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33 1963

COMPANIES ACT, 1963

PART VII.

Receivers.

Disqualification of body corporate for appointment as receiver.

314. —A body corporate shall not be qualified for appointment as receiver of the property of a company, and any body corporate which acts as such a receiver shall be liable to a fine not exceeding £100.

Disqualification of undischarged bankrupt from acting as receiver.

315. —(1) If any person being an undischarged bankrupt acts as receiver of the property of a company on behalf of debenture holders, he shall, subject to subsection (2), be liable on conviction on indictment to imprisonment for a term not exceeding 2 years, or on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding £100 or to both.

(2) Subsection (1) shall not apply to a receiver where the appointment under which he acts and the bankruptcy were both before the operative date.

Power of receiver to apply to the court for directions and his liability on contracts.

316. —(1) A receiver of the property of a company appointed under the powers contained in any instrument may apply to the court for directions in relation to any particular matter arising in connection with the performance of his functions, and on any such application, the court may give such directions, or make such order declaring the rights of persons before the court or otherwise, as the court thinks just.

(2) A receiver of the property of a company shall be personally liable on any contract entered into by him in the performance of his functions (whether such contract is entered into by him in the name of such company or in his own name as receiver or otherwise) unless the contract provides that he is not to be personally liable on such contract, and he shall be entitled in respect of that liability to indemnity out of the assets; but nothing in this subsection shall be taken as limiting any right to indemnity which he would have apart from this subsection, or as limiting his liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.

(3) Where a receiver of the property of a company has been appointed or purported to be appointed and it is subsequently discovered that the charge or purported charge in respect of which he was so appointed or purported to be appointed was not effective as a charge on such property or on some part of such property, the court may, if it thinks fit, on the application of such receiver, order that he be relieved wholly or to such extent as the court shall think fit from personal liability in respect of anything done or omitted by him in relation to any property purporting to be comprised in the charge by virtue of which he was appointed or purported to be appointed which if such property had been effectively included in such charge or purported charge would have been properly done or omitted by him and he shall be relieved from personal liability accordingly, but in that event the person by whom such receiver was appointed or purported to be appointed shall be personally liable for everything for which, but for such order, such receiver would have been liable.

(4) This section shall apply whether the receiver was appointed before, on, or after the operative date, but subsection (2) shall not apply to contracts entered into before the operative date.

Notification that receiver appointed.

317. —(1) Where a receiver of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that a receiver has been appointed.

(2) If default is made in complying with the requirements of this section, the company and any of the following persons who knowingly and wilfully authorises or permits the default, namely, any officer of the company, any liquidator of the company and any receiver, shall be liable to a fine of £20.

Power of court to fix remuneration of receiver.

318. —(1) The Court may, on an application made to it by the liquidator of a company or by any creditor or member of the company, by order fix the amount to be paid by way of remuneration to any person who, under the powers contained in any instrument, has been appointed as receiver of the property of the company notwithstanding that the remuneration of such receiver has been fixed by or under that instrument.

(2) Subject to subsection (3), the power of the court under subsection (1) shall, where no previous order has been made in relation thereto under that subsection—

(a) extend to fixing the remuneration for any period before the making of the order or the application therefor; and

(b) be exercisable notwithstanding that the receiver has died or ceased to act before the making of the order or the application therefor; and

(c) where the receiver has been paid or has retained for his remuneration for any period before the making of the order any amount in excess of that fixed by the court for that period, extend to requiring him or his personal representatives to account for the excess or such part thereof as may be specified in the order.

(3) The power conferred by paragraph (c) of subsection (2) shall not be exercised in relation to any period before the making of the application for the order unless in the opinion of the court there are special circumstances making it proper for the power to be so exercised.

(4) The court may from time to time on an application made by the liquidator or by any creditor or member of the company or by the receiver, vary or amend an order made under subsection (1).

(5) This section shall apply whether the receiver was appointed before, on, or after the operative date and to periods before, as well as to periods after, the operative date.

Information to be given when receiver is appointed.

319. —(1) Where a receiver of the whole or substantially the whole of the property of a company (hereinafter in this section and in section 320 referred to as “the receiver”) is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this section and section 320—

(a) the receiver shall forthwith send notice to the company of his appointment; and

(b) there shall, within 14 days after receipt of the notice, or such longer period as may be allowed by the court or by the receiver, be made out and submitted to the receiver in accordance with section 320 a statement in the prescribed form as to the affairs of the company; and

(c) the receiver shall within 2 months after receipt of the said statement send to the registrar of companies, to the court, to the company, to any trustees for the debenture holders on whose behalf he was appointed and, so far as he is aware of their addresses, to all such debenture holders, a copy of the statement and of any comments he sees fit to make thereon.

(2) The receiver shall within one month after the expiration of the period of 6 months from the date of his appointment and of every subsequent period of 6 months, and within one month after he ceases to act as receiver of the property of the company, send to the registrar of companies an abstract in the prescribed form showing the assets of the company of which he has taken possession since his appointment, their estimated value, the proceeds of sale of any such assets since his appointment, his receipts and payments during that period of 6 months or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amounts of his receipts and of his payments during all preceding periods since his appointment.

(3) Where a receiver is appointed under the powers contained in any instrument, this section shall have effect with the omission of the references to the court in subsection (1), and in any other case, references to the court shall be taken as referring to the court by which the receiver was appointed.

(4) Subsection (1) shall not apply in relation to the appointment of a receiver to act with an existing receiver or in place of a receiver dying or ceasing to act, except that, where that subsection applies to a receiver who dies or ceases to act before it has been fully complied with, the references in paragraphs (b) and (c) thereof to the receiver shall (subject to subsection (5)) include references to his successor and to any continuing receiver.

Nothing in this subsection shall be taken as limiting the meaning of “the receiver” where used in or in relation to subsection (2).

(5) This section and section 320, where the company is being wound up, shall apply notwithstanding that the receiver and the liquidator are the same person, but with any necessary modifications arising from that fact.

(6) Nothing in subsection (2) shall be taken to prejudice the duty of the receiver to render proper accounts of his receipts and payments to the persons to whom, and at the times at which, he may be required to do so apart from that subsection.

(7) If the receiver makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding £100.

Contents of statement to be submitted to receiver.

320. —(1) The statement as to the affairs of a company required by section 319 to be submitted to the receiver (or his successor) shall show as at the date of the receiver's appointment particulars of the company's assets, debts and liabilities, the names and residences of its creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as may be prescribed.

(2) The said statement shall be submitted by, and be verified by affidavit of, one or more of the persons who are, at the date of the receiver's appointment, the directors and by the person who is at that date the secretary of the company, or by such of the persons hereafter in this subsection mentioned as the receiver (or his successor), may require to submit and verify the statement, that is, persons—

(a) who are or have been officers of the company;

(b) who have taken part in the formation of the company at any time within one year before the date of the receiver's appointment;

(c) who are in the employment of the company or have been in the employment of the company within the said year, and are in the opinion of the receiver capable of giving the information required;

(d) who are or have been within the said year officers of or in the employment of a company which is, or within the said year was, an officer of the company to which the statement relates.

(3) Any person making the statement and affidavit shall be allowed, and shall be paid by the receiver (or his successor) out of his receipts, such costs and expenses incurred in and about the preparation and making of the statement and affidavit as the receiver (or his successor) may consider reasonable, subject to an appeal to the court.

(4) Where the receiver is appointed under the powers contained in any instrument, this section shall have effect with the substitution for references to an affidavit of references to a statutory declaration; and in any other case references to the court shall be taken to refer to the court by which the receiver was appointed.

(5) If any person without reasonable excuse makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding £100.

(6) References in this section to the receiver's successor shall include a continuing receiver.

Delivery to registrar of accounts of receivers.

321. —(1) Except where subsection (2) of section 319 applies, every receiver of the property of a company shall, within one month after the expiration of the period of 6 months from the date of his appointment and of every subsequent period of 6 months, and within one month after he ceases to act as receiver, deliver to the registrar of companies for registration an abstract in the prescribed form showing the assets of the company of which he has taken possession since his appointment, their estimated value, the proceeds of sale of any such assets since his appointment, his receipts and his payments during that period of 6 months or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amounts of his receipts and of his payments during all the preceding periods since his appointment.

(2) Every receiver who makes default in complying with this section shall be liable to a fine not exceeding £100.

Enforcement of duty of receiver to make returns.

322. —(1) If any receiver of the property of a company—

(a) having made default in filing, delivering or making any return, account or other document, or in giving any notice, which a receiver is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so; or

(b) having been appointed under the powers contained in any instrument, has, after being required at any time by the liquidator of the company to do so, failed to render proper accounts of his receipts and payments and to vouch the same and to pay over to the liquidator the amount properly payable to him;

the court may, on an application made for the purpose, make an order directing the receiver to make good the default within such time as may be specified in the order.

(2) In the case of any such default as is mentioned in paragraph (a) of subsection (1), an application for the purposes of this section may be made by any member or creditor of the company or by the registrar of companies, and in the case of any such default as is mentioned in paragraph (b) of that subsection, the application shall be made by the liquidator, and in either case the order may provide that all costs of and incidental to the application shall be borne by the receiver.

(3) Nothing in this section shall be taken to prejudice the operation of any enactments imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).

Construction of references to receiver.

323. —It is hereby declared that, unless the contrary intention appears—

(a) any reference in this Act to a receiver of the property of a company includes a reference to a receiver and manager of the property of a company and to a manager of the property of a company and includes a reference to a receiver or to a receiver and manager or to a manager, of part only of that property, and to a receiver only of the income arising from that property or from part thereof; and

(b) any reference in this Act to the appointment of a receiver under powers contained in any instrument includes a reference to an appointment made under powers which, by virtue of any enactment, are implied in and have effect as if contained in an instrument.