AND STRIKING-OFF

89.For the purposes of this Part "contributory" means every person liable to contribute to the assets of a company in the event of that company being wound up and includes any person alleged to be a contributor in proceedings for determining the persons who are to be deemed contributories and in all proceedings prior to the final determination of such persons.

Definition of "contributory".

90.(1) The liability of any person to contribute to the assets of a company, in the event of such company being wound up, shall be deemed to create a debt of the nature of a specialty accruing due from such person at the time when his liability commenced, but payable at the time or respective times when calls are made for enforcing such liability.

Nature of liability of contributory.

(2) Without affecting subsection (1) , where a contributory is bankrupt, the estimated value of his liability to future calls, as well as calls already made, may be proved against his estate.

91.Where any contributory dies either before or after he has been placed on the list of contributories, his personal representatives, heirs, and devisees shall be liable in the due course of administration to contribute to the assets of the company in discharge of the liability of such deceased contributory and such personal representatives, heirs, and devisees shall be deemed to be contributories accordingly.

Contributories in case of death.

92.Where any contributory becomes bankrupt, either before or after he has been placed on the list of contributories, his assignees shall be deemed to represent such bankrupt for all the purposes of the winding up, and shall be deemed to be contributories, accordingly, and may be called upon to admit to proof against the estate of such bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any monies due from such bankrupt in respect of his liability to contribute to the assets of the company being wound up.

Contributories in case of bankruptcy.

93.A company may be wound up by the court in the following circumstances-

Circumstances giving rise to winding-up by court.

(a) when the company has passed a resolution requiring the company to be wound up by the court;

(b) when the company does not commence its business within a year from its incorporation, or suspends its business for a period of one year;

(c) where at any time there is no member of the company;

(d) when the company is unable to pay its debts;

(e) if the court is of the opinion that it is just and equitable that the company should be wound up.

94.A company shall be deemed to be unable to pay its debts where-

Company when deemed unable to pay its debts.

(a) a creditor, by assignment or otherwise, to whom the company is indebted, in a sum exceeding one thousand dollars then due, has served on the company, at its registered office, a demand under his hand requiring the company to pay the sum due, and the company has for three weeks thereafter neglected to pay such sum, or to secure or compound for the same to the reasonable satisfaction of the creditor;

(b) execution of other process issued on a judgment, decree, or order obtained in any court in favour of any creditor in any proceeding instituted by such creditor against the company, is returned unsatisfied in whole or in part;

(c) it is proved to the satisfaction of the court that the company is unable to pay its debts; or

(d) it is proved to the satisfaction of the court that the value of the company's assets is less than the amount of its liabilities, having regard to its contingent and prospective creditors.

95.Any application to the court for the winding up of a company shall be by petition; and such petition may be presented by the company, a director, or by any one or more creditors, a contributory of the company, or by all or any of the above parties, together or separately; and every order which may be made on any such petition shall operate in favour of all the creditors and all the contributories of the company in the same manner as if it had been made upon the joint petition of a creditor and a contributory.

Application for winding up to be made by petition.

96.Any judge of a court may do in chambers any act which the court is authorized to do in a winding up by the court.

Power of court.

97.A winding up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the winding up.

Commencement of winding up.

98.The court may, at any time after the presentation of a petition for winding up a company under this Act, and before making an order for winding up the company, upon the application of the company, or of any creditor or contributory of the company, restrain further proceedings in any action, suit, or proceeding against the company, upon such terms as the court thinks fit; the court may also at any time after the presentation of such petition, and before the first appointment of liquidators, appoint provisionally an official liquidator of the estate and effects of the company.

Court may grant injunction.

99.Upon hearing the petition the court may dismiss the same with or without costs, may adjourn the hearing conditionally or unconditionally, and may make any interim order, or any other order that it deems just.

Course to be pursued by court.

100.When an order has been made for winding up a company under this Act, or a provisional liquidator has been appointed, no suit, action, or other proceedings shall be proceeded with or commenced against the company except with the leave of the court, and subject to such terms as the court may impose.

Actions and suits to be stayed.

101.When an order has been made for winding up a company under this Act, a copy of such order shall be forwarded by the company to the Registrar who shall make a minute thereof in the Register.

Copy of order to be forwarded to Registrar.

102.The court may at any time after an order has been made for winding up a company, upon the application by motion of any creditor or contributory of the company, and upon proof to the satisfaction of the court that all proceedings in relation to such winding up ought to be stayed, make an order staying the same, either altogether or for a limited time, on such terms and subject to such conditions as it deems fit.

Power of court to stay proceedings.

103.When an order has been made for winding up a company limited by guarantee and having a capital divided into shares, any share capital that may not have been called up shall be deemed to be assets of the company, and to be a debt of the nature of a specialty due to the company from each member to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the court.

Effect of order on share capital of company limited by guarantee.

104.(1) Subject to subsection (2) , the court may, as to all matters relating to the winding up, have regard to the wishes of the creditors or contributories, as proved to it by any sufficient evidence, and may, if it thinks it expedient, direct meetings of the creditors or contributories to be summoned, held, and conducted in such manner as the court directs, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of such meeting, and to report the result of such meeting to the court.

Court may have regard to wishes of creditors or contributories.

(2) Without affecting subsection (1) , in the case of creditors, regard is to 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 regulation of the company.

Official Liquidators

105.For the purpose of conducting the proceedings in winding up a company, and assisting the court therein, there may be appointed a person to be called an official liquidator; and the court having jurisdiction may appoint such person, either provisionally or otherwise, as it thinks fit, to the office of official liquidator; but in either case, if more persons than one are appointed to the office of official liquidator, the court may declare whether any act hereby required or authorized to be done by the official liquidator is to be done by all or any one or more of such persons, and the court may also determine whether any and what security is to be given by any official liquidator on his appointment.

Appointment of official liquidator.

106.(1) If no official liquidator is appointed or during any vacancy in such appointment, all the property shall be deemed to be in the custody of the court.

Remuneration of official liquidator.

(2) There shall be paid to the official liquidator such salary or remuneration, by way of percentages or otherwise, as the court may direct; and if more liquidators than one are appointed such remuneration shall be distributed amongst them in such proportions as the court shall direct.

107.The official liquidator shall be described by the style of the official liquidator of the particular company in respect of which he is appointed, and not by his individual name; and he shall take into his custody, or under his control, all the property, effects, and things in action to which the company is or appears to be entitled, and shall perform such duties in reference to the winding up of the company as may be imposed by the court.

Style and duties of official liquidator.

108.The official liquidator may, with the approval of the court, do any or all of the following-

Powers of official liquidator.

(a) bring or defend any action, suit, or prosecution, or other legal proceedings, civil or criminal, in the name and on behalf of the company;

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

(c) sell the real and personal property, effects, and things in action 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;

(d) do all acts and execute, in the name and on behalf of the company, all deeds, receipts, and other documents, and for that purpose use, when necessary, the company's seal;

(e) prove, rank, claim and draw a dividend, in the matter of the bankruptcy or insolvency of any contributory, for any balance against the estate of such contributory, and take and receive dividends in respect of such balance, in the matter of bankruptcy or insolvency as a separate debt due from such bankrupt or insolvent, and rateably with the other separate creditors;

(f) draw, accept, make and endorse any bill of exchange or promissory note in the name and on behalf of the company, also to raise upon the security of the assets of the company from time to time any requisite sum or sums of money; and drawing, accepting, making or endorsing of every such bill of exchange or promissory note on behalf of the company shall have the same effect with respect to the liability of such company as if such bill or note had been drawn, accepted, made, or endorsed by or on behalf of such company in the course of carrying on the business thereof;

(g) take out, if necessary, in his official name, letters of administration to any deceased contributory, and do in his official name any other act that may be necessary for obtaining payment of any monies due from a contributory or from his estate, and which act cannot be conveniently done in the name of the company; and in all cases where he takes out letters of administration, or otherwise uses his official name for obtaining payment of any monies due from a contributory, such monies shall for the purposes of enabling him to take out such letters or recover such monies, be deemed to be due to the official liquidator himself; and

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

109.The court may provide by any order that the official liquidator may exercise any of the above powers without the approval or intervention of the court, and where an official liquidator is provisionally appointed may limit and restrict his powers by the order appointing him.

Discretion of official liquidator.

110.(1) 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 property belonging to the company or held by trustees on its behalf shall vest in the liquidator by his official name, whereupon the property to which the order relates shall vest accordingly.

Vesting of property in liquidator.

(2) 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 that property or which is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.

111.The official liquidator may, with the approval of the court, appoint a counsel and attorney to assist him in the performance of his duties.

Assistance for liquidator.

Ordinary Powers of Court

112.As soon as may be after making an order for winding up the company, the court shall settle a list of contributories, with power to rectify the register of members in all cases where such rectification is required in pursuance of this Act, and shall cause the assets of the company to be collected, and applied in discharge of its liabilities.

Collection and application of assets.

113.In settling the list of contributories the court shall distinguish between persons who are contributories in their own right and persons who are contributories asbeing representatives of or being liable for the debts of others; and it shall not be necessary, where the personal representative of any deceased contributory is placed on the list, to add the heirs or devisees of such contributory, but such heirs or devisees may be added as and when the court thinks fit.

Provisions as to representative contributories.

114.The court may, at any time after making an order for winding up a company, require any contributory for the time being settled on the list of contributories, trustee, receiver, banker, or agent, or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the court directs, to or into the hands of the official liquidator, any sum or balance, books, papers, estate, or effects which happen to be in his hands for the time being, and to which the company is prima facie entitled.

Power of court to require delivery of property.

115.(1) Subject to subsections (2) and (3) , the court may, at any time after making an order for winding up the company, make an order on any contributory, for the time being settled on the list of contributories, directing payment to be made, in respect of any monies due from him or from the estate of the person whom he represents to the company exclusive of any monies which he or the estate of the person whom he represents may be liable to contribute by virtue of any call made or to be made by the court pursuant to this Part.

Power of court to order payment of debts by contributory.

(2) The court may, in making such order when the company is not limited, allow to such contributory by way of set-off any monies due to him or the estate which he represents from the company on any independent dealing or contract with the company, but not any monies due to him as a member of the company in respect of any dividend or profit.

(3) When all creditors of any company whether limited or unlimited are paid in full, any monies due on account whatever to any contributory from the company may be allowed to him by way of set-off against any subsequent call.

116.The court may, at any time after making an order for winding up a company and either before or after it has ascertained the sufficiency of the assets of the company, make calls on and order payment thereof by all or any of the contributories for the time being settled on the list of contributories, to the extent of their liability, for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the company, and the cost, charges, and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, and it may, in making a call, take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same.

Power of court to make calls.

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

Power of court to order payment into bank.

118.All monies, bills, notes, and other securities paid and delivered into a bank in the event of a company being wound up by the court shall be subject to such order and regulations for the keeping of the account of such monies and other effects, and for the payment and delivery in, or investment and payment and delivery out of, the same as the court may direct.

Regulation of account with court.

119.If any person made a contributory as personal representative of a deceased contributory makes default in paying any sum ordered to be paid by him, proceedings may be taken for administering the personal and real estates of such deceased contributory, or either of such estates, and of compelling payment of the monies due.

Representative contributory not paying monies ordered.

120.Any order made by the court pursuant to this Act upon any contributory shall, subject to the provisions for appealing against such order, be conclusive evidence that the monies, if any, thereby appearing to be due or ordered to be paid are due, and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons, and in all proceedings, with the exception of proceedings taken against the real estate of any deceased contributory, in which case such order shall only be prima facie evidence for the purpose of charging his real estate, unless his heirs or devisees were on the list of contributories at the time of the order being made.

Order conclusive evidence.

121.The court may fix a day on or 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 such debts are proved.

Court may exclude creditors not proving in certain time.

122.The court shall adjust the rights of the contributories amongst themselves, and distribute any surplus that may remain amongst the parties entitled thereto.

Court to adjust rights of contributories.

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

Court to order costs.

124.When the affairs of the company have been completely wound up, the court may make an order that the company shall be dissolved accordingly.

Dissolution of company.

125.Any order so made shall be reported by the official liquidator to the Registrar who shall make a minute in the Register of the dissolution of such company.

Registrar to make minute of dissolution.

Extraordinary Powers of Court

126.The court may, after it has made an order for winding up the company, summon before it any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or any person whom the court may deem capable of giving information concerning the trade, dealings, estate, or effects of the company; and the court may require any such officer or person to produce any books, papers, deeds, writings, or other documents in his custody or power relating to the company; and if any person so summoned after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, having no lawful impediment (made known to the court at the time of its sitting, and allowed by it) , the court may cause such person to be apprehended, and brought before the court for examination; but, in cases where any person claims any lien on papers, deeds, or writings or documents produced by him, such production shall be without prejudice to such lien, and the court shall have jurisdiction in the winding up to determine all questions relating to such lien.

Power of court to summon persons.

127.The court may examine upon oath, either orally or upon written interrogatories, any person appearing or brought before it concerning the affairs, dealings, estate, or effects of the company, and may reduce into writing the answers of every such person, and require him to subscribe the same.

Examination of parties by court.

128.The court may, at any time before or after it has made an order for winding up a company, upon proof being given that there is probable cause for believing that any contributory to such company is about to leave The Bahamas or otherwise abscond, or to remove or conceal any of his goods or chattels for the purpose of evading payment of calls, or for avoiding examination in respect of the affairs of the company, cause such contributory to be arrested, and his books, papers, monies, securities for monies, goods, and chattels to be seized, and him and them to be safely kept until such time as the court may order.

Power of arrest.

129.Any powers conferred on the court by this Act shall be deemed to be in addition to and not in restriction of any other powers subsisting of instituting proceedings against any contributory, or the estate of any contributory, or against any debtor of the company for the recovery of any call or other sums due form such contributory, or debtor, or his estate, and such proceedings may be instituted accordingly.

Powers of court cumulative.

130.All orders made by the court under this Act may be enforced in the same manner in which orders of such court made in any suit pending therein may be enforced.

Power to enforce orders.

131.A company shall commence to wind up and dissolve by a resolution of directors upon the expiration of such time as may be prescribed in its Memorandum or Articles for its existence.

Winding-up by resolution of directors.

132.(1) A company that has never issued shares may voluntarily commence to wind up and dissolve by a resolution of directors.

Voluntary winding-up and dissolution.

(2) Subject to any limitations or provisions to the contrary in its Memorandum or Articles, a company that has previously issued shares may voluntarily commence to wind up and dissolve by a resolution of members or by a resolution of directors.

133.(1) A resolution of members or directors to voluntarily wind up and dissolve a company shall also appoint a liquidator for the purpose of winding up the affairs of the company and distributing its property.

Appointment of liquidator.

(2) If there is no liquidator acting in the case of a voluntary winding-up, the court may, on the application of a contributory, appoint a liquidator and the court may, on due cause shown, remove any liquidator and appoint another liquidator to act in the matter of a voluntary winding-up.

134.Upon the commencement of a winding-up and dissolution required under section 131 or permitted under section 132 the directors may-

Powers of directors in a winding-up and dissolution.

(a) authorise a liquidator, by a resolution of directors, to carry on the business of the company only if the liquidator determines that to do so would be necessary or in the best interests of the creditors or members of the company; and

(b) determine to rescind the articles of dissolution only as permitted under section 140.

135.(1) A liquidator shall, upon his appointment in accordance with this Part and upon the commencement of a winding-up and dissolution, proceed-

Duties of liquidator.

(a) to identify all assets of the company;

(b) to identify all creditors of and claimants against the company;

(c) to pay or provide for payment of, or to discharge, all claims, debts, liabilities and obligations of the company;

(d) to distribute any surplus assets of the company to the members in accordance with the Memorandum and Articles;

(e) to prepare or cause to be prepared a statement of account in respect of the actions and transactions of the liquidator; and

(f) to send a copy of the statement of account to members if so required by the plan of dissolution required by section 138.

(2) A transfer, including a prior transfer, described in section 11(2) of all or substantially all of the assets of a company incorporated under this Act for the benefit of the creditors and members of the company, is sufficient to satisfy the requirements of subsection (1) (c) and (d) .

136.(1) In order to perform the duties imposed on him under section 135, a liquidator has all the powers of the company that are not reserved to the members under this Act or in the Memorandum or Articles, including, but not limited to, the power-

Powers of liquidator.

(a) to take custody of the assets of the company, and, in connection therewith, to register any property of the company in the name of the liquidator or that of his nominee;

(b) to sell any assets of the company at public auction or by private sale without any notice;

(c) to collect the debts and assets due or belonging to the company;

(d) to borrow money from any person for any purpose that will facilitate the winding-up and dissolution of the company and to pledge or mortgage any property of the company as security for any such borrowing;

(e) to negotiate, compromise, and settle any claim, debt, liability or obligation of the company;

(f) to prosecute and defend, in the name of the company or in the name of the liquidator or otherwise, any action or other legal proceedings;

(g) to retain counsel and attorneys, accountants and other advisers and appoint agents;

(h) to carry on the business of the company, if theliquidator has received authorisation to do so in the plan of dissolution or by a resolution of directors permitted under section 134, as the liquidator may determine to be necessary or to be in the best interest of the creditors or members of the company;

(i) to execute any contract, agreement or other instrument in the name of the company or in the name of the liquidator; and

(j) to make any distribution in money or in other property or partly in each, and if in other property, to allot the property, or an undivided interest therein, in equal or unequal proportions.

(2) Notwithstanding subsection (1) (h) , a liquidator shall not, without the permission of the court, carry on for a period in excess of two years the business of a company that is being wound up and dissolved under this Act.

137.Where a company is being wound up voluntarily the liquidators or any contributory of the company may apply to the court to determine any question arising in the matter of such winding up, or to exercise, as respects the enforcing of calls, 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, and 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, interlocutor, or decree on such application as the court thinks just.

Power of liquidators or contributories in voluntary winding up to apply to court.

138.(1) The directors of a company required under section 131 or proposing under section 132 to wind up and dissolve the company shall approve a plan of dissolution containing-

Procedure on winding-up and dissolution.

(a) a statement of the reason for the winding-up and dissolving;

(b) a statement that the company is, and will continue to be, able to discharge or pay or provide for the payment of all claims, debts, liabilities and obligations in full;

(c) a statement that the winding-up will commence on the date when articles of dissolution are submitted to the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of dissolution;

(d) a statement of the estimated time required to wind up and dissolve the company;

(e) a statement as to whether the liquidator is authorised to carry on the business of the company if the liquidator determines that to do so would be necessary or in the best interest of the creditors or members of the company;

(f) a statement of the name and address of each person to be appointed a liquidator and the remuneration proposed to be paid to each liquidator; and

(g) a statement as to whether the liquidator is required to send to all members a statement of account prepared or caused to be prepared by the liquidator in respect of his actions or transactions.

(2) If a winding-up and dissolution is being effected in a case where section 132(2) is applicable-

(a) the plan of dissolution shall be authorised by a resolution of members, or a resolution of directors, as the case may be, and the holders of the outstanding shares of a class or series of shares are entitled to vote on the plan of dissolution as a class or series only if the Memorandum or Articles so provide;

(b) if a meeting of members is to be held, notice of the meeting, accompanied by a copy of the plan of dissolution shall be given to each member, whether or not entitled to vote on the plan of dissolution; and

(c) if it is proposed to obtain the written consent of members, a copy of the plan of dissolution shall be given to each member, whether or not entitled to consent to the plan of dissolution.

(3) After approval of the plan of dissolution by the directors, and if required, by the members in accordance with subsection (2) , articles of dissolution shall be executed by the company and shall contain-

(a) the plan of dissolution; and

(b) the manner in which the plan of dissolution was authorised.

(4) Articles of dissolution shall be submitted to the Registrar who shall retain and register them in the Register and within 30 days immediately following the date on which the articles of dissolution are submitted to the Registrar, the company shall cause to be published, in the Gazette, in a publication of general circulation in The Bahamas and in a publication of general circulation in the country or place where the company has its principal office, a notice stating-

(a) that the company is in dissolution;

(b) the date of commencement of the dissolution; and

(c) the name and addresses of the liquidators.

(5) A winding-up and dissolution commences on the date the articles of dissolution are registered by the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of dissolution.

(6) A liquidator shall, upon completion of a winding-up and dissolution, submit to the Registrar a notice that the winding-up and dissolution has been completed and upon receiving the notice, the Registrar shall-

(a) strike the company off the Register; and

(b) issue a certificate of dissolution under his hand and seal certifying that the company has been dissolved.

(7) Where the Registrar issues a certificate of dissolution under his hand and seal certifying that the company has been dissolved-

(a) the certificate shall be prima facie evidence of compliance with all requirements of this Act in respect of dissolution; and

(b) the dissolution of the company is effective from the date of the issue of the certificate.

(8) Immediately following the issue by the Registrar of a certificate of dissolution under subsection (6) , the liquidator shall cause to be published in the Gazette, in a publication of general circulation in The Bahamas and in a publication of general circulation in the country or place where the company has its principal office, a notice that the company has been dissolved and has been struck off the Register.

139.Whenever a company is wound up voluntarily all transfers of shares except transfers made to or with the sanction of the liquidators, or alteration in the status of the members of the company taking place, after the commencement of such winding up are void.

Effect of voluntary winding up.

140.(1) In the case of a winding-up and dissolution permitted under section 132, a company may prior to submitting to the Registrar a notice specified in section 138(6) , rescind the articles of dissolution by-

Rescission of winding-up and dissolution.

(a) a resolution of directors in the case of a winding-up and dissolution under section 132(1) ; or

(b) a resolution of members or a resolution of directors, as the case may be, in the case of winding-up and dissolution under section 132(2) .

(2) A copy of a resolution referred to in subsection (1) shall be submitted to the Registrar who shall retain and register it in the Register.

(3) Within 30 days immediately following the date on which the resolution referred to in subsection (1) has been submitted to the Registrar, the company shall cause a notice stating that the company has rescinded its intention to wind-up and dissolve to be published in the Gazette, in a publication of general circulation in The Bahamas and in a publication of general circulation in the country or place where the company has its principal office.

141.Where-

Winding-up and dissolution of company unable to pay its claims, etc.

(a) the directors or, as the case may be, the members of a company that is required under section 131 or permitted under section 132 to wind up anddissolve, at the time of the passing of the resolution to wind-up and dissolve the company, have reason to believe that the company will not be able to pay or provide for the payment of or discharge of all claims, debts, liabilities and obligations of the company in full; or

(b) the liquidator after his appointment has reason so to believe,

then, the directors, the members or the liquidator, as the case may be, shall immediately give notice of the fact to the Registrar.

Winding up subject to the Supervision of the Court

142.When a resolution has been passed by a company to wind up voluntarily, the court may make an order directing that the voluntary winding up should continue, but subject to such supervision of the court, and with such liberty for creditors, contributories, or others, to apply to the court, and generally upon such terms and such conditions as the court thinks just.

Power of court on application to direct winding up subject to supervision.

143.A petition, praying wholly or in part that a voluntary winding up should continue, but subject to the supervision of the court, and which winding up 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 and actions, be deemed to be a petition for winding up the company by the court.

Petition for winding up subject to supervision.

144.(1) Subject to subsection (2) , the court may, in determining whether a company is be wound up altogether by the court or subject to the supervision of the court, 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.

Court may have regard to wishes of creditors.

(2) The court may, in the case of creditors, have regard 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.

145.(1) Subject to subsection (2) , where any order is made by the court for a winding up subject to the supervision of the court, the court may, in such order or in any subsequent order, appoint any additional liquidators, and any liquidator so appointed by the court shall have the same 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.

Powers of court to appoint additional liquidators in winding up subject to supervision.

(2) The court may from time to time remove any liquidator so appointed by the court and fill any vacancy occasioned by such removal or by death or resignation.

146.(1) 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 approval or intervention of the court, in the same manner as if the company were being wound up altogether voluntarily; but, 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 might have been exercised if an order had been made for winding up the company altogether by the court.

Effect of order of court for winding up subject to supervision.

(2) For the purposes of 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 include the liquidators conducting the winding up, subject to the supervision of the court.

147.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 in such order, or in any subsequent order, appoint the voluntary liquidators, either provisionally or permanently, and either with or without the addition of any other persons, to be official liquidators.

Appointment of voluntary liquidators to office of official liquidators.

Supplemental Provisions

148.Where any company is being wound up by the court or subject to the supervision of the court all dispositions of the property, effects, and things in action of the company and every transfer of shares, or alteration in the status of the members of the company made between the commencement of the winding up and the order for winding up are, unless the court otherwise orders, void.

Disposition after the commencement of winding up to be rendered void.

149.Where any company is being wound up, all books, accounts and documents of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.

Books of the company to be evidence.

150.Where any company has been wound up under this Act and is about to be dissolved, the books, accounts and documents of the company and of the liquidators may be disposed of as follows-

Disposal of books, accounts and documents of the company.

(a) where the company has been wound up by or subject to the supervision of the court, in such way as the court directs; and

(b) where the company has been wound up voluntarily, in such way as the company by resolution directs, but after the lapse of five years from the date of such dissolution, no responsibility shall rest on the company, or the liquidators, or anyone to whom the custody of such books, accounts and documents have been committed, by reason that the same, or any of them, cannot be made available to any party claiming to be interested therein.

151.Where an order has been made for winding up a company by the court, or subject to the supervision of the court, the court may make such order for the inspection by the creditors and contributories of the company of its books and papers as the court thinks just, and any books and papers in the possession of the company may be inspected by creditors or contributories, in conformity with the order of the court.

Inspection of books.

152.Any person to whom any thing in action belonging to the company is assigned, in pursuance of this Act, may bring or defend any action or suit relating to such thing in action in his own name.

Power of assignee to sue.

153.In the event of any company being wound up under this Act, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible as proof against the company, a just estimate being made, so far as is possible, of value of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.

Debts to be proved.

154.In the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt, and all persons who in any case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up and make such claims against the company as they are entitled to by virtue of this section.

Rules to be observed.

155.(1) Notwithstanding anything contained in this Act, in a winding up there shall be paid in priority to all other debts-

Preferential payments.

(a) all rates, taxes, assessments or impositions imposed or made under the provisions of any Act, and having become due and payable within twelve months next before the relevant date;

(b) all wages or salary of any clerk or servant in respect of services rendered to the company during four months before the relevant date;

(c) all wages of any workman or labourer in respect of services rendered to the company during two months before the relevant date;

(d) unless the company is being wound up voluntarily merely for the purpose of reconstruction or of amalgamation with another company or unless the company has at the commencement of the winding up under a contract with insurers with rights capable of being transferred to and vested in the workmen, all amounts due in respect of personal injury to workmen accrued before the relevant date.

(2) The debts referred to in subsection (1) -

(a) rank equally among themselves and shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions; and

(b) so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of holders of debentures under any floating charge created by the company, and be paid accordingly out of any property comprised in or subject to that charge.

(3) Subject to the retention of such sums as may be necessary for the costs and expenses of the winding up, the debts referred to in subsection (1) shall be discharged so far as the assets are sufficient to meet them.

(4) Where any payment on account of wages or salary has been made to any clerk, servant, workman, or labourer in the employment of a company out of money advanced by some person for that purpose, that person shall in a winding up have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which the clerk, servant, workman or labourer would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.

(5) In the event of a landlord or other person distraining or having distrained on any goods or effects of the company within three months next before the date of a winding up order, the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on, or the proceeds of the sale thereof, by in respect of any money paid under any such charge, the landlord or other person shall have the same rights of priority as the person to whom the payment is made.

(6) In any case in which it appears that there are numerous claims for wages by workmen and others employed by the company, it shall be sufficient if one proof for all such claims is made by some person on behalf of all such creditors; and such proof shall have annexed thereto, as forming part thereof, a schedule specifying the names of the workmen and others, and the amounts severally due to them.

(7) Any proof made in compliance with subsection (6) has the same effect as if separate proofs had been made by each workman and others.

(8) In this section the expression "relevant date" means-

(a) in the case of a company ordered to be wound up compulsorily which had not previously commenced to be wound up voluntarily, the date of the winding up order; and

(b) in any other case, the date of the commencement of the winding up.

156.(1) The liquidators may, with the approval of the court, where the company is being wound up by the court or subject to the supervision of the court, and by resolution of the company where the company is being wound up voluntarily, pay any classes of creditors in full, or make such compromise or other arrangement as the liquidators may deem expedient with creditors or persons claiming to be creditors, or persons 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.

Liquidation scheme may be approved.

(2) Where a company is being wound up in circumstances contemplated by subsection (1) the liquidators may, with the approval of the court, compromise-

(a) all calls and liabilities to calls, debts, and liabilities capable of resulting in debts;

(b) all claims, whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the company and any contributory or alleged contributory, or other debtor or person apprehending liability to the company; and

(c) all questions in any way relating to or affecting the assets of the company or the winding up of the company, upon the receipt of such sums, payable at such times, and upon such terms as may be agreed upon, with power for the liquidators to take any security for the discharge of such debts or liabilities, and to give complete discharges in respect of all or any such calls, debts or liabilities.

157.(1) Subject to subsection (2) , where any company is proposed to be or is in the course of being wound up voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another company, the liquidators of the first company may, with the approval of a resolution of the company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement-

Acceptance of shares etc., as consideration for sale of property of company.

(a) receive in compensation or part compensation for such transfer or sale shares, policies or other like interest in such other company, for the purpose of distribution amongst members of the company being wound up; or

(b) enter into any other arrangement whereby the members of the company being wound up may, in lieu of receiving cash, receive shares, policies, or other like interest, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing company,

and any sale made or arrangement entered into by the liquidators pursuant to this section shall be binding on the members of the company being wound up.

(2) If any member of a company being wound up who has not voted in favour of the resolution passed by the company of which he is a member at the meeting held for passing the resolution expresses his dissent from any such resolution in writing addressed to the liquidators or one of them, and left at the registered office of the company not later than seven days after the date of the meeting at which such resolution was passed, such dissentient member may require the liquidators to do one of the following-

(a) abstain from carrying such resolution into effect; or

(b) purchase the interest held by such dissentient member at a price to be determined.

(3) For the purpose of subsection (2) (b) the purchase money shall be paid before the company is dissolved, and shall be raised by the liquidators in such manner as may be determined by resolution of members.

(4) No resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or concurrently with any resolution for winding up the company, or for appointing liquidators, but if an order be made within a year for winding up the company by or subject to the supervision of the court, such resolution shall not be of any validity unless it is approved by the court.

158.The price to be paid or the purchase of the interest of any dissentient member may be determined by agreement, but if the parties dispute about the same, such dispute shall be settled by arbitration, and for the purposes of such arbitration the provisions of the Arbitration Act shall be incorporated within this Act.

Mode of determining price.

159.Where any company is being wound up by the court or subject to the supervision of the court, any attachment, distress, or execution put in force against the estate or effects of the company after the commencement of the winding up is void.

Certain attachments and executions to be void.

160.(1) Any conveyance, mortgage, delivery of goods, payment, execution, or other act relating to property as would, if made or done by or against any individual trader, be deemed in the event of his bankruptcy to have been made or done by way of undue or fraudulent preference of the creditors of such traders, shall, if made or done by or against any company, be deemed, in the event of such company being wound up under this Act, to have been made or done by way of undue or fraudulent preference of the creditors of such company, and is invalid accordingly.

Fraudulent preference.

(2) For the purposes of this section-

(a) the presentation of a petition for winding up a company in the case of a company being wound up by the court or subject to the supervision of the court; and

(b) a resolution for winding up the company, in the case of a voluntary winding up,

shall be deemed to correspond with the act of bankruptcy in the case of an individual trader, and any conveyance or assignment made by any company formed under this Act of all or any part of its estate and effects to trustees for the benefit of all or any part of its creditors is void.

161.Where, in the course of the winding up of any company under this Act, it appears that any past or present director, manager, official or other liquidator, or any officer of such company-

Assessment of damages against delinquent directors and officers.

(a) has misapplied or retained in his own hand or become liable or accountable for any monies of the company; or

(b) is guilty of any misfeasance or breach of trust in relation to the company,

the court may, on the application of any liquidator, or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally responsible, examine the conduct of such director, manager, or other officer and may compel him to repay any monies so misapplied or retained, or for which he has become liable or accountable, together with interest at such rate as the court thinks just, or to contribute such sums of money to the assets of the company by way of compensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the court thinks just.

162.Where any order is made for winding up a company by the court or subject to the supervision of the court, and it appears in the course of such winding up that any past or present director, manager, officer, or member of such company has been guilty of any offence in relation to the company for which he is criminally responsible, the court may, on the application of any person interested in such winding up, or of its own motion, direct the official liquidators to refer the matter to the Attorney-General who may institute and conduct a prosecution or prosecutions of such offence.

Prosecution of delinquent directors in winding up by court.

163.Where a company is being wound up voluntarily, and it appears to the liquidators conducting such winding up that any past or present director, manager, officer, or member of such company has been guilty of any offence in relation to the company for which he is criminally responsible, the liquidators may, refer the matter to the Attorney-General who may institute and conduct a prosecution or prosecutions of such offence.

Prosecution of delinquent directors in voluntary winding up.

164.The provisions of the Companies Act regarding receivers and managers govern mutatis mutandis the appointment, duties, powers and liabilities of receivers and managers of the assets of any company incorporated under this Act.

Receivers and managers.

165.(1) Where the Registrar has reasonable cause to believe that a company no longer satisfies the requirements prescribed for an International Business Company, the Registrar shall serve on the company a notice that the name of the company may be struck off the Register if the company no longer satisfies those requirements.(2) If the Registrar does not receive a reply within thirty days immediately following the date of the service of the notice referred to in subsection (1) , he shall publish a notice in the Gazette that the name of the company will be struck off the register unless the company or another person satisfies the Registrar that the name of the company should not be struck off.

Striking-off.

(3) At the expiration of a period of 90 days immediately following the date of the publication of the notice under subsection (2) , the Registrar shall strike the name of the company off the Register, unless the company or any other person satisfies the Registrar that the name of the company should not be struck off, and the Registrar shall publish notice of the striking-off in the Gazette.

(4) A company that has been struck off the Register under this section remains liable for all claims, debts, liabilities and obligations of the company, and the striking-off does not affect the liability of any of its members, directors, officers or agents.

(5) Where the Registrar is of the opinion that a company is in default with respect to any prescribed fee for thirty days, he shall send a notice to that company advising it as to the default and stating that unless the default is remedied within th