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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Alliance Heritable Security Co. and Another v. The Heritable Property Trust (Ltd) [1886] ScotLR 24_33 (2 November 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/24SLR0033.html Cite as: [1886] ScotLR 24_33, [1886] SLR 24_33 |
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Page: 33↓
Procedure where a creditor of a limited company petitioned for a winding-up order, and before the induciœ expired the Registrar of Companies had struck it off the register.
The creditor of a company presented a petition to
Page: 34↓
the Court for the winding-up of the company. Three days after the petition was presented the Registrar of Joint-Stock Companies struckit off the register as a company “not carrying on business or in operation,” in terms of section 7 of the Companies Act 1880. That section provides that where the Registrar has reasonable cause to believe that a company is not carrying on business or in operation he shall, after certain demands for information, and after certain notices in the Gazette and to the company itself, unless cause be shown to the contrary, strike it off the register, and publish notice thereof in the Gazette, “and on the publication in the Gazette of such last-mentioned notice the company whose name is so struck off shall be dissolved: provided that the liability (if any) of the directors, managing officers, and members of the company shall continue, and may be enforced, as if the company had not been dissolved.” By sub-section (5) of the same section, “if the company or any member feel aggrieved at the name being so struck off, ‘the company or member’ may apply to the Court in which the company is liable to be wound up, and such Court may order the name to be restored to the register, and thereupon the company ‘shall be deemed to have continued in existence as if the name thereof had never been struck off.’”
On the petition again appearing in the Single Bills, counsel for petitioner stated that no answers were lodged, but that the Registrar had struck the company off, as above stated; that it could not be restored except by the application of the “company” or a “member” (sub-sec. (5), supra); that as a public company cannot be sequestrated ( Standard, &c., Company v. Dunblane, &c., Dec. 12, 1884, 12 R. 328), the petitioner, as a creditor, had no remedy except a winding-up order, to which he submitted he was now entitled as the company had been ostensibly an existing company when he presented the petition, and no application might ever be made to restore it to the register.
The Court granted the petition and appointed a liquidator.
Counsel for Petitioner— Alison. Agent— T. F. Weir, S.S.C.
