Insolvency Act

Bankruptcy Rules 1888

[GN 127 of 1888 (Lane II/95) – 19 July 1888] [Section 198 of Courts Act]

1. These rules may be cited as the Bankruptcy Rules 1888.

2. In these rules –

"Act" means the Insolvency Act;

"Court" and "Official Receiver" shall have the same meaning as in the Act;

"Registrar" means the officer performing the duties of Registrar of the Court.

[R. 2 amended by s. 23 of Act 29 of 1992 w.e.f. 16 July 1992.]

3.

THE Official Receiver

4. All moneys accruing from fees and costs in the bankruptcy, and all moneys received by the Official Receiver on account of a bankrupt's estate, shall be paid by the Official Receiver to the Accountant-General within 48 hours.

5. All moneys deposited by the Official Receiver with the Accountant-General on account of a bankrupt's estate shall not be withdrawn by the Official Receiver otherwise than under an order of the Court.

6. (1) The Official Receiver shall appear in person whenever he has to make motion or application to the Court.

(2) Where specially authorised by the Court to do so, he may employ attorney and counsel, and the attorney (who may be a State Attorney) and counsel shall be appointed by the Attorney-General.

[R. 6 amended by s. 23 of Act 48 of 1991 w.e.f. 12 March 1992.]

7. - 8.

COMPUTATION OF TIME

9.

COURT AND CHAMBERS

10. (1) The following matters and applications shall be heard and determined in open Court, namely –

(a) the public examination of debtors;

(b) applications to approve a composition or scheme of arrangement;

(c) applications for order of discharge or certificate of removal of disqualifications;

(d) applications for the committal of any person to prison for contempt;

(e) appeals against the rejection of a proof or application to expunge or reduce a proof;

(f) all applications under rules or petitions to show cause whether the issues raised involve questions of law or of fact.

(2) Any other matter or application may be heard and determined in Chambers, if so directed by the Judge.

PROCEEDINGS

11. Every proceeding under the Act or these rules shall be dated and entitled "In the Bankruptcy Division of the Supreme Court" with the name of the case and the number of the record.

12. Ex parte applications shall be entitled "Ex parte the applicant".

13. All proceedings of the Court shall remain on record, so as to form a complete record of each matter.

14. (1) All such records may at all reasonable times on application to the Chief Clerk, be inspected by the Official Receiver, the trustee, the debtor, or any creditor who has proved, or any person on their behalf.

(2) Office copies of such record, or parts thereof, may be delivered by the Registrar to any such person applying for the same on payment of a fee.

15. (1) The Registrar shall keep a book entitled "Record Book of Bankruptcy cases", giving the number of the record, the name of the petitioning creditor, the name of the debtor, the result of the case and such other particulars as the Court may direct.

(2) He shall also keep a book entitled "Book of filing of proofs of debt", in which he shall enter in order of date all proofs filed with him.

16. Minutes of all proceedings taken before the Court or in Chambers shall be kept by the Registrar.

PRACTICE

17. Every application to the Court, unless otherwise provided for, or the Court shall in any particular case otherwise permit, shall be by way of motion.

18. Where any party other than the applicant is affected by the motion, no order shall be made unless with the consent of such party duly shown to the Court, or on proof that notice of the intended motion has been personally served on such party.

19. The Court, if satisfied that any delay would or might cause serious mischief, may make an order ex parte on such terms as to costs, and otherwise, and subject to such undertaking if any as the Court may think just, and any party affected by such order may move to set it aside.

20. Unless the Court gives leave to the contrary, notice of motion shall be served on any party to be affected thereby not less than 2 days before the day named in the notice for hearing the motion.

21. Any party intending to move shall, previous to the public sitting of the Court, deliver to the Registrar a copy of his notice of motion.

22. In cases in which property is claimed by or from the Official Receiver or trustee, or if a debt is claimed by the Official Receiver or trustee from any debtor of the bankrupt, the application shall be by way of petition to the Court, stating clearly the nature of the application and the grounds on which it is made.

23. The judge shall at the foot of the petition make an order for the hearing of such petition, and such order with the petition shall be served on the defendant 8 clear days before the day appointed for hearing the petition, unless for special reasons the Court shortens the period for such hearing.

24. (1) The defendant to any petition shall be bound, when making a defence, to file with the Registrar a statement giving the grounds of such defence.

(2) Such statement shall be filed at least 4 days before the day fixed for hearing the petition, or within such further time as may be allowed by the Court.

25. The petitioner and the defendant shall serve on each other tenders of inspection as in ordinary cases coming before the Supreme Court.

26. All orders made by the Court shall be executed in the same manner as ordinary orders or judg­ments of the Supreme Court in similar cases.

27. All summonses, orders, warrants or other process shall be issued under the hand of the Registrar and shall be sealed.

28. It shall be lawful for the Court to order the issuing free of charge of any summons, rule, warrant or order of Court applied for by the Official Receiver, or where the Court shall consider it just.

WITNESSES

29. A subpoena for the attendance of a witness shall be issued by the Registrar at the instance of the Official Receiver, the trustee, a creditor, a debtor, or any petitioner or defendant in any matter before the Court, with or without a clause requiring the production of books or papers, and the subpoena shall not contain the names of more than 8 witnesses.

30. The Court may in any matter limit the number of witnesses to be allowed on taxation of costs, and the costs of witnesses, whether they have been examined or not, may, in the discretion of the Court, be allowed.

31. The Court may, in any matter where it shall appear necessary for the purposes of justice, appoint any of its officers or any other person to receive at any place other than the Court the examination de bene esse of any witness or person unable to attend the Court.

32. The Court may, in any matter, at any stage of the proceedings, order the attendance of any person for the purpose of producing any writing or document named in the order which the Court may think fit to be produced.

SERVICE

33. Service of a bankruptcy notice, a bankruptcy petition, or a petition under rule 22, shall be personal, and shall be made by an usher.

34. In case personal service cannot be effected, the Court may order such substituted service as shall appear fit and proper.

35. The service of all other proceedings under the Act or these rules shall be made by an usher and shall be personal, or by delivery to an inmate more than 16 years old apparently of the house in which the defendant dwells, or by delivery at the place of business of the defendant.

36. (1) In the case of a bankruptcy notice or a bankruptcy petition, where the debtor is not in Mauritius, or the Court is satisfied that personal service cannot be effected, the Court may order that copies of the notice or petition be left at the last known domicile and at the place of business of the debtor, and that another copy be posted up in some conspicuous place at the District Court House of the district in which the debtor had his domicile or his place of business.

(2) –

37. The usher effecting a service under rule 36 shall swear an affidavit to the effect that such service has been made in the prescribed manner.

BANKRUPTCY ORDER

38. Where a bankruptcy order is made the Registrar shall forward to the Official Receiver a copy of the order.

39.

STATEMENT OF AFFAIRS

40. The statement of affairs shall be in the prescribed form.

41. In the case of a partnership, the debtors shall file a statement of their partnership affairs, and each debtor shall file a statement of his separate affairs.

42. The Official Receiver, on application made by the debtor, shall furnish him with instructions for the preparation of his statement of affairs.

43.

DUTIES OF Official Receiver AS INTERIM RECEIVER

44. On receipt of a copy of the order appointing him to be interim receiver, the Official Receiver shall forthwith ascertain from the debtor if any action, suit, or other proceedings are pending against him.

45.

TAKING POSSESSION OF DEBTOR'S PROPERTY

46. Where the Official Receiver or the trustee has to take possession of the debtor's property, he shall for such purpose have the right to appoint one or more persons to take charge of the property, and shall cause an inventory to be drawn up of the property.

47. Any person so appointed by the Official Receiver or the trustee shall take an oath, to be administered by the Official Receiver or the trustee, to perform his duties faithfully.

[R. 47 amended by Act 60 of 1946.]

48. (1) It shall not be lawful for the Official Receiver or the trustee to take possession of property claimed by any third party or by the debtor's wife, separated as to property from her husband, but it shall be the duty of the Official Receiver or the trustee to make an inventory of the property, and any claim thereto shall be disposed of by the Court on the application of the claimant or of the Official Receiver or the trustee, as the case may be.

(2) Shall the Court decide against the claimant, the Official Receiver or the trustee, as the case may be, shall immediately take possession of the property.

49. (1) The Official Receiver or the trustee, as the case may be, shall make an inventory of the books, papers, and documents relating to the affairs of the bankrupt, and it shall be lawful for the Official Receiver or the trustee to employ for such time, as may be fixed by the Court, the services of one or more of the bankrupt's clerks for the drawing up of inventories, the making up of accounts due to the bankrupt and, in case of need, for the recovery of such accounts.

(2) Every clerk so employed shall receive out of the bankrupt's estate such remuneration as may be fixed by the Court.

COMPOSITION

50.

51. Where default is made in any payment under a composition or a scheme by the debtor or the trustee, no action to enforce the payment shall lie, but the remedy of any person aggrieved shall be by application to the Court.

ORDER OF ADJUDICATION

52. A copy of the order of adjudication shall be forwarded by the Registrar to the Official Receiver, and it shall be the duty of the latter to have the said copy published in the prescribed manner.

ARREST OF DEBTOR AND SEIZURE OF PROPERTY

53. - 54.

DISCHARGE OF BANKRUPT

55. A bankrupt intending to apply for his discharge under section 58 of the Act shall, not less than 15 days before the day appointed for hearing the application, give notice of the time and place of the hearing of such application to the Official Receiver and to the trustee, and also publish in the Gazette and in 2 daily newspapers a notice to the same effect.

56. An order of the Court made on an application for discharge shall be dated of the day on which it is made and shall take effect on and from the day of its date, but no such order shall be delivered out until after the expiry of the time allowed for appeal, or if an appeal is entered, until after decision of the Court of Appeal thereon.

57. Where the time for appeal has expired, or, as the case may be, where the appeal has been decided by the Court of Appeal, the order of discharge shall be published by the bankrupt in the Gazette.

DISCLAIMER OF ONEROUS PROPERTY

58. (1) A notice of disclaimer of any onerous property shall be signed by the Official Receiver or the trustee, as the case may be, and shall give a description as complete as possible of property disclaimed.

(2) Such notice shall be served by an usher.

59. In the case of a lease, the Official Receiver or the trustee shall serve the lessor with a notice of his intention to disclaim, and if the lessor does not, within 7 days after the service, give notice to the Official Receiver or the trustee that he consents to the disclaimer, the Official Receiver or the trustee shall apply to the Court for an order calling upon the lessor to show cause why the lease should not be disclaimed.

60. Where the lessor consents to the disclaimer, the Official Receiver or the trustee, after obtaining the leave of the Court, shall serve on the lessor a notice as prescribed by rule 58.

PROOF OF DEBT

61. A creditor's proof shall be verified by affidavit.

62. A secured creditor's proof shall be verified by affidavit and shall contain a full statement of the security and of the value thereof.

63. Every proof of debt shall be filed with the Registrar.

DIVIDENDS

64. (1) Every trustee having to declare a dividend shall give notice of his intention to do so to the Official Receiver and apply to the Court for an order fixing a sitting for the declaration of the dividend.

(2) Such sitting shall be fixed for a day not less than 30 days and not more than 2 months from the date of the said order.

65. Notice of an intended dividend shall, within 8 days from the date of the order of the Court, be published three times in two daily newspapers and, by the same notice, the creditors who have not yet proved their debts shall be required to do so within 7 days from the date of the notice.

66. After the expiry of the said period, the trustee shall decide on the proofs of debt, and any creditor dissatisfied with the decision of the trustee in regard to his proof, and being desirous of appealing therefrom, shall cause a notice to be served on the trustee, stating the grounds of his appeal, which notice shall be filed with the Registrar within 5 days from the date of the trustee's decision.

67. Any creditor failing to lodge his proof within the period fixed by rule 65 shall not rank for the dividend to be declared unless the proof is admitted by the Court and is lodged with the trustee before the dividend sitting or any adjournment thereof.

68. As soon as a dividend has been declared, the trustee shall publish 3 times in 2 daily newspapers a notice giving the amount of the dividend declared, and inviting the creditors entitled thereto to call at his office to receive it.

APPOINTMENT OF TRUSTEE

69.

SECURITY TO BE GIVEN BY THE TRUSTEE

70. - 71.

TRUSTEE'S ACCOUNTS AND PAYMENTS

72. The trustee shall keep his accounts in a journal or cash book, showing on the debit side all sums received by him on account of the estate under his charge, and on the credit side all sums paid on account of the estate.

73. The trustee shall also keep a book showing in detail all the accounts due to the bankrupt and the payment thereof made to him.

74. Distinct accounts shall be kept of a joint estate and of the separate estate or estates.

75.

TRUSTEE'S STATEMENT OF PROCEEDINGS

76.

REMOVAL OF TRUSTEE

77. - 78.

RELEASE OF TRUSTEE

79.

TAXATION OF COSTS

80. All costs allowed by the Court shall be taxed by the Registrar.

81. Every bill of costs that may be payable out of a bankrupt's estate shall be taxed contradictorily with the Official Receiver.

82. The attorney of the party on whose behalf the costs have been made shall give notice to the Official Receiver of the time of the taxation and shall, one clear day before the taxation, lodge his bill of costs with the Official Receiver to be examined by the latter.

APPEAL

83.

[R. 83 amended by s. 8 of Act 20 of 1993 w.e.f. 25 June 1993.]

84. Any party appealing shall be bound, within 21 days from the date of the judgment or order exclusively, to give good and valid security to such amount as may be fixed by the Court for the payment of the costs which the Supreme Court may allow to the respondent.

[R. 84 amended by s. 8 of Act 20 of 1993 w.e.f. 25 June 1993.]

85. The appeal shall be brought by notice stating fully the grounds of the appeal served within the 21 days on each respondent, and shall be filed in the Registry of the Supreme Court within 3 days of such service.

[R. 85 amended by s. 8 of Act 20 of 1993 w.e.f. 25 June 1993.]

COMMITMENTS

86. An application to commit any person for contempt shall be supported by affidavit and such other proof as the Court may require.

87. The Court shall fix a day to hear the application, and notice thereof shall be served personally on the person sought to be committed 2 days at least before the day of hearing the application, unless the Court shall, on good cause shown, direct service of the notice to be made in some other manner, in which case it shall be served with a copy of the order in the manner so directed.

88. (1) The warrant of commitment shall be issued and sealed by the Registrar and shall be executed by an usher or by the Police as the Court may direct.

(2) The party committed shall be detained in gaol for such time as shall be fixed by the Court.

SMALL BANKRUPTCIES

89. - 92.

MISCELLANEOUS

93. Non-compliance with any of these rules shall not render any proceeding void, unless the Court shall so direct, but such proceeding may be set aside, as irregular, or amended or otherwise dealt with, in such manner and on such terms as the Court may think fit.

94. The Court may, under special circumstances, and for good cause shown, extend or abridge the time appointed by these rules or fixed by any order of the Court for doing any act or taking any proceeding.

_______________

Insolvency (Prescribed Forms) Regulations 2012

[GN 13 of 2012 2 February 2012] [Section 411(1)(a)]

1. These regulations may be cited as the Insolvency (Prescribed Forms) Regulations 2012.

2. In these regulations

"Act" means the Insolvency Act.

3. For the purposes of

(a) sections 15, 25 and 79 of the Act, a statement of affairs shall be in the form set out in the First Schedule;

(b) section 79 of the Act, a proposal shall be in the form set out in the
Second Schedule;

(c) section 81(1)(e) of the Act, a postal vote shall be in the form set out in the Third Schedule;

(d) section 86 of the Act, an application for a summary instalment order shall be in the form set out in the Fourth Schedule;

(e) section 180 of the Act, a statutory demand shall be in the form set out in the Fifth Schedule;

(f) section 222(2)(d) of the Act, the account shall be in the form set out in the Sixth Schedule;

(g) section 374(2) of the Act, a notice shall be in the form set out in the
Seventh Schedule;

(h) item 12(2) of the Second Schedule to the Act, the valuation and the proof shall be in the form set out in the Eighth Schedule.

_______________

FIRST SCHEDULE

[Regulation 3(a)]

INSOLVENCY ACT
STATEMENT OF AFFAIRS

(sections 15, 25 and 79)For Office Use
S15, 25, 79/IS 1

IN THE SUPREME Court OF MAURITIUS

I, .............................................................., residing at ............................... (address), holder of a National Identity Card number ....................................., make oath/solemn affirmation as a ................................. and state that:

1. The attached Statement of Affairs is to the best of my knowledge and belief a full, true, complete and faithful disclosure of my affairs as at this date.

2. I have not concealed, removed, embezzled or destroyed any part of my estate, assets (real or personal), books of accounts, paper or writing in relation thereto with intent to defraud my creditors.

Sworn/solemnly affirmed by me.

At Chambers, Supreme Court, Port Louis,

This .............. day of ......... 20...

Before me

...............................

Supreme Court

STATEMENT OF AFFAIRS

[Sections 15, 25 and 79 of Insolvency Act]

NIC no. ..........................................

BR no. ..........................................

This form shall be used in relation to
(a) a case of a debtor's petition (s. 15);
(b) following a bankruptcy order (s. 25); or
(c) a proposal by an insolvent (s. 79).

This Statement of Affairs is being filed in respect of

(i) your own petition

(ii) a bankruptcy order

(iii) a proposal

PART A – PERSONAL DETAILS

1a. Title

Mr Ms

1b. Surname
1c. Name(s)  

1d. Maiden name(if applicable)

 
1e. Any other commonly known name(s)  
1f. Date of birth

/ /

 
1g. Gender   Male Female
1h Residential address      
1i. Any other address      
1j. Postal address
(if any)
     
1k. Telephone no.

Home

Office

Mobile

1l. Email address  

Employment

2. Select the option that best describes your current employment status.

Employed Please state current occupation  
  Please state name of employer
Self-employed Associé Please provide details  
  Partner Please provide details  
  Shareholder Please provide details  
Unemployed      
Retired      
Student      

Other (please specify)

     

Cause of Insolvency

3. Select the cause(s) of your insolvency.

Cause Main
(select only one)
Subsidiary
Unemployment or loss of income    
Ill health/any addiction    
Gambling    
Speculation    
Extravagance in living    
Legal separation or divorce    
Excessive interest payments/drawings/use of overdraft/credit facilities    
Liabilities due to guarantees    
Adverse legal action    
Lack of sufficient working capital    
Inability to collect debts/bad debts    
Economic conditions, including external factors, increased competition/costs    
Unfavourable seasonal conditions    
Failure to keep proper accounting records    
Other (please specify)    

Income

4. Please provide details of all the income and benefits you receive.

Type of income

Received from

Net monthly amount received
(Rs)

     
     
     

No. of persons in your household

5a. Name of spouse/partner who lives with you (if any)

 

5b. List down the dependents who rely on your income or benefit, whether they live with you full time or not (e.g. school aged children, parents, invalid relatives who do not receive a benefit)

Full Name Relationship Age
     
     
     

Passport/travel documents

6. If you are holder of a passport/travel document, please provide details as follows:

Number Date of issue Place of issue Date of expiry
 

/ /

 

/ /

 

/ /

 

/ /

PART B BACKGROUND TO INSOLVENCY

7. When did you become unable to pay your debts as they became due?

/ /

8a. Have you ever been in a Summary Instalment Order or Bankruptcy bef

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