TMI Blog1954 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ence filed on behalf of the bank, the bank did not become aware of the petition before May 22, 1952, when the manager of the branch saw a reference to it in Stabbs' Gazette: that is to say, no one on behalf of the bank became aware of the presentation of the petition until after the payment into the bank of the sum of 1,308 6s. 1od. to which I have referred. On June 23, 1952, the company was ordered to be wound up. On August 6, 1952, a summons was issued by the liquidator claiming repayment by the bank of the sum of 1,308 6s. 1od. On January 27, 1954, the order was made by the registrar which comes before me under appeal. He ordered that the bank should repay to the liquidator the sum of 803 11s. od., that being the amount standing to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Bankruptcy Act, that would be a very strong reason for my validating it here. That is what Lord Cairns means in Ex parte Pearson, In re Wiltshire Iron Co. [1869] 3 Ch. App. 443 " With that statement I respectfully entirely agree. Vaughan Williams J. continued: "The cases on section 153" which was the corresponding section to section 227 "are an adoption by the court of the principle of the protective sections in bankruptcy. It would be very unfortunate if the principles of administration in bankruptcy and in the winding up of companies were not as far as possible the same." I have some difficulty in following the reasoning in those two sentences because the protective section in the present Bankruptcy Act, 1914, section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ienation and dissipation of the property of a company in extremis. But where a company actually trading, which it is the interest of everyone to preserve, and ultimately to sell, as a going concern, is made the object of a winding up petition, which may fail or may succeed, if it were to be supposed that transactions in the ordinary course of its current trade, bona fide entered into and completed, would be avoided, and would not, in the discretion given to the court, be maintained, the result would be that the presentation of a petition, groundless or well-founded, would, ipso facto, paralyse the trade of the company, and great injury, without any counter-balance of advantage, would be done to those interested in the assets of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilarity. It is true that only part of the overdraft here was applied in the payment of wages, but it is clear from the evidence, and to my mind it is the only possible inference from the facts, that the accommodation arranged was arranged for a limited period for the express purpose of enabling the company to continue to carry on its business. Therefore, to use the language of Romer J., it was a transaction for the benefit of and in the interests of the company. In the case before Vaisey J., In re Steane's ( Bournemouth ) Ltd. [1949] WN 490 a debenture was issued to secure moneys which were advanced for the purpose, as stated by Vaisey J. in his judgment, of keeping the company going or of keeping things going generally. Those thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to him, on the condition that he continued to supply the company with goods for a cash payment. The 178 was paid after the presentation of the petition, and also a sum of 13 for goods supplied. The winding up order was subsequently made, and the payment of 13 was allowed, but the 175 was ordered to be repaid- Chitty J. in his judgment states the case as put forward on behalf of the creditors in this way LJ Ch. 119, 120 : "The argument of the respondents is a somewhat strange one. They say that the part payment of their debt was a condition of their supplying goods, and that they are therefore entitled to treat the transaction as a new and complete transaction." As the judge makes clear, that was the case of the creditor. Small wonder ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
