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Contents  

Part I PRELIMINARY

Part II COURT PROCEDURE

Court and chambers

Proceedings

Applications and practice

Affidavits

Security in court

Witnesses and depositions

Warrants, arrests and commitments

Service and execution of process

Appeals

Part III OFFICIAL ASSIGNEE

Report of Official Assignee

Part IV TRUSTEE IN BANKRUPTCY

Part V VOLUNTARY ARRANGEMENTS

Proposal for voluntary arrangement

Interim order

Preparation of nominee’s report

Action on proposal

Procedure for review of meeting’s decision

Completion of arrangement

Part VI PROCEEDINGS IN BANKRUPTCY

Statutory demand

Creditor’s bankruptcy application

Service of creditor’s bankruptcy application

Hearing of creditor’s bankruptcy application

Actions to follow upon making of bankruptcy order on creditor’s bankruptcy application

Debtor’s bankruptcy application

Actions to follow upon making of bankruptcy order on debtor’s bankruptcy application

Interim receiver

Part VII BANKRUPTCY ADMINISTRATION

Creditors’ meeting

Statements of affairs

Examination of bankrupt and others

Settlement of list of debtors to estate

Procedure for proving debts

Quantification of claim

Secured creditors

Taking accounts of property mortgaged and sale thereof

Admission and rejection of proofs

Approval of composition or scheme

Appropriation of pay, salary, pensions, etc.

Disclaimer of lease

Disputed title to property

Special manager

Security by special manager

Distribution of dividends

Part VIII ANNULMENT AND DISCHARGE

Part IX COSTS AND TAXATION

Part IXA ELECTRONIC FILING SYSTEM

Part X MISCELLANEOUS PROVISIONS

Administration of estates of deceased insolvent

Persons of unsound mind

Registers

Accounts and audit

THE SCHEDULE

Legislative History

 
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Hearing of creditor’s bankruptcy application
Hearing of creditor’s bankruptcy application
115.
—(1)  Subject to paragraph (2), a creditor’s bankruptcy application shall not be heard until the expiration of 7 clear days, or such longer time as the court may direct, from the service thereof.
(2)  The court may, on such terms as it thinks fit, hear the creditor’s bankruptcy application at an earlier date where —
(a)
it is satisfied that the debtor has absconded;
(b)
it is satisfied that it is a proper case for an expedited hearing; or
(c)
the debtor consents to a hearing within the 7 days.
Parties who may be heard
116.
—(1)  Any of the following persons may appear and be heard:
(a)
the creditor making the bankruptcy application;
(b)
the debtor;
(c)
where there has been a voluntary arrangement under Part V of the Act, the nominee who was supervising the arrangement;
(d)
any creditor who has given notice to the court of his intention to appear at the hearing of the bankruptcy application; and
(e)
the Official Assignee.
(2)  The notice given by a creditor under paragraph (1)(d) shall be in Form 5 and shall specify —
(a)
the name, address and telephone number of the person giving it;
(b)
whether his intention is to support or oppose the bankruptcy application; and
(c)
the amount and nature of his debt.
(3)  The notice shall be filed at least one day before the hearing.
(4)  Any creditor failing to comply with this rule shall not appear at the hearing except by leave of the court.
Where there are several debtors
117.  Where service has not been effected upon all the debtors against whom a creditor’s bankruptcy application has been made, the bankruptcy application may be heard separately or collectively as regards any debtors who have been served, and may subsequently be heard separately or collectively as regards any other debtors after service has been effected upon them.
Bankruptcy application by moneylender
118.  Where a creditor making a bankruptcy application is a licensed moneylender, he shall, at the hearing of the bankruptcy application, prove his debt by an affidavit incorporating a statement setting out in detail the particulars required by any written law for the time being in force relating to moneylenders.
Bankruptcy application opposed by debtor
119.  Where the debtor intends to oppose a creditor’s bankruptcy application filed against him, he shall not later than 3 days before the hearing —
(a)
file in court a notice specifying the grounds upon which he will object to the making of a bankruptcy order; and
(b)
serve a copy of the notice on the applicant creditor and the Official Assignee.
Non-appearance of applicant creditor or lack of prosecution of bankruptcy application
120.
—(1)  If the creditor making a bankruptcy application fails to appear on the hearing of the bankruptcy application or fails to prosecute the application diligently, the application may be dismissed and no subsequent application against the same debtor, either alone or jointly with any other person, shall be made by the same creditor in respect of the same debt without the leave of the court.
(2)  Without prejudice to paragraph (1), where the bankruptcy application has been dismissed without a hearing by reason of the failure of the applicant creditor to attend the hearing, the application shall not be restored to the list.
Postponement of hearing of bankruptcy application where it has not been served
121.
—(1)  The creditor making a bankruptcy application may apply to the court for extension of time for the hearing of the bankruptcy application if the application has not been served.
(2)  The application for extension of time shall state the reasons why the bankruptcy application has not been served.
(3)  The costs of the application for extension of time, if any, shall not be borne by the debtor.
(4)  The bankruptcy application shall be amended before service to reflect the new hearing date.
(5)  The court shall not extend time for more than 14 days from the day fixed for the hearing unless it is shown to the satisfaction of the court that no prejudice will result from a longer extension.
Adjournment of hearing of bankruptcy application for other reasons
122.
—(1)  After the expiration of one month from the day appointed for the first hearing of a creditor’s bankruptcy application (after the application has been duly served), no further adjournment of the hearing shall be allowed except on the following grounds:
(a)
where the debtor appears to show cause against the bankruptcy application or dispute any matter relevant to the bankruptcy proceedings;
(b)
where the debtor appears and satisfies the court that he is able to pay his debt in full or in part within a reasonable period; or
(c)
where the court is satisfied that there are sufficient reasons for granting the adjournment.
(2)  In every such case, unless an order for adjournment is made, the court shall either make a bankruptcy order or dismiss the bankruptcy application.
(3)  If the court adjourns the hearing of the creditor’s bankruptcy application, the applicant creditor shall immediately send a notice of the adjournment in Form 6 to the debtor, unless the debtor was present during the hearing.
(4)  The costs of any adjournment of the hearing of the bankruptcy application shall not be borne by the debtor if the adjournment was necessitated by any act or omission of the applicant creditor.
Substitution of applicant creditor
123.
—(1)  This rule shall apply where a creditor who has made a bankruptcy application —
(a)
fails to appear in support of his bankruptcy application on the day fixed for the hearing thereof;
(b)
appears but does not apply for an order in terms of the relief sought in his application; or
(c)
does not diligently prosecute the application.
(2)  The court may, on such terms as it thinks just, order that the creditor making the bankruptcy application be substituted by any other creditor who —
(a)
has given notice of his intention to appear and support the bankruptcy application under rule 116 and so appears;
(b)
is desirous of prosecuting the application; and
(c)
was in such a position in relation to the debtor at the date on which the bankruptcy application was filed as would have enabled him on that date to file a bankruptcy application against the debtor.
(3)  An order of court under paragraph (2) shall be in Form 7.
(4)  Where the court has ordered the substitution of the applicant creditor under paragraph (2), the original applicant creditor shall not be entitled to the costs of the bankruptcy proceedings unless the court otherwise orders.
Bankruptcy application to be amended
124.  Where the court orders the substitution of the applicant creditor under rule 123, the creditor’s bankruptcy application shall be amended accordingly and shall be re-filed and re-served together with an affidavit in support of the amended application on the debtor and the Official Assignee.
Deposit payable upon substitution of applicant creditor
125.
—(1)  The new applicant creditor shall file 2 copies of the amended bankruptcy application and the supporting affidavit in court, inclusive of the copy to be served on the Official Assignee, together with the deposit payable to the Official Assignee of such sums as are prescribed by the Bankruptcy (Fees) Rules (R 3).
(2)  Upon the filing of 2 copies of the amended application and the supporting affidavit under paragraph (1), the amended application and affidavit shall be deemed to have been served on the Official Assignee.
(3)  Where an amended application has been filed under paragraph (1), the Official Assignee may, from time to time, require the new applicant creditor to deposit with the Official Assignee such further sums as may be required by the Official Assignee, whether before or after the making of the bankruptcy order, to cover the fees and expenses incurred by the Official Assignee in connection with the bankruptcy application.
Decision on hearing of bankruptcy application
126.  On the hearing of a creditor’s bankruptcy application, the court may make a bankruptcy order if it is satisfied that the statements in the supporting affidavit are true, and the debt on which the bankruptcy application has been founded has not been paid, secured or compounded for.
Dismissal of bankruptcy application
127.  The court shall dismiss a creditor’s bankruptcy application where —
(a)
the applicant creditor is not entitled to make the bankruptcy application by virtue of section 60, 61 or 62 of the Act;
(b)
the statutory demand upon which the application is based is such that the court would have set it aside had the debtor made an application under rule 97; or
(c)
in a case where the application is based on a statutory demand, the applicant creditor has not discharged the obligations imposed on him by rule 96.