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In September 2006 they raised proceedings against the defender in Paisley Sheriff Court for breach of contract.
Warrant to inhibit on the dependence was granted and an inhibition was served on the company and duly registered.
An appeal by the defender to the sheriff principal was refused.
On 18 February 2011, the bank appointed Kenneth Patullo and Paul Dounis as joint receivers under the floating charge (Mr Dounis has subsequently resigned).
Section 15 of the 1972 Act conferred wide powers on a receiver, but in terms of subsection (2)(a) those powers were exercisable subject to the rights of any person who had effectually executed diligence on all or any part of the company’s property prior to the receiver’s appointment.
Section 20(1) of the 1972 Act specified the ranking of the floating charge holder as follows: The provisions of the 1972 Act were repealed and replaced by Part XVIII of the consolidating Companies Act 1985, with sections 463(1)(a), 471(2)(a) and 476(1)(b) thereof respectively re-enacting sections 1(2)(a), 15(2)(a) and 20(1)(b) of the 1972 Act.
In 1990 SLT 681, the Lord Ordinary (Coulsfield) noted that counsel for an inhibiting creditor had not disputed the proposition advanced on behalf of the receiver that an inhibition not followed by adjudication was in the same position as an arrestment not followed by a furthcoming, and was therefore of no effect against the receiver.was concerned with interpretation of sections 15(2)(a) and 20(1)(b) of the 1972 Act whereas the present case was concerned with sections 55(3)(a) and 60(1)(b) of the 1986 Act.Technically, therefore, the decision was not binding upon me, a proposition that I understood the defender to accept under reference to case had been wrongly decided.Secondly, the Bankruptcy and Diligence etc (Scotland) Act 2007, section 154 removed, with effect from 22 April 2009, the “second” common law effect of inhibition, namely a preference in any insolvency proceedings over debts contracted by the debtor after the date of the inhibition, leaving intact the “first” common law effect, namely the prohibition of the inhibited debtor from alienating (including the granting of a security over) any part of its heritable property.(I mention in passing that the 2007 Act also abolished the diligence of adjudication for debt, but the relevant provisions are not yet in force.)1977 SC 155 concerned a competition between a floating charge holder and a creditor who had arrested funds but had not raised an action of furthcoming before the date of appointment of a receiver by the charge holder.