ERNEST HUGH CANNING Vs. SOOBRAN PARTAP

JUDGEMENT

(1.) On 21 October 1938 Boland J. ordered that the New Dome Oil Fields Ltd. (hereinafter called "the company") should be wound up by the Supreme Court of Trinidad and Tobago under the provisions of the Companies Ordinance Chap. 180. This order was made upon a petition presented by leave of the Court by Soobran Partap and Ramessar Partap on 9 September 1938. On 9 November 1938 Manoel Joaquium de Silva, a creditor of the company who had opposed the making of the winding-up order appealed against such order, and on 23 November 1938 the Full Court of the Supreme Court of Trinidad and Tobago dismissed this appeal on the ground that it was incompetent because de Silva had intervened in the winding-up proceedings subsequent to the date of the winding-up order. On 14 November 1938 Philomena Fernandez who claimed to be a creditor of the company and as such had opposed the making of the winding-up order gave notice of appeal against such order while on 6 December 1938 Ernest Hugh Canning and Jacinto Francisco Xavier who respectively claimed to be creditors of the company and had also opposed the making of the winding-up order gave separate notices of appeal against that order. On 17 December the Full Court of the Supreme Court of Trinidad and Tobago dismissed these appeals. On 17 January 1939 Philomena Fernandez Ernest Hugh Canning and Jacinto Francisco Xavier (hereinafter called "the appellants") obtained conditional leave to appeal to His Majesty the King in Council and on 16 May 1939 final leave to appeal as aforesaid was obtained.

(2.) The material facts are as follows: The company was incorporated as a private company under the Companies Ordinance Chap. 180 on 3 May 1930. The nominal capital of the company is $100,000 of which $38,975 was stated to have been issued as paid up or credited as paid up but no information is to be found in the documents nor were counsel able to give any information at the hearing before this Board with regard to the number if any of the shares which had been issued for cash. The main object for which the company was established was to take over as a going concern the oil mining lease and operations including machinery and plant and other implements and tools used in such mining operations which were then vested in the Administrator-General of the Colony of Trinidad and Tobago as the representative of Alfred Ralph Sammy deceased who carried on business under the style of the Dome Oil Fields. The property taken over by the company included two leases dated respectively 18 February 1928 whereby certain oil petroleum mines and minerals were demised to the said Alfred Ralph Sammy for the respective terms of 21 years from 18th February 1928 subject to the payments of the rents and royalties and to the conditions and stipulations therein respectively mentioned. Each of the said leases reserved a power of re-entry if an assign of the said A. R. Sammy being a corporation should go into liquidation whether voluntary or compulsory except for the purpose of reconstruction or amalgamation. The lessors who granted the leases were Moorali Dar, the said Soobran Partap Sahoodar and Ramessar Partap. Both Moorali Dar and Sahoodar were dead before the petition for winding-up of the company was presented and at the date of such presentation Soobran Partap was the legal personal representative of each of such deceased persons. The respective properties comprised in the said leases were duly assigned to and vested in the company for all the unexpired residues of the respective terms originally created. It is admitted that after the acquisition of the leasehold properties the company was without funds to enable it to carry on the undertaking and consequently on 21 May 1930 the company borrowed $40,000 from the said de Silva.

(3.) The terms of the loan appear to have been extremely onerous, for the company gave as security therefor a specific charge upon (a) the unexpired terms under the leases acquired by it, (b) the oil boring and other machinery then affixed to the leasehold properties and (c) a debenture securing to de Silva the repayment of the $40,000 without interest and charging by way of floating security the undertaking of the company and all its assets. The fact that no interest on the $40,000 was secured by the debenture is explained by the fact that as a term of the loan the company agreed to pay de Silva a bonus by way of royalty on the oil won from the leasehold properties in addition to an annual sum of $12,000 during the residue of the respective terms created by the leases. The company also covenanted to deposit as its Bankers in the joint names of the company and de Silva a sum equal to 4 per cent. of the gross proceeds of the sale of all minerals won from the demised premises and that any moneys for the time being standing to the credit of this account should be applied from time to time at the option of de Silva in repayment to the extent required by him of the $40,000 or on account of any other moneys secured to de Silva in respect of his loan. At the same time de Silva and his assigns were appointed to be receiver or receivers of the company's business. It is plain that from the date of this loan the company was completely under the control of de Silva. He admittedly remained in the position of receiver of the company's business until the order for winding-up was made. In June 1934 there was a variation with the concurrence of de Silva of the royalties payable to the lessors under the leases of 18th February 1928, but the details of this variation are immaterial, de Silva has never since his appointment as receiver filed any abstract of his receipts and payments as prescribed by S. 95 (1) of the Companies Ordinance, Chapter 180.