Companies Act, 1990

Circumstances in which floating charge is invalid.

136.—The Principal Act is hereby amended by the substitution for section 288 of the following section—

“288.—(1) Where a company is being wound up, a floating charge on the undertaking or property of the company created within 12 months before the commencement of the winding up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid, except as to money actually advanced or paid, or the actual price or value of goods or services sold or supplied, to the company at the time of or subsequently to the creation of, and in consideration for, the charge, together with interest on that amount at the rate of 5 per cent per annum.

(2) For the purposes of subsection (1) the value of any goods or services sold or supplied by way of consideration for a floating charge is the amount in money which at the time they were sold or supplied could reasonably have been expected to be obtained for the goods or services in the ordinary course of business and on the same terms (apart from the consideration) as those on which they were sold or supplied to the company.

(3) Where a floating charge on the undertaking or property of a company is created in favour of a connected person, subsection (1) shall apply to such a charge as if the period of 12 months mentioned in that subsection were a period of 2 years.

(4) In this section ‘a connected person’ means a person who, at the time the transaction was made, was—

(a) a director of the company;

(b) a shadow director of the company;

(c) a person connected, within the meaning of section 26 (1) (a) of the Companies Act, 1990, with a director;

(d) a related company, within the meaning of section 140 of the said Act; or

(e) any trustee of, or any surety or guarantor for the debt due to, any person described in paragraph (a), (b), (c) or (d).”.