Insolvency Act

Act 3 of 2009


Mauritius

Insolvency Act

Act 3 of 2009

  • Commenced on 1 June 2009
  • [This is the version of this document at 30 June 2017.]

Part I – Preliminary

1. Short title

This Act may be cited as the Insolvency Act.

2. Interpretation

(1)In this Act—"adjudication" has the meaning assigned to it by section 4;"administrator" means an administrator appointed under Sub-part IV of Part III;"assetless company" means a company in liquidation that has insuffi­cient assets to meet the likely costs of any liquidator and has no reasona­ble prospect of paying any dividend to creditors;"auditor" means an auditor licensed under the Financial Reporting Act;"bank" means a bank licensed under the Banking Act;"bankrupt" means an individual who has been adjudicated bankrupt;"bankruptcy notice" means a notice referred to in section 6;"bankruptcy order" means a bankruptcy order made against a debtor;"charge"—(a)means a right or interest in relation to property owned by a debtor, by virtue of which a creditor of the debtor is entitled to claim payment in priority to other creditors; and(b)includes—(i)a mortgage or hypotheque conventionelle;(ii)a fixed or floating charge made under articles 2202 to 2202-55 of the Code Civil Mauricien;(iii)a gage;(iv)a deposit of a share or debenture certificate made under articles 2129-1 to 2129-6 of the Code Civil Mauricien;(v)a pledge of shares or debentures;(vi)a charge on a ship or aircraft;(vii)a nantissement; and(viii)any attachment on the proceeds to be paid by the Sugar Syndicate; but(c)does not include—(i)a hire purchase agreement; or(ii)a charge under a charging order issued by a Court in favour of a judgment creditor;"chargeholder" means the holder of a charge;"commencement of winding up" has the meaning assigned to it by section 101;"Companies Liquidation Account" means the account referred to in section 164;"Companies Supervisory Committee" means the Companies Supervi­sory Committee established under section 295;"company" has the same meaning as in the Companies Act;"Companies Act" means the Companies Act;"composition" has the meaning assigned to it by section 69;"Court" means the Bankruptcy Division of the Supreme Court;"creditor" includes a person entitled to enforce a final judgment or a fi­nal order;"date of adjudication" has the meaning assigned to it by section 21;"depart from Mauritius" includes—(a)attempt or prepare to depart; and(b)fail to return;"designated country", for the purposes of section 99, means a country which, in its own law, contains a provision similar to section 99, and which is designated as such by the Minister by public notice;"director", in relation to a company, has the same meaning as in the Companies Act;"Director" means the Director of the Insolvency Service appointed un­der section 370;"document"—(a)means a document in any form; and(b)includes—(i)any writing on any material;(ii)a book, graph or drawing;(iii)information recorded or stored by any electronic or other technological means and capable, with or without the aid of equipment, of being reproduced;"entitled person", in relation to section 169(2), means any person on whom the constitution of the company confers the rights and powers of a shareholder;"final order" includes an arbitration award by which any Court has au­thorised the enforcement of the award;"Financial Services Commission" means the Financial Services Com­mission set up under the Financial Services Act;"gage" means—(a)a gage under article 2073 of the Code Civil Mauricien;(b)a gage sans déplacement on vehicles under article 2108 of the Code Civil Mauricien;(c)a gage sans déplacement on equipment under article 2125 of the Code Civil Mauricien;(d)a gage spécial au profit des banques under article 2129-6 of the Code Civil Mauricien;(e)a bank's special privilege under article 2150-3 of the Code Civil Mauricien;(f)a right of set-off provided for by section 309; and(g)a debt secured by gage under article 2150-3 of the Code Civil Mauricien;"goods" means movable property of every kind;"Insolvency Practitioner" means a person who is appointed under this Act to be and holds office as a liquidator (other than the Official Re­ceiver), receiver, manager or administrator;"Insolvency Service" means the Insolvency Service set up under section 369;"Insolvency Surplus Account" means an account referred to in section 336;"liquidation", in relation to a company, means the winding up of the company;"liquidator" means a person appointed as such under Part III;"Minister" means the Minister to whom responsibility for the subject of finance is assigned;"notice" or "notification in writing" includes notice given by facsimile or by electronic mail or by telex or other electronic means where evidence is provided that the notice has been sent;"officer", in relation to a company, means a director or any other per­son involved in the management of the company;"Official Receiver" means the Official Receiver appointed pursuant to section 371;"ordinary resolution" means a resolution of creditors passed in accord­ance with paragraph 5(1) of the First Schedule;"partnership" means civil or commercial partnership, a société not reg­istered under an enactment or a société de fait;"private pension scheme" has the same meaning as in the Private Pen­sion Schemes Act;"prohibition order" means an order made under section 176, 210 or 286;"property" means property of every kind, whether tangible or intangi­ble, movable or immovable, corporeal or incorporeal, and includes rights, interest and claims of every kind in relation to property however they arise;"proposal" has the meaning assigned to it by section 78;"provable debt" has the meaning assigned to it by section 305;"provisional trustee" means a person appointed as such under section 80;"public notice" means a notice that is given by publishing the notice(a)in the Gazette; and(b)in 2 daily newspapers in wide circulation in Mauritius;"qualified auditor" has the same meaning as in the Companies Act;"receiver"—(a)means a person appointed to take possession of property in re­ceivership and deal with it as directed by the Court or the in­strument of appointment; and(b)includes a person appointed as receiver and manager;"Registrar" means the Registrar of the Court;"Registrar-General"—(a)means the Registrar-General appointed under the Registrar-General Act; and(b)includes the authorised officer under the Registration and Tran­scription of Deeds and Inscription of Mortgages, Privileges and Charges (Rodrigues) Act;"Registrar of Companies" means the Registrar of Companies appointed under the Companies Act;"related company" has the same meaning as in the Companies Act;"relative", in relation to a person, means—(a)his parent, spouse, child, brother or sister;(b)the parent, child, brother or sister of his spouse; or(c)a nominee or trustee of a relative;"remuneration" has the same meaning as in the Employment Rights Act;"secured creditor"—(a)means a person entitled to a charge on or over property owned by a debtor; and(b)includes the holder of a gage;"special manager" means a person appointed under section 128;"special resolution" means a resolution of creditors passed in accord­ance with paragraph 5(2) of the First Schedule;"spouse", in relation to a person, includes a person with whom that person has a relationship in the nature of marriage;"statutory demand" has the meaning assigned to it by section 180;"summary instalment order" has the meaning assigned to it by section 87;"supervisor" means a person appointed as such under section 89;"surplus assets" means the assets of a company remaining after the payment of creditors' claims and available for distribution before the re­moval of its name from the register of companies;"trustee" means a person appointed under section 79;"unregistered corporation" means a partnership or association existing in Mauritius or elsewhere, or a company incorporated outside Mauritius;"watershed meeting" means the creditors' meeting called by the ad­ministrator to decide the future of a company and, in particular, whether the company and the creditors should execute a deed of company ar­rangement.
(2)In this Act, a reference to a person by whom or in whose interest a receiver is appointed includes a reference to an assignee of the rights and interests under an agreement by or under which a receiver is appointed.
(3)Where there is time before which, or a period during which, an act for any purpose may or is required to be done, and this Act prevents the act from being done in time, then the time or period in question is extended by the period during which this Act prevents the act from being done in time.
[S. 2 amended by s. 28 (a) of Act 9 of 2015 w.e.f. 14 May 2015.]

3. Application of Act

This Act shall bind the State.

Part II – Bankruptcy and alternatives

I – Bankruptcy process

Section A — Adjudication

4. Adjudication

(1)A debtor is adjudicated bankrupt where—
(a)a creditor of the debtor petitions the Court for a bankruptcy order; or
(b)the debtor petitions the Court for a bankruptcy order,
and the Court makes the bankruptcy order.
(2)
(a)The Court shall not make a bankruptcy order on a creditor's peti­tion unless one of the following grounds of adjudication is established to the satisfaction of the Court
(i)failure to comply with a bankruptcy notice;
(ii)departure from Mauritius with intent to defeat or delay a credi­tor;
(iii)notification in writing by the debtor to a creditor that he has suspended, or proposes to suspend, payment of his debts; or
(iv)admission to creditors that the debtor is insolvent.
(b)There shall be an admission for the purposes of paragraph (a)(iv) where the debtor admits at a meeting of creditors that he is insolvent and—
(i)a majority in number and value of the creditors present at the meeting require the debtor to file an application for adjudication; or
(ii)the debtor agrees to file an application for adjudication and does not do so within 2 working days after the meeting.
(3)The Court shall not make a bankruptcy order on the petition of a se­cured creditor unless the creditor has established that the amount of the debt exceeds the value of the security claimed by the creditor by at least 50,000 rupees.
(4)A petition under this section may not be withdrawn except with leave of the Court on such terms as it may determine.

5. Creditor's petition

(1)A person referred to in subsection (2) may petition the Court for a bankruptcy order where—
(a)the debtor owes the creditor 50,000 rupees or more or, where 2 or more creditors join in the application, the debtor owes a total of 50,000 rupees or more to those creditors between them;
(b)one of the grounds for adjudication referred to in section 4 is established to the satisfaction of the Court;
(c)the debt is a specific sum (une somme certaine); and
(d)the debt is payable either immediately or at some certain future time.
(2)
(a)Subject to paragraph (b), a petition for a bankruptcy order may be made by—
(i)a creditor;
(ii)creditors jointly where there are 2 or more creditors; or
(iii)the trustee, provisional trustee or supervisor of a debtor.
(b)A secured creditor may petition the Court for a bankruptcy order where—
(i)the petition contains a statement that he is willing, in the event of a bankruptcy order being made, to give up his security for the benefit of all the bankrupt's creditors; or
(ii)the petition is expressed not to be made in respect of the se­cured part of the debt and contains a statement by that person of the estimated value at the date of the petition of the security for the secured part of the debt.
(3)A debtor against whom a bankruptcy order may be made shall—
(a)be domiciled in Mauritius; and
(b)
(i)be present in Mauritius on the day on which a petition for a bankruptcy order is presented; or
(ii)have, at any time in the period of 3 years ending with that day—
(A)been ordinarily resident, or had a place of residence, in Mauritius; or
(B)carried on business in Mauritius.
(4)For the purposes of subsection (3)(b)(ii)(B), "carrying on business" includes—
(a)the carrying on of business by a partnership of which the debtor is a member; and
(b)the carrying on of business by an agent or manager for the debtor or for such partnership.
(5)An application by a creditor for a bankruptcy order shall—
(a)be verified by affidavit of the creditor or some other person hav­ing knowledge of the facts;
(b)be served on the debtor in the prescribed manner; and
(c)call on the debtor to show cause at the hearing of the applica­tion as to why the debtor should not be made bankrupt.

6. Bankruptcy notice

(1)A bankruptcy notice shall—
(a)require the debtor, in relation to the judgment debt or the sum ordered to be paid under a final order or the amount otherwise claimed to be owing—
(i)to pay the amount owing, including any interest to the date of payment of a debt that carries interest, plus costs;
(ii)to give security for the amount owing that satisfies the creditor or the Court; or
(iii)to compromise the amount owing on terms that satisfy the Court or the creditor;
(b)state what are the consequences if the debtor does not comply with the bankruptcy notice; and
(c)be served on the debtor in Mauritius or, with the Court's permis­sion, outside Mauritius.
(2)The bankruptcy notice may name an agent to act on behalf of the creditor insofar as the notice requires—
(a)any payment to be made to the creditor; or
(b)any other step to be taken that involves the creditor.

7. Overstatement in bankruptcy notice

(1)Overstatement in a bankruptcy notice of the amount actually owing by the debtor shall not invalidate the notice, unless—
(a)the debtor notifies the creditor in writing that he disputes the validity of the notice because it overstates the amount actually owing; and
(b)the debtor makes that notification within the time specified in the notice for the debtor to comply with the notice.
(2)A debtor complies with a notice that overstates the amount actually owing by—
(a)taking steps that would have been in compliance with the notice had it stated the correct amount owing such as by paying the creditor the correct amount owing plus costs; and
(b)taking those steps within the time specified in the notice for the debtor to comply.

8. Failure to comply with bankruptcy notice

(1)There shall be a failure to comply with a bankruptcy notice where the requirements of subsection (2) or (3) are satisfied.
(2)The requirements of this subsection are that—
(a)a creditor has obtained a final judgment or a final order against the debtor for any amount;
(b)execution of the judgment or order has not been stayed by a Court;
(c)the debtor has, within 42 days before the date of the petition for a bankruptcy order, been served with a bankruptcy notice; and
(d)the debtor has not, within the time limit specified in subsection (4),—
(i)complied with the requirements of the notice; or
(ii)satisfied the Court that he has a cross-claim against the creditor.
(3)The requirements of this subsection are that—
(a)the debtor is indebted to the creditor in relation to a provable debt;
(b)the debtor has, within 42 days before the date of the petition for a bankruptcy order, been served with a bankruptcy notice;
(c)the debtor has not, within the time limit specified in subsection (4)—
(i)complied with the requirements of the notice; or
(ii)satisfied the Court that the debtor has a cross-claim against the creditor; and
(d)the bankruptcy notice informs the debtor that if the debtor dis­putes the debt or claims that any indebtedness on the part of the debtor to the creditor is less than 50,000 rupees, the debtor may appear before the Court in opposition to any petition filed by the creditor to have the debtor adjudicated bankrupt and pro­vide a cause that—
(i)he does not owe a debt to the creditor; or
(ii)that he does owe a debt to the creditor, but the debt is less than 50,000 rupees.
(4)The time limit referred to in subsection (2)(d) and subsection (3)(c) is—
(a)where the debtor is served with the bankruptcy notice in Mauri­tius, 14 days after service; or
(b)where the debtor is served with the bankruptcy notice outside Mauritius, the time specified in the order of the Court permitting service outside Mauritius.
(5)In this section,—
(a)a creditor who has obtained a final judgment or a final order in­cludes a person who is for the time being entitled to enforce a final judgment or final order;
(b)where a Court has given permission for enforcing an arbitration award that the debtor pay money to the creditor
(i)"final order" includes the arbitration award; and
(ii)"proceedings" includes the arbitration proceedings in which the award was made;
(c)a "cross-claim" means a counterclaim, set-off or cross-demand that—
(i)is equal to, or greater than, the judgment debt or the amount that the debtor has been ordered to pay; and
(ii)the debtor could not use as a defence in the action or pro­ceedings in which the judgment or the order, as the case may be, was obtained.

9. Adjournment of petition or refusal to adjudicate

(1)The Court may, at its discretion, stay or adjourn the hearing of a peti­tion conditionally or unconditionally—
(a)for obtaining further evidence;
(b)to direct the Director to prepare a report under section 17 on whether the debtor should make a proposal or be placed under a summary instalment order; or
(c)for any other just cause.
(2)The Court may, at its discretion, refuse to adjudicate the debtor bank­rupt where—
(a)the creditor has not established the requirements set out in section 4 or 5;
(b)the creditor has not established that the debtor has been served with the bankruptcy notice;
(c)the debtor satisfies the Court that he is able and willing to pay his debts; or
(d)it is just and equitable or there is other sufficient cause that the Court does not make a bankruptcy order.

10. Judgment under appeal

Where the creditor's petition for a bankruptcy order relies on the ground that the debtor failed to comply with a bankruptcy notice, and the debtor has appealed against the judgment or order underlying the bankruptcy notice or the judgment for non-payment of trust money, as the case may be, and the appeal is still to be determined, the Court may—
(a)stay the creditor's petition for a bankruptcy order; or
(b)refuse the petition.

11. Underlying debt not determined

(1)This section applies where the debtor appears in opposition to a creditor's petition and avers that—
(a)he does not owe a debt to the creditor; or
(b)he owes a debt to the creditor, which is less than 50,000 rupees.
(2)The Court may, instead of refusing the petition, stay the petition so that the question of whether the debt is owed, or how much of the debt is owed, can be resolved at a trial.
(3)Where the petition is based on the grounds set out in section 8(3), the Court shall have jurisdiction for the trial of any question in relation to the existence or amount of the debt.
(4)Where the petition is made on any ground other than the grounds set out in section 8(3), the trial in relation to a debt of less than 500,000 ru­pees shall, unless the Court orders otherwise, be held in the Intermediate Court.
(5)As a condition of staying the petition, the Court may require the debtor to give security to the creditor for any debt that may be established as owing by the debtor to the creditor, and for the costs of establishing the debt.

12. Court's power where more than one petition or more than one debtor

(1)Where there is more than one petition for a bankruptcy order, and one petition has been stayed or adjourned by the Court, the Court may, if there is a good reason, make a bankruptcy order on the application that has not been stayed or adjourned.
(2)Where the Court makes a bankruptcy order under subsection (1), the Court shall dismiss the petition that has been stayed or adjourned on terms that the Court thinks appropriate.
(3)Where a creditor's petition for a bankruptcy order relates to more than one debtor, the Court may refuse to make an order in relation to one or more of the debtors without affecting the petition in relation to the remaining debtor or debtors.

13. Order on disposition of property or proposal or summary instalment order

(1)This section applies where the debtor
(a)has made a disposition of all, or substantially all, of his property to a trustee for the benefit of his creditors;
(b)has made a proposal; or
(c)has applied for a summary instalment order.
(2)The debtor or the trustee for the debtor's creditors or any creditor may apply to the Court for an order under this section.
(3)On the hearing of the application, the Court may—
(a)order that the disposition or proposal or summary instalment or­der is not a ground for making a bankruptcy order;
(b)stay or refuse the petition for a bankruptcy order;
(c)order that any other petition for a bankruptcy order shall not be filed;
(d)make any order as to costs that the Court thinks appropriate; or
(e)where it orders that costs shall be paid to the creditor who has petitioned for the bankruptcy order, order that the costs shall be paid out of the debtor's estate.

14. Substitution of creditor

(1)The Court may substitute another creditor for the creditor making the petition for a bankruptcy order, where—
(a)the creditor making the petition has not proceeded with due dili­gence or at the hearing of the application offers no evidence; and
(b)the debtor owes the other creditor 50,000 rupees or more.
(2)The other creditor shall, in that case, file another petition for a bank­ruptcy order, but may rely on the grounds of adjudication to which the first petition related.

15. Debtor's petition

(1)Subject to subsection (2), a debtor may file a petition with the Court to have himself adjudicated bankrupt on the ground that he is unable to pay his debts where he has combined debts of 50,000 rupees or more.
(2)The Court shall not receive for filing a petition by a debtor for a bank­ruptcy order unless he also files with the Court a statement of his affairs in the prescribed form which is not, in the Court's opinion, incorrect or incom­plete.
(3)A debtor's petition shall not after presentation be withdrawn without leave of the Court.

16. Order on debtor's petition

(1)Where the grounds set out in section 15(1) are established to the satisfaction of the Court and the requirements of section 15 (2) are complied with, the Court shall make a bankruptcy order against the debtor unless the Court is of the opinion that it would be appropriate in the circumstances to direct the Director to prepare a report under section 17 on whether the debtor should make a proposal or be placed under a summary instalment or­der, in which case the Court shall adjourn the application.
(2)A bankruptcy order on a debtor's petition shall have the same conse­quences as a bankruptcy order made on a creditor's petition.

17. Report of Insolvency Service

(1)Where the Court under section 9(1)(b) or 16(1) directs the Director to prepare a report, the Director shall within 14 days submit to the Court a report on whether the debtor is willing to enter into a proposal or a summary instalment order.
(2)A report which states that the debtor is willing to enter into a pro­posal shall state—
(a)whether, in the opinion of the Director, a meeting of the debtor's creditors should be summoned to consider the proposal; and
(b)where, in the Director's opinion, such a meeting should be sum­moned, the date on which, and time and place at which, he sug­gests that the meeting should be held.
(3)On considering a report under this section, the Court may—
(a)without any application, make an order for the appointment of the Official Receiver as Interim Receiver under section 20 where it feels that it is appropriate to do so for the purpose of facilitat­ing the consideration and implementation of the debtor's pro­posal; or
(b)where it feels it would be inappropriate to make such an order, make a bankruptcy order.
(4)An order made under subsection (3)(a) ceases to have effect at the end of such period as the Court may specify for the purpose of enabling the debtor's proposal to be considered by his creditors.
(5)Where it has been reported to the Court under this section that a meeting of the debtor's creditors should be summoned, the Director shall, unless the Court otherwise directs, summon the meeting for the time, date and place suggested in his report.

18. Debtors' joint petition

(1)Two or more debtors, who are carrying on a business as partners, may file a joint petition.
(2)The debtors are automatically adjudicated bankrupt separately and jointly when the petition is filed.

19. Summary administration

(1)Where, on the hearing of a debtor's petition, the Court makes a bank­ruptcy order and the conditions laid down under subsection (2) are satisfied, the Court shall, if it appears to be appropriate to do so, issue a certificate for the summary administration of the bankrupt's estate.
(2)The circumstances in which a certificate for summary administration may be issued are that—
(a)the aggregate amount of the bankruptcy debts so far unsecured would be less than 500,000 rupees (called "the minimum amount"); and
(b)within the period of 5 years ending with the filing of the petition, the debtor has neither been adjudicated bankrupt nor made a composition with his creditors in satisfaction of his debts or a proposal.
(3)The Court may revoke a certificate issued under this section where it appears to it that, on any grounds existing at the time the certificate was issued, the certificate ought not to have been issued.
(4)Where a certificate for summary administration is issued—
(a)the Official Receiver may dispense with the first meeting of creditors provided for in section 26;
(b)no fee shall be allowed to any law practitioner except on the cer­tificate of the Court that the presence of counsel or attorney was necessary; and
(c)the period after which the bankrupt is automatically discharged shall be 2 years.

Section B — Interim Receiver

20. Appointment of Official Receiver as Interim Receiver

(1)Where a creditor's petition for a bankruptcy order has been filed, a creditor of the debtor may apply to the Court for an order appointing the Official Receiver as Interim Receiver of all or part of the debtor's property.
(2)The Court may make an order under subsection (1) at any time before it makes a bankruptcy order.
(3)As part of the order or, on the application of a creditor or the Official Receiver, subsequently, the Court may authorise the Official Receiver to—
(a)take possession of any property;
(b)sell any perishable property or property that is likely to fall rap­idly in value;
(c)control the debtor's business or property as directed by the Court; or
(d)exercise, in relation to the debtor, any of the powers vested in him by section 54 in relation to a bankrupt;
(4)An order for the Official Receiver's control of the debtor's business must be confined to what is necessary, in the Court's opinion, for conserving the debtor's property.
(5)
(a)The appointment of the Official Receiver as Interim Receiver of the debtor's property shall be advertised by him in such manner as may be prescribed.
(b)A creditor of the debtor shall not issue any execution process against the property of the debtor after the appointment of the Official Re­ceiver as Interim Receiver has been advertised.
(c)A creditor shall not continue an execution process already issued before the advertisement.
(d)A creditor or any other person interested may apply to the Court for an order allowing the issue or continuation of an execution process, and the Court may make an order on terms that it thinks appropriate.
(e)Where execution process is stayed under this section, sections 57 and 58 shall apply as if a bankruptcy order had been made against the debtor.

Section C — Effect of adjudication

21. Date of adjudication and disqualification of bankrupt

(1)The date of an adjudication, and the commencement of a bankruptcy, shall be the date and time when the Court made the bankruptcy order.
(2)The Court shall record on the bankruptcy order the date and time when the order was made.
(3)The Court shall notify the Official Receiver as soon as possible after an order of adjudication is made.
(4)It shall be presumed that an act was done, or a transaction entered into or effected, after the date of an adjudication, but the presumption shall not apply if the contrary is proved.
(5)Unless an adjudication is the subject of an appeal—
(a)no one may later assert that the adjudication was not valid or that a prerequisite for adjudication was absent; and
(b)the adjudication shall be binding on every person.
(6)Where a debtor is adjudged bankrupt, he shall, subject to this Act, be disqualified from being elected to any public office.
(7)Such disqualification shall be removed and shall cease when the adju­dication in bankruptcy is annulled, or when the debtor obtains his discharge with a certificate from the Court to the effect that his bankruptcy was caused by misfortune without any misconduct on his part.
(8)The Court may grant or withhold such certificate as it thinks fit, but any refusal of such certificate shall be subject to appeal.

22. Procedure following adjudication

(1)On adjudication
(a)the Official Receiver shall advertise the adjudication under sub­sections (2) and (3);
(b)the bankrupt shall file with the Official Receiver a statement of his affairs under section 25(1), if the bankrupt has not already done so;
(c)the Official Receiver may call a meeting of the bankrupt's credi­tors under section 26;
(d)proceedings to recover certain debts are stayed under section 23;
(e)execution process may not be commenced or continued after the adjudication is advertised under section 24; and
(f)the property of the bankrupt vests in the Official Receiver under section 30.
(2)Subject to subsection (3), the Official Receiver shall advertise the ad­judication of a bankrupt in the prescribed manner as soon as practicable after it has occurred.
(3)The Court may order that the Official Receiver shall not advertise the adjudication if the bankrupt has appealed against the bankruptcy order.

23. Stay of proceedings

(1)Subject to subsection (2), on adjudication, all proceedings to recover any debt provable in the bankruptcy shall be stayed.
(2)On the application of any creditor or other person interested in the bankruptcy, the Court may allow proceedings that had already begun before the date of adjudication to continue on terms that the Court thinks appropri­ate.

24. Execution process after adjudication

(1)A creditor shall not begin or continue an execution, attachment or other process and shall not have any remedy against the bankrupt's property or person, for the recovery of a debt provable in the bankruptcy, after the Official Receiver has—
(a)advertised the bankruptcy order; or
(b)given notice of the making of the bankruptcy order to the creditor.
(2)After advertisement of the adjudication or notice by the Official Re­ceiver to the creditor, a creditor shall not seize or sell any property by way of distress for rent due by the bankrupt, but he may continue with the distress procedure if it has already begun.

25. Statement of affairs

(1)After adjudication, the bankrupt shall file with the Official Receiver a statement in the prescribed form of his affairs, unless he has already filed a statement under section 15.
(2)Where no statement or, in the Official Receiver's view, no sufficient statement of affairs has been filed under section 15, the Official Receiver shall, as soon as practicable after adjudication, send to the bankrupt a notice stating—
(a)that the bankrupt shall file a statement in the prescribed form of the bankrupt's affairs; and
(b)the time when the statement shall be filed.
(3)The Official Receiver shall send the notice to the address of the bank­rupt given in the application for a bankruptcy order or the bankrupt's last known address.
(4)The bankrupt shall file his statement of affairs with the Official Re­ceiver within 14 days of the adjudication or, as the case may be, after re­ceiving the Official Receiver's notice under subsection (2).
(5)At any time after filing a statement of affairs with the Official Re­ceiver, the bankrupt may file additional or amended statements or answers.

26. Meeting of creditors

(1)Subject to section 19(4) and this section, the Official Receiver shall, after adjudication, call the first meeting of the bankrupt's creditors.
(2)The Official Receiver shall call the meeting as soon as practicable af­ter adjudication and, unless there are special circumstances, not less than 5 weeks after adjudication, by sending a notice of the time and place of the meeting by ordinary post to—
(a)the bankrupt, at the bankrupt's last known address;
(b)each creditor named in the bankrupt's statement of affairs, at the address given in the statement of affairs or at any other ad­dress that the Official Receiver believes is the creditor's address; and
(c)any other creditor known to the Official Receiver.
(3)The Official Receiver shall advertise the time and place of the meeting in such manner as may be prescribed.
(4)The First Schedule shall so far as applicable apply to the calling, hold­ing and effect of this meeting.
(5)The Official Receiver need not call a first creditors' meeting where he—
(a)decides that the meeting should not be called; or
(b)sends each creditor named in the bankrupt's statement of af­fairs, and any other creditor known to the Official Receiver, a notice that complies with subsection (7); and
(c)does not receive, within 10 working days after the Official Re­ceiver's notice was sent, written notice from a creditor requiring the Official Receiver to call the meeting.
(6)In deciding whether the meeting should not be called, the Official Re­ceiver shall consider—
(a)the bankrupt's assets and liabilities;
(b)the likely result of the bankruptcy; and
(c)any other relevant matter.
(7)The Official Receiver's notice to creditors under subsection (5)(b) shall—
(a)state that the Official Receiver considers that the first creditors' meeting should not be called;
(b)give the reasons for not calling the meeting; and
(c)state that the Official Receiver will not call the meeting unless a creditor gives the Official Receiver written notice, within 10 working days after the Official Receiver's notice was sent, re­quiring the Official Receiver to call the meeting.
(8)The Official Receiver may call subsequent meetings of creditors after the first meeting of creditors.
(9)The Official Receiver shall call a subsequent meeting if required to do so by one-quarter in number and value of the creditors who have proved their debts.
(10)The First Schedule, in so far as it is applicable, shall apply to the calling, holding and effect of subsequent meetings.
(11)A creditors' meeting and the resolutions passed at the meeting are valid even if some creditors did not receive the notice of the meeting, unless the Court orders otherwise.

27. Appointment of expert and inspection of documents

(1)A creditors' meeting may pass a resolution—
(a)appointing an expert to assist the Official Receiver in the admini­stration of the bankrupt's estate; and
(b)providing for the expert's remuneration out of the bankrupt's estate.
(2)A creditors' meeting may pass a resolution appointing a committee to assist the Official Receiver in the administration of the bankrupt's estate, and the Court may approve any remuneration of the members of the committee out of the bankrupt's estate.
(3)A creditor, or an attorney or accountant acting for that creditor, who has lodged a proof of debt may at any reasonable time inspect and take ex­tracts or copies of—
(a)the bankrupt's accounting records;
(b)the bankrupt's answers to questions;
(c)the bankrupt's statement of affairs;
(d)all proofs of debt; and
(e)the minutes of any creditors' meeting.

28. Bankrupt's death after adjudication

Where a bankrupt dies after adjudication, the bankruptcy continues in all respects as if the bankrupt were alive.

II – Bankrupt's property

Section A — Status of property

29. Bankrupt's estate

(1)Subject to subsection (2), a bankrupt's estate for the purpose of this Sub-part shall comprise—
(a)all property belonging to or vested in the bankrupt at the com­mencement of the bankruptcy; and
(b)any property which, pursuant to this Sub-part, forms part of that estate or is treated as forming part of that estate.
(2)Subsection (1) shall not apply to—
(a)such tools, books, vehicles and other items of equipment as are necessary to the bankrupt for use personally by him in his em­ployment, business or vocation up to a maximum value assessed by the Official Receiver of 100,000 rupees or such other amount as may be prescribed or agreed to by resolution of the creditors;
(b)such clothing, bedding, furniture, household equipment and pro­visions as are necessary to satisfy the basic domestic needs of the bankrupt and his family, up to a maximum value assessed by the Official Receiver of 100,000 rupees or such other amount as may be prescribed or agreed by resolution of the creditors; and
(c)property held by the bankrupt on trust for any other person.
(3)
(a)In this Sub-part, "property", in relation to a bankrupt, includes reference to any power exercisable by the bankrupt over or in respect of property in or outside Mauritius for the bankrupt's own benefit.
(b)For the purposes of this Sub-part, property which forms part of the bankrupt's estate does so subject to the rights of any person other than the bankrupt, and a secured creditor may take possession of and realise and otherwise deal with property over which he has a charge, disregarding any rights the secured creditor has given up under section 5(2)(b) and any rights which have otherwise been given up in accordance with the Second Schedule or in such manner as may be prescribed.
(4)This section shall apply to any other enactment under which any property is to be excluded from a bankrupt's estate.

30. Vesting in Official Receiver

(1)On adjudication, all the bankrupt's estate shall vest in the Official Re­ceiver.
(2)Where any property which is, or is to be, comprised in the bankrupt's estate vests in the Official Receiver, it shall so vest without any conveyance, assignment or transfer.
(3)A power exercisable over or in respect of property shall be deemed, for the purposes of this Sub-part, to vest in the person entitled to exercise it at the time of the transaction or event by virtue of which it is exercisable by that person.

31. Property acquired after adjudication

Subject to section 32, between the commencement of the bankruptcy and the discharge of the bankrupt—
(a)all property in or outside Mauritius that the bankrupt acquires or that passes to the bankrupt shall vest in the Official Receiver; and
(b)the powers that the bankrupt could have exercised in, over, or in respect of, that property for the bankrupt's own benefit shall vest in the Official Receiver.

32. Transaction in good faith and for value

(1)A transaction between the bankrupt and any other person under which, after adjudication, the bankrupt acquires property, or property passes to the bankrupt shall be valid against the Official Receiver where—
(a)the other person deals with the bankrupt in good faith and for value; and
(b)the transaction is completed without an intervention by the Offi­cial Receiver.
(2)Where the other person is the bankrupt's bank, a transaction dealing with the bankrupt for value includes—
(a)the receipt by the bank of any money, security, or negotiable instrument from the bankrupt or by the bankrupt's order or direc­tion;
(b)a payment by the bank to the bankrupt or by the bankrupt's or­der or direction; and
(c)the delivery by the bank of a security or negotiable instrument to the bankrupt or by the bankrupt's order or direction.
(3)A payment of money or delivery of property by a legal personal repre­sentative to, or direction of, the bankrupt is a transaction for value.

33. Rights under execution or attachment

(1)Where a creditor has issued execution against movable property of a debtor, or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the Official Receiver, unless he has completed the execution or attachment before adjudication and before notice of the presentation of any application for a bankruptcy or­der by or against the debtor.
(2)For the purposes of this section, an execution against goods is com­pleted by seizure and sale and an attachment of a debt is completed by re­ceipt of the debt.

34. Duties of usher as to goods seized

(1)Where movables of a debtor are taken in execution and, before their sale, notice is served on the usher that a bankruptcy order has been made against the debtor, the usher shall, on request, deliver the goods to the Offi­cial Receiver, but the costs of execution shall be a charge on the goods de­livered, and the Official Receiver may sell the goods or an adequate part thereof, for the purpose of satisfying the charge.
(2)
(a)Where movables of a debtor are sold under an execution in re­spect of a judgment for a sum exceeding 20,000 rupees, the usher shall de­duct the costs of the execution from the proceeds of the sale, and pay the balance to the cashier of the Court to which he is attached, and the cashier shall retain it for 14 days, and if within that time notice is served on him of a bankruptcy petition having been presented against or by the debtor, the cashier shall hold the proceeds on trust to pay to the Official Receiver.
(b)Where no such notice is served within such period, or where such notice having been served, the debtor is not adjudged bankrupt on such petition or on any other petition of which the cashier has notice, the cashier may deal with the proceeds as if no notice had been served on him.
(3)A person who purchases the goods in good faith under a sale by the usher shall in all cases acquire a good title against the Official Receiver.

35. Bona fide transaction without notice

Subject to Sub-part IV of Part IV, nothing in this Act shall, in the case of a bankruptcy, invalidate—
(a)any payment by the bankrupt to any of his creditors;
(b)any payment or delivery to the bankrupt;
(c)any conveyance or assignment by the bankrupt for valuable con­sideration; or
(d)any contract, dealing or transaction by or with the bankrupt for valuable consideration,
where—
(i)the payment, delivery, conveyance, assignment, contract, deal­ing, or transaction, as the case may be, takes place before adju­dication; and
(ii)the person (other than the debtor) to, by or with whom the payment, delivery, conveyance, assignment, contract, dealing, or transaction was made, executed, or entered into, has not at the time of the payment, delivery, conveyance, assignment, con­tract, dealing or transaction, notice of the presentation of an ap­plication for a bankruptcy order before that time.

36. Immovable property

(1)Any interest of the bankrupt in any immovable property shall on adju­dication vest in the Official Receiver without any conveyance, assignment or transfer.
(2)The sale of any immovable property or interest in immovable property which vests in the Official Receiver shall be effected in accordance with section 54 and the Sale of Immovable Property Act shall not apply to the sale.

37. Transfer of shares and other securities

(1)The Official Receiver may transfer the following property belonging to the bankrupt in the same way as the bankrupt could have transferred it if the bankrupt had not been adjudicated bankrupt
(a)securities in a company;
(b)securities of the Government;
(c)securities issued by a local authority;
(d)shares in ships; and
(e)any other property transferable in the records of a company, of­fice or person.
(2)A person whose act or consent is necessary for the transfer of the property must, on the Official Receiver's request, do whatever is necessary for the transfer to be completed.
(3)In the case of the transfer by the Official Receiver of securities in a company, a shareholder to whom the securities must be offered for sale un­der the constitution of the company and who agrees to purchase must pay a reasonable price for the securities, whether or not the constitution provides a procedure for fixing the price.
(4)The Official Receiver may disclaim any liability under shares owned by the bankrupt in any company by disclaiming the shares in accordance with sections 311 and 312.

38. Goods on hire purchase

(1)Where—
(a)a bankrupt purchased goods under a hire purchase agreement before adjudication; and
(b)a creditor
(i)took possession of the goods within 21 days before adjudi­cation, and after adjudication still possesses them; or
(ii)takes possession of the goods after adjudication,
the creditor shall not sell or dispose of the goods or part with possession of them (except for storage or repair), until 28 days after the date of adjudication, unless the Official Receiver consents in writing to the creditor selling or disposing or parting with possession of the goods before the expiry of that period.
(2)The Official Receiver may, notwithstanding any provision of the hire purchase agreement—
(a)within a period of 28 days from the date of adjudication, introduce a buyer for the goods and the bankrupt's indebtedness to the creditor shall be reduced to the extent of the amount paid by the buyer to the creditor for the goods; or
(b)at any time before the creditor sells or agrees to sell the goods following the expiry of that period, settle the bankrupt's obligations as debtor and retain the goods as part of the bankrupt's estate.
(3)Where—
(a)a creditor has taken possession of goods purchased under a hire purchase agreement, whether before or after the adjudication of the debtor; and
(b)the Official Receiver has not taken any action under subsection (2),
the creditor may prove in the bankruptcy for the amount that the creditor was entitled to recover from the bankrupt as debtor.
(4)Where—
(a)a bankrupt purchased goods under a hire purchase agreement before adjudication; and
(b)at the time of adjudication the creditor
(i)has not taken possession of the goods; or
(ii)has taken possession of them and has not sold or disposed of or parted with possession of them,
the creditor may assign the goods to the Official Receiver, and, if he does so, may prove in the bankruptcy for the net balance due to the creditor under the agreement.

39. Second bankruptcy

(1)Where a bankrupt is, before discharge, adjudicated bankrupt for a second time—
(a)subject to subsection (2), any property that is acquired by, or has passed to, the bankrupt since the first bankruptcy, including property acquired or that has passed since the second bank­ruptcy, shall vest in the Official Receiver in the second bank­ruptcy; and
(b)any surplus in the second bankruptcy is an asset in the estate in the first bankruptcy, and shall be paid to the Official Receiver in the first bankruptcy.
(2)The Court may, if it thinks appropriate, order that the following as­sets or their proceeds shall vest in the Official Receiver in the first bank­ruptcy—
(a)assets in the second bankruptcy that, in the Court's opinion, were acquired independently of the creditor in the second bank­ruptcy; and
(b)assets in the second bankruptcy that devolved upon the bankrupt.
(3)Where the Official Receiver receives notice that a creditor has filed an application for a second bankruptcy, he shall—
(a)hold property in his possession that has been acquired by, or passed to, the bankrupt since the first bankruptcy until the ap­plication for a second bankruptcy has been dealt with; and
(b)transfer the property and its proceeds, less any deduction for the Official Receiver's costs and expenses, to the Official Receiver in the second bankruptcy where the creditor's application results in a second bankruptcy, or if the bankrupt is automatically adjudi­cated bankrupt on his own application.

Section B — Duties of bankrupt

40. General duties of bankrupt

A bankrupt shall, to the utmost of his power, aid in the realisation of his property and the distribution of the proceeds amongst his creditors and shall—
(a)give a complete and accurate list of his property and of his credi­tors and debtors and such other information as to this property as the Official Receiver requires;
(b)attend before the Official Receiver whenever called upon to do so, and, if required to do so by the Official Receiver, verify any statement by affidavit;
(c)disclose to the Official Receiver as soon as practicable any prop­erty which may be acquired by him before his discharge and would be divisible amongst his creditors;
(d)supply to the Official Receiver such information as he may re­quire regarding his expenditure and sources of income after ad­judication;
(e)execute such power of attorney, transfer or instrument, in rela­tion to his property and the distribution of the proceeds amongst his creditors, as are required by the Official Receiver, prescribed or directed by the Court;
(f)deliver on demand any of his property that is divisible amongst his creditors and is under his possession or control to the Official Receiver;
(g)deliver on demand to the Official Receiver any property that is acquired by him before his discharge; and
(h)immediately notify the Official Receiver in writing of any change of his address, his employment or his name.

41. Financial information

(1)A bankrupt shall give the Official Receiver the information and details that are necessary to prepare a statement of the financial position of the bankrupt's estate.
(2)Where required by the Official Receiver, the bankrupt shall, within a reasonable time of adjudication, prepare and deliver to the Official Receiver full, true and detailed accounts and statements of his financial position that show details of—
(a)the bankrupt's trading and stocktaking; and
(b)the bankrupt's profit and losses during any period in the 3 years before the adjudication.
(3)For the bankrupt to prepare the accounts and statements referred to in subsection (2)—
(a)the Official Receiver shall give the bankrupt full access to the bankrupt's books and papers in the Official Receiver's possession; and
(b)where the Official Receiver thinks necessary, the bankrupt shall be assisted by an accountant at the expense of the bankrupt's estate.

Section C— Control over bankrupt

42. Contribution to payment of debts

(1)Where required by the Official Receiver, a bankrupt shall pay an amount or periodic amounts during the bankruptcy as a contribution towards payment of the bankrupt's debts on such terms and conditions as the Official Receiver may direct.
(2)Before the Official Receiver requires a bankrupt to make a payment under subsection (1), he shall—
(a)have regard to all the circumstances of the bankruptcy and the bankrupt's conduct, earning power, responsibilities and prospects; and
(b)make reasonable allowance for the maintenance of the bankrupt and his dependent relatives.
(3)The Court may, on the application of the bankrupt or any creditor
(a)vary, suspend or cancel the bankrupt's obligations to make a payment under subsection (1); or
(b)remit any arrears owing by the bankrupt.
(4)Where the bankrupt defaults in making a payment required under subsection (1), the burden shall be on the bankrupt in any proceedings aris­ing out of the default to show that the default was not wilful.

43. Bankrupt entering business

(1)An undischarged bankrupt shall not, without the consent of the Offi­cial Receiver or the Court, directly or indirectly—
(a)enter into, carry on, or take part in the management or control of any business;
(b)be employed by a relative of the bankrupt; or
(c)be employed by a company, trust, trustee, or any partnership or unincorporated association that is carrying on a business that is managed or controlled by a relative of the bankrupt.
(2)This section shall be in addition to, and not in derogation from, sec­tion 133(2) of the Companies Act.

44. Search and seizure of property

(1)Notwithstanding any other enactment, the Court may issue a search warrant to the Official Receiver where there is reason to believe that any relevant property is concealed in any premises or place.
(2)The warrant may authorise the Official Receiver, as well as any per­son required to assist him, to—
(a)enter and search any premises or place;
(b)seize and take possession of any relevant property; and
(c)where necessary, use force to enter the locality, premises or place.
(3)Where he is authorised by a warrant issued by a competent Court, the Official Receiver, as well as any other person required to assist him, may—
(a)seize any of the bankrupt's property in the custody or posses­sion of the bankrupt or of any other person;
(b)with a view to seizing the bankrupt's property
(i)break open any building or room of the bankrupt where the bankrupt is believed to be;
(ii)break open any building or receptacle of the bankrupt where the bankrupt's property is believed to be; and
(iii)seize and take possession of the bankrupt's property found in the building, room or receptacle.
(4)Where the Official Receiver is satisfied that another person is entitled to any relevant property, he may retain possession of the property for a pe­riod of 28 days from the date on which he first receives notice that another person claims to be entitled to the property, or such further period as the Court may allow.
(5)The Official Receiver may copy or extract from any relevant property any information relating to the property, conduct or dealings of the bankrupt.
(6)In this section—"relevant property" includes any document, computer, facsimile ma­chine or other electronic equipment containing information relating to the bankrupt's property, conduct or dealings.

45. Vacation of property

Notwithstanding any other enactment, the Official Receiver may require a bankrupt and any of his or her relatives to vacate any land or building that is part of the property vested in the Official Receiver under the bankruptcy, and the bankrupt shall comply with the request.

46. Right to inspect document

A bankrupt may at any convenient time inspect, and take extracts or cop­ies of—
(a)his accounting records;
(b)his answers to questions put to him by the Official Receiver;
(c)his statement of affairs;
(d)all proofs of debt;
(e)the minutes of any creditors' meeting; and
(f)the record of any examination of the bankrupt.

47. Recovery of property or release or discharge

Subject to sections 31 and 32, after adjudication, a bankrupt, and any person (other than the Official Receiver) who claims through or under the bankrupt, shall not be empowered to—
(a)recover any property that is part of the bankrupt's estate; or
(b)give a release or discharge in relation to that property.

48. Defeating beneficial interest

(1)After adjudication, a bankrupt shall not execute a power of appoint­ment, or any other power vested in the bankrupt, where the result is to de­feat or destroy any contingent or other estate or interest in any property to which the bankrupt may otherwise be entitled at any time before his dis­charge.
(2)The restriction imposed on the bankrupt by subsection (1) shall, sub­ject to sections 31 and 32, apply both before and after the bankrupt obtains a discharge.

49. Bank accounts

(1)Where a bank ascertains that a customer of the bank is an undis­charged bankrupt, it shall—
(a)as soon as possible, notify the Official Receiver of any account that the bankrupt holds with the bank; and
(b)not pay any money out of the account, except as provided under subsection (2).
(2)The bank may pay money out of the account where—
(a)the bank is authorised by an order of the Court or instructed by the Official Receiver to do so; or
(b)the bank has notified the Official Receiver that the bank holds such an account and has not, within one month of notification, received any instructions from the Official Receiver.

50. Allowance to bankrupt

(1)Notwithstanding any other enactment, the Official Receiver may make an allowance out of the property of a bankrupt to the bankrupt or any relative of the bankrupt for the support of the bankrupt and his dependent relatives.
(2)The Official Receiver may allow a bankrupt to retain, for the immedi­ate maintenance of the bankrupt and his dependent relatives, any money up to a maximum of 10,000 rupees or such sum as may be prescribed that the bankrupt has in his possession or in a bank account at the time of adjudica­tion.

51. Examination of bankrupt and others

(1)The Official Receiver may at any time, before or after a bankrupt's discharge—
(a)summon any of the persons specified in subsection (2) to appear before him, or the Court to be examined on oath; and
(b)require that person to produce and surrender to the Official Re­ceiver any document in that person's possession or control that relates to the bankrupt's property or dealings.
(2)The persons referred to in subsection (1) are—
(a)the bankrupt;
(b)the bankrupt's spouse;
(c)a person known or suspected to possess any of the bankrupt's property or any document relating to the affairs or property of the bankrupt;
(d)a person believed to owe the bankrupt money;
(e)a person believed to be able to give information regarding—
(i)the bankrupt; or
(ii)the bankrupt's trade, dealings, property, income from any source, or expenditure; and
(f)a trustee of a trust of which the bankrupt is a settlor or of which the bankrupt is or has been a trustee.
(3)An examination must be recorded in writing, and the person exam­ined must sign the written record if required to do so.
(4)Where a person summoned does not appear at the appointed time and has no reasonable excuse, the Court may—
(a)on the Official Receiver's application, by warrant, have him ar­rested and brought for examination before the Court; and
(b)where the Court thinks that his evidence was necessary for the purposes of the bankrupt's estate, order him to pay all the ex­penses arising out of his arrest and examination.
(5)A person who is summoned by the Official Receiver for examination shall be paid such expenses of attending the examination as may be pre­scribed.
(6)No person shall, without the Court's permission, publish a report of—
(a)any examination of a person summoned by the Official Receiver; or
(b)any matter arising in the course of that examination.
(7)On the Official Receiver's application, the Court may permit publica­tion of a report under the conditions that the Court imposes.
(8)Subsections (1) to (7) also apply when the Official Receiver has been appointed a receiver and manager of all or part of a debtor's property under section 20, and references in those sections to the bankrupt must be read as if they were references to the debtor.

52. Public examination of bankrupt

(1)
(a)The Court shall hold a public examination of a bankrupt where, at any time before an order for the bankrupt's discharge is made, there is filed with the Court a statement by the Official Receiver, or a copy of a creditors' ordinary resolution, requiring that the bankrupt should be publicly examined.
(b)The copy of the resolution must be certified by the Official Re­ceiver or the chairperson of the meeting at which it was passed.
(2)Every public examination shall be conducted in accordance with the Third Schedule.

53. Documents and other records

(1)The Official Receiver may, by notice in writing, require a bankrupt, the bankrupt's spouse, or any other person to deliver to him any document relating to the dealings or property of the bankrupt in that person's posses­sion or under the person's control.
(2)Subject to subsection (3), no person may, as against the Official Re­ceiver, withhold possession of, or claim a privilege or lien over—
(a)a deed or instrument that belongs to the bankrupt; or
(b)accounting records, accounts, receipts, bills, invoices, or other papers relating to the bankrupt's accounts, trade dealings or business.
(3)A person who is not the bankrupt's spouse may claim as a preferen­tial creditor under paragraph 1(3)(a)(ii) of the Fourth Schedule where the person—
(a)has performed services in connection with the bankrupt's ac­counting records or a deed or instrument belonging to the bank­rupt; and
(b)has not been paid, or has not been paid in full, for those ser­vices; and
(c)would, but for subsection (1), ordinarily have had a privilege or lien over the accounting records, deed or instrument, as the case may be.
(4)The limit to which the person may claim as a preferential creditor un­der paragraph 1(3)(a)(ii) of the Fourth Schedule is 10 per cent of the total value of the services stated in subsection (2), up to a maximum amount of 20,000 rupees.

Section D — Powers and duties of Official Receiver

54. Official Receiver's powers

(1)The Official Receiver shall have and exercise the powers set out in the Fifth Schedule.
(2)Subject to subsection (3), the Official Receiver may, on such terms as he thinks appropriate—
(a)sell the bankrupt's property by public auction or public tender to one or more persons, in such parcels or in such order as he thinks fit;
(b)buy in at an auction of the bankrupt's property;
(c)rescind or vary a contract for the sale of the bankrupt's prop­erty;
(d)for the purposes of paragraph (a), sell the whole of the bank­rupt's property to one person; or
(e)for the purposes of paragraph (a), sell the bankrupt's property in parcels and in any order.
(3)The Official Receiver may not sell any of the bankrupt's property until after the date fixed for the first creditors' meeting, except where—
(a)the property is perishable or likely to fall rapidly in value;
(b)in the Official Receiver's opinion, the sale of the property might be prejudiced by delay; or
(c)expenses are likely to be incurred by any delay, and before sell­ing, the Official Receiver consults a creditor or creditors whom the Official Receiver considers to be representative of the inter­ests of creditors.
(4)For the purposes of sale by public auction or public tender under sub­section (2)(a), the Official Receiver
(a)may instruct a licensed auctioneer to conduct the sale; and
(b)shall ensure that the sale is advertised at least twice at an inter­val of 7 days between the advertisements in 2 daily newspapers circulating widely in Mauritius and notice of the sale is given to the bankrupt in each case not less than 14 days before the date of the sale.
(5)Subject to this Act, the Official Receiver may sell the following prop­erty of the bankrupt by private contract—
(a)perishable property or property that is likely to fall rapidly in value;
(b)property that is unsold after being offered for sale by public auc­tion or public tender;
(c)property that the Official Receiver considers unnecessary or in­advisable to sell by public auction or public tender, because of its nature, situation, value or other special circumstance;
(d)property authorised by a resolution of creditors to be sold by pri­vate contract in accordance with the authority given by the creditors; and
(e)company securities, Government securities and local authority securities, if sold on a securities market operated by a securities exchange licensed under the Securities Act.
(6)The title of a purchaser of the bankrupt's property from the Official Receiver under a document that is made in the exercise of the Official Re­ceiver's power of sale under this section—
(a)cannot be challenged except on the ground of fraud; and
(b)is not affected by an absence of authority to sell, or the improper or irregular exercise of the power of sale.

55. Bank account and investment

(1)The Official Receiver shall have a bank account and pay into that ac­count all money that he receives in that capacity in such manner as may be prescribed.
(2)The Official Receiver may invest money that is not immediately re­quired to be paid out in the administration of an estate in an investment of a type approved by the Minister, and shall credit to that estate the interest or dividends that accrue on the investment.

56. Official Receiver's discretion

(1)The Official Receiver shall use his discretion in the administration of a bankrupt's property, but shall have regard to the resolutions of the creditors at creditors' meetings.
(2)The Official Receiver or a creditor may apply to the Court for direc­tions where the Official Receiver or creditor believes that a resolution of the creditors—
(a)conflicts with this Act or any other enactment; or
(b)is unjust or unfair.

III – End of bankruptcy

Section A — Discharge

57. Automatic discharge

(1)Subject to section 19(4) and this section, a bankrupt is automatically discharged from bankruptcy 3 years after adjudication, but may apply to be discharged earlier.
(2)A bankrupt shall not be automatically discharged where—
(a)the Official Receiver or a creditor has objected under subsection (4) and the objection has not been withdrawn at the end of 3 years after adjudication;
(b)the bankrupt has to be publicly examined under section 51 and that examination has not taken place; or
(c)the bankrupt is undischarged from an earlier bankruptcy.
(3)The automatic discharge of a bankrupt has the same effect as if the Court made an order for the bankrupt's discharge.
(4)The Official Receiver or, with the permission of the Court, a creditor may object to a bankrupt's automatic discharge in such manner as may be prescribed.
(5)
(a)An objection to the automatic discharge of a bankrupt may be withdrawn in such manner as may be prescribed.
(b)The bankrupt is automatically discharged on the withdrawal of an objection where—
(i)3 years have elapsed after adjudication; and
(ii)there is no other objection to the discharge that has not been withdrawn.

58. Application for discharge

(1)A bankrupt may at any time apply to the Court for an order of dis­charge, unless the Court has previously refused an application for a dis­charge, and specified the earliest date when the bankrupt may again apply.
(2)The Official Receiver shall, as soon as practicable after the expiry of 3 years from the date of adjudication, summon the bankrupt to be publicly examined by the Court concerning his discharge, and the Court shall conduct the examination where—
(a)the Official Receiver or a creditor has objected to the bankrupt's automatic discharge;
(b)the bankrupt is due for automatic discharge but is still undis­charged from an earlier bankruptcy; or
(c)the bankrupt has been required to be publicly examined under section 51 and that examination has not taken place.

59. Official Receiver's report

(1)The Official Receiver shall prepare a report and file it in the Court where—
(a)the bankrupt has applied for a discharge; or
(b)the Official Receiver has summoned the bankrupt to be exam­ined under section 58(2).
(2)The Official Receiver shall report as to—
(a)the bankrupt's affairs;
(b)the causes of the bankruptcy;
(c)the bankrupt's performance of his duties under this Act;
(d)the manner in which the bankrupt has complied with an order of the Court;
(e)the bankrupt's conduct before and after adjudication; and
(f)any other matter that would assist the Court in making a deci­sion as to the bankrupt's discharge.

60. Notice of opposition to discharge

(1)A creditor shall give notice to the Official Receiver and the bankrupt where he intends to oppose the bankrupt's discharge on a ground that is not mentioned in the Official Receiver's report.
(2)The notice shall—
(a)set out the ground for opposing the discharge; and
(b)be given within the prescribed time.

61. Grant or refusal of discharge

(1)Where the Court hears an application for discharge, or conducts the examination of the bankrupt under section 58(2), the Court may, having regard to all the circumstances of the case—
(a)immediately discharge the bankrupt;
(b)discharge the bankrupt on such conditions as it thinks appropri­ate;
(c)discharge the bankrupt but suspend the order for a period;
(d)discharge the bankrupt, with or without conditions, at a speci­fied future date; or
(e)refuse an order of discharge, in which case the Court may spec­ify the earliest date when the bankrupt may apply again for dis­charge.
(2)Where the Court discharges the bankrupt on the condition that the bankrupt consents to any judgment, and the bankrupt does consent, the Court may vary the judgment as it thinks appropriate.

62. Engaging in business after discharge

(1)The Court may, where it makes an order of discharge or at any earlier time, prohibit the bankrupt after discharge from doing any of the following acts without the Court's permission—
(a)entering into, carrying on, or taking part in the management or control of any business or class of business;
(b)being a director of, or being concerned in or taking part directly or indirectly in the management of, any company;
(c)being employed by a relative of the bankrupt; or
(d)being employed by a company, trust or trustee, or a partnership or incorporated association carrying on any business that is managed or controlled by a relative of the bankrupt.
(2)The Court may make an order under subsection (1) for a specified pe­riod or without a time limit and may at any time vary or cancel the prohibi­tion.

63. Reversal of order of discharge

(1)The Court may, on the application of the Official Receiver or a credi­tor, reverse the discharge of a bankrupt at any time before 2 years after—
(a)the discharge, in the case of an absolute discharge;
(b)the discharge takes effect, in the case of a discharge that is conditional or suspended.
(2)Where the Court reverses a discharge, the Court may then, or at any time after, make a new order of discharge, whether absolute, suspended or conditional.
(3)The Court may reverse a discharge where—
(a)the bankrupt has been given notice of the application; and
(b)the Court is satisfied that facts have been established that—
(i)were not known to the Court when it made the order of discharge; and
(ii)had the Court known of them, it would have been justified in refusing a discharge or discharging the bankrupt on con­ditions.
(4)The Court shall not reverse a discharge where the facts relied on in the application, at the time when the Court made an order discharging the bankrupt
(a)were known to the applicant; or
(b)could have been known if the applicant had inquired with rea­sonable diligence.
(5)The reversal of a discharge shall not prejudice or affect any right or remedy that any person other than the bankrupt would have had if the dis­charge had not been reversed.
(6)Any property that has been acquired by the bankrupt after discharge and that is vested in the bankrupt at the date of the reversal—
(a)shall vest in the Official Receiver subject to any encumbrance; and
(b)shall be applied by the Official Receiver to pay debts that the bankrupt has incurred since the date of discharge.

64. Conditions of discharge too onerous

(1)A bankrupt who cannot comply with any condition of his discharge may apply to the Court for an absolute discharge.
(2)The Court may discharge the bankrupt absolutely where it is satisfied that the bankrupt's inability is due to circumstances for which the bankrupt should not reasonably be held responsible.

65. Release from debts

(1)On discharge, a bankrupt is released from all debts provable in the bankruptcy except those listed in subsection (2).
(2)The bankrupt shall not be released from—
(a)a debt or liability incurred by fraud or fraudulent breach of trust to which the bankrupt was a party;
(b)a debt or liability for which the bankrupt has obtained forbear­ance through fraud to which the bankrupt was a party;
(c)a judgment debt or an amount payable for which the bankrupt is liable under section 42 or 61; or
(d)an amount payable under a maintenance order.

66. Other effects of discharge

(1)A discharge shall be conclusive evidence of the bankruptcy and of the validity of the proceedings in the bankruptcy.
(2)A discharge shall not release any person who, at the date of adjudica­tion, was—
(a)a business partner of the bankrupt;
(b)a co-trustee with the bankrupt;
(c)jointly bound or had made any contract with the bankrupt; or
(d)a surety or in the nature of surety for the bankrupt.
(3)A discharged bankrupt shall assist the Official Receiver, as required by the Court or the Official Receiver, in the realisation and distribution of the bankrupt's property that is vested in the Official Receiver.
(4)Where the Court has refused a bankrupt a discharge or discharged a bankrupt but suspended the discharge, that information shall be entered in the public register maintained under section 378.
(5)The Director and the Official Receiver may not be sued in relation to any publication made under this section in good faith and with reasonable care.

Section B — Annulment of adjudication

67. Annulment

(1)The Court may, on the application of the Official Receiver or any per­son interested, annul an adjudication where the Court
(a)considers that the bankrupt should not have been adjudicated bankrupt;
(b)is satisfied that the bankrupt's debts have been fully paid or sat­isfied;
(c)considers that the liability of the bankrupt to pay his debts should be reviewed because there has been a substantial change in the bankrupt's financial circumstances since the date of adju­dication; or
(d)has approved a composition under Section A of Sub-part IV of Part II.
(2)In the case of an application on one of the grounds specified in sub­sections (1)(a) to (c) by an applicant who is not the Official Receiver
(a)a copy of the application shall be served on the Official Receiver in the manner and within the time that the Court directs; and
(b)the Official Receiver may appear on the hearing of the applica­tion as a party to the proceedings.
(3)An adjudication shall be annulled—
(a)from the date of adjudication, in the case of an application on the ground specified in subsection (1)(a);
(b)from the date of the Court's order of annulment, in the case of an application on one of the grounds specified in subsection (1)(b) to (d).
(4)In the case of an application for annulment on the ground that the ad­judication should not have been made because of a defect in form or proce­dure, the Court may, in addition to annulling the adjudication, exercise its powers under subsection (5) to correct the defect and order that the applica­tion for adjudication be reheard.
(5)Where the Court annuls the adjudication on one of the grounds speci­fied in subsection (1)(a) to (c)—
(a)the Court may, on the Official Receiver's application, fix an amount as reasonable remuneration for the Official Receiver's services and order that it be paid, in addition to any costs that may be awarded;
(b)the Court shall make any determination under paragraph (a) promptly;
(c)the fee shall be paid into the Consolidated Fund;
(d)the Official Receiver shall not be entitled to remuneration under section 379 for those services.
(6)Where an order of annulment is made following an application by a person other than the Official Receiver, that person shall, as soon as practi­cable, notify the Official Receiver of the order and, at the same time, serve a copy of the order on the Director.
[S. 67 amended by s. 11 (a) of Act 4 of 2017 w.e.f. 20 May 2017.]

68. Effect of annulment

(1)On the annulment of an adjudication, all property of the bankrupt vested in the Official Receiver on bankruptcy and not sold or disposed of by the Official Receiver shall revest in the bankrupt without the necessity for any conveyance, transfer or assignment.
(2)Any contract, sale, disposition or payment duly made or anything du­ly done by the Official Receiver before the annulment—
(a)shall not be prejudiced or affected as to validity by the annul­ment; and
(b)shall have effect as if it had been made or done by the bankrupt while no adjudication was in force.

IV – Alternatives to bankruptcy

Section A — Composition during bankruptcy

69. Preliminary resolution

(1)The creditors of a bankrupt may accept a composition in satisfaction of the debts due to them from the bankrupt by passing a special resolution that contains the terms of the composition to be known as the preliminary resolution.
(2)If there is more than one class of creditor, the delay of one class in accepting, or the failure of one class to accept, shall not prevent any other class from accepting the composition.

70. Confirming resolution

(1)The composition shall be of no effect unless the creditors confirm the composition by a second special resolution to be known as the confirming resolution.
(2)The creditors may confirm the composition on terms that are different from the terms contained in the preliminary resolution, if the final terms are at least as favourable to the creditors as the terms set out in the preliminary resolution.
(3)The notice of the meeting to pass the confirming resolution shall—
(a)state generally the terms of the composition; and
(b)be accompanied by a report by the Official Receiver.
(4)Where the composition provides for the payment in full of all creditors whose respective debts do not exceed a certain amount, that class of credi­tors shall not be counted either in number or value for the purpose of count­ing the requisite majority of creditors for passing the confirming resolution.

71. Composition with members of partnership

(1)Where the members of a partnership have been adjudicated bankrupt, the joint creditors and each class of separate creditors may make separate compositions.
(2)In that case, the majorities of creditors required for passing the con­firming resolution are the separate majorities of each class, but otherwise the joint and separate creditors shall be counted as one body for voting.

72. Court to approve composition

(1)The Court shall approve a composition if it is to be binding.
(2)A composition approved by the Court shall bind all the creditors in respect of provable debts due to them by the bankrupt.
(3)The Court may refuse to approve a composition where it considers that—
(a)section 69 or 70 has not been complied with;
(b)the terms of the composition are not reasonable or are not calcu­lated to benefit the general body of creditors;
(c)the bankrupt is guilty of misconduct that justifies the Court in refusing, qualifying or suspending the bankrupt's discharge; or
(d)for any other reason, it should not approve the composition.
(4)The Court shall not approve a composition where it does not provide for the payment, before any other debts are paid, of those debts that have priority under Section E of Sub-part IV of Part III.
(5)The bankrupt or the Official Receiver may apply to the Court to ap­prove a composition.
(6)Notice of the application shall be given to each creditor.
(7)Before approving a composition, the Court shall—
(a)receive a report from the Official Receiver as to the terms of the composition and the bankrupt's conduct; and
(b)hear any objection by or on behalf of a creditor.
(8)Where the Court approves a composition, it may correct or supply any formal or accidental error or omission, but may not alter the substance of the composition.

73. Deed of composition

(1)As soon as practicable after the Court has approved a composition
(a)the bankrupt and the Official Receiver shall execute a deed of composition for putting it into effect; and
(b)the Official Receiver shall apply to the Court for confirmation of the deed.
(2)Where it is satisfied that the deed conforms with the composition that it has earlier approved, the Court shall, on payment to the Official Re­ceiver of such commission as may be prescribed—
(a)direct that the deed be entered and filed in the Court; and
(b)annul the adjudication.
(3)An annulment under subsection (2) shall not revest the bankrupt's property in the bankrupt in accordance with section 68.
(4)Where the Court has confirmed the deed and annulled the adjudica­tion—
(a)the deed binds all the creditors in all respects as if they had each executed the deed; and
(b)the bankrupt's property to which the deed relates vests and must be dealt with as provided in the deed.

74. Unpaid balance of debt

(1)A bankrupt who makes a composition with his creditors remains liable for the unpaid balance of a debt where—
(a)the bankrupt, by means of fraud—
(i)incurred or increased the debt; or
(ii)on or before the date of the composition, obtained forbear­ance on the debt; and
(b)the creditor who has been defrauded has not agreed to the com­position.
(2)In subsection (1)(b), a creditor does not agree to the composition merely by proving the debt and accepting payment of a distribution of the assets in the estate.

75. Deadlines for steps to approve composition and execute deed

(1)The deadlines for steps to approve the composition and execute the deed are—
(a)the confirming resolution shall be passed within one month after the preliminary resolution is passed;
(b)the Court shall approve the composition within one month after the confirming resolution is passed; and
(c)the bankrupt shall execute the deed of composition within 5 working days after the Court approves the composition or, if the Court allows the bankrupt additional time, within that time.
(2)Where any of the deadlines referred to in subsection (1) is not kept—
(a)immediately on the expiry of the deadline, the proceedings in the bankruptcy resume as if there had been no confirming resolution; and
(b)none of the periods specified in subsection (1) counts in the cal­culation of a period of time for any purpose of this Act.

76. Procedure following entry of deed

(1)The Court shall, after the deed of composition has been entered on the file of the Court
(a)endorse on the deed that it has been entered and filed in Court; and
(b)if requested by the Official Receiver, deliver the deed to the Offi­cial Receiver.
(2)The Official Receiver shall, as soon as practicable after the deed has been entered—
(a)take all steps necessary to have any vesting provided for in the deed registered or recorded in the appropriate registry or office, and then return the deed to the file of the Court; and
(b)subject to the provisions of the deed, give possession to the bankrupt or the trustee under the composition, as the case may be, of—
(i)the bankrupt's property; or
(ii)so much of the bankrupt's property as the Official Receiver possesses and that, under the composition, revests in the bankrupt or the trustee.

77. Enforcement of composition

The Court may—
(a)on the application of a person aggrieved, order that default in payment of any composition approved by the Court be remedied; or
(b)on the application of a person interested, enforce the provisions of any composition approved by the Court.

Section B — Proposal

78. Interpretation of section B

(1)In this section—"debt" means a debt that would be provable in the insolvent's bank­ruptcy;"insolvent" means a person who is not bankrupt, but who is unable to pay his debts as they become due.
(2)The debt of an insolvent is provable under this section.

79. Making of proposal

(1)An insolvent may make a proposal to creditors for the payment or satisfaction of his debts.
(2)The proposal may include an offer—
(a)to assign all or any of the insolvent's property to a trustee for the benefit of the creditors;
(b)to pay the insolvent's debts by instalments;
(c)to compromise the insolvent's debts at less than 100 cents in the rupee;
(d)to pay the insolvent's debts at some time in the future; or
(e)for any other arrangement for the satisfaction of the insolvent's debts.
(3)The proposal may include any other conditions for the benefit of the creditors and may be accompanied by a security or guarantee.
(4)The proposal shall be—
(a)in the prescribed form; and
(b)accompanied by a statement of affairs that is in the prescribed form and verified by affidavit.