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Issues: Whether the court exercising jurisdiction in winding up proceedings has discretion to refuse an application under section 186 of the Companies Act where the contributory has an accrued legal right of set-off against the company.
Analysis: Section 186 creates a special procedure for recovery of monies due from a contributory and does not create new rights or compulsorily require the court to make an order in every case. The court may refuse to act under that section and leave the liquidator to sue in the ordinary course where continued use of the special procedure would deprive the contributory of a defence or answer available in a suit. The right of set-off is preserved by the general insolvency and liquidation framework, and section 229 imports insolvency principles into company winding up. The provision should not be read as a general deprivation of a contributory's accrued right of set-off, especially where the claim is debt against debt and not a call on shares.
Conclusion: The court has discretion to grant or reject an application under section 186, and it is not bound to make an order merely because the applicant is a contributory and the amount is due.
Ratio Decidendi: Section 186 of the Companies Act confers a discretionary, special recovery procedure and does not abrogate an accrued legal right of set-off available to a contributory in winding up proceedings.
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