PART VII | ADMINISTRATION IN BANKRUPTCY |
| Commencement and duration of bankruptcy |
75. The bankruptcy of any person who has been adjudged bankrupt by a bankruptcy order (whether made against him or against the firm in which he is a partner) shall —| (a) | commence on the day when the bankruptcy order is made; and | | (b) | continue until he is discharged under Part VIII. |
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| Effect of bankruptcy order |
76.—(1) On the making of a bankruptcy order —| (a) | the property of the bankrupt shall —| (i) | vest in the Official Assignee without any further conveyance, assignment or transfer; and | | (ii) | become divisible among his creditors; |
| | (b) | the Official Assignee shall be constituted receiver of the bankrupt’s property; and | | (c) | unless otherwise provided by this Act —| (i) | no creditor to whom the bankrupt is indebted in respect of any debt provable in bankruptcy shall have any remedy against the person or property of the bankrupt in respect of that debt; and | | (ii) | no action or proceedings shall be proceeded with or commenced against the bankrupt in respect of that debt, |
| except by leave of the court and in accordance with such terms as the court may impose. |
[6/2009] |
| (2) Where a bankruptcy order is made against a firm, the order shall operate as if it were a bankruptcy order made against each of the persons who, at the time of the order, is a partner in the firm. |
| (3) This section shall not affect the right of any secured creditor to realise or otherwise deal with his security in the same manner as he would have been entitled to realise or deal with it if this section had not been enacted. |
| (4) Notwithstanding subsection (3) and section 94, no secured creditor shall be entitled to any interest in respect of his debt after the making of a bankruptcy order if he does not realise his security within 6 months from the date of the bankruptcy order or such further period as the Official Assignee may determine. |
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| Restrictions on dispositions of property by bankrupt |
| 77.—(1) Where a person is adjudged bankrupt, any disposition of property made by him during the period beginning with the day of the making of the bankruptcy application and ending with the making of the bankruptcy order shall be void except to the extent that such disposition has been made with the consent of, or been subsequently ratified by, the court. [42/2005] | (2) For the purpose of this section, a disposition of property shall include any payment (whether in cash or otherwise) made to any person by the bankrupt and accordingly, where any payment is void by virtue of this section, the person to whom the payment was made shall hold the sum paid for the bankrupt as part of his estate. |
(3) Nothing in this section shall give a remedy against any person in respect of —| (a) | any property or payment which he received from the bankrupt before the commencement of the bankruptcy in good faith, for value and without notice that the bankruptcy application had been made; or | | (b) | any interest in property which derives from an interest in respect of which there is, by virtue of this subsection, no remedy. [42/2005] |
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(4) Where, after the commencement of his bankruptcy, the bankrupt has incurred a debt to a banker or any other person by reason of the making of a payment which is void under this section, that debt shall be deemed for the purposes of this Act to have been incurred before the commencement of the bankruptcy unless —| (a) | that banker or person had notice of the bankruptcy before the debt was incurred; or | | (b) | it is not reasonably practicable for the amount of the payment to be recovered from the person to whom it was made. |
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| (5) A disposition of property shall be void under this section notwithstanding that the property is not or, as the case may be, would not be comprised in the bankrupt’s estate, but nothing in this section shall affect any disposition made by a person of property held by him on trust for any other person. |
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| Description of bankrupt’s property divisible amongst creditors |
78.—(1) The property of the bankrupt divisible among his creditors (referred to in this Act as the bankrupt’s estate) shall comprise —| (a) | all such property as belongs to or is vested in the bankrupt at the commencement of his bankruptcy or is acquired by or devolves on him before his discharge; and | | (b) | the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge. |
(2) Subsection (1) shall not apply to —| (a) | property held by the bankrupt on trust for any other person; | | (b) | the tools, if any, of his trade; | | (c) | such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his family; and | | (d) | property of the bankrupt which is excluded under any other written law. |
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| Inquiry into bankrupt’s affairs, dealings and property |
79.—(1) The Official Assignee may, at any time after the making of a bankruptcy order, summon a meeting of the bankrupt’s creditors.| (2) Notwithstanding subsection (1), the Official Assignee shall summon a meeting of the bankrupt’s creditors whenever directed by the court to do so or whenever requested in writing by one-fourth in value of the bankrupt’s creditors to do so. |
| (3) Every meeting summoned under this section shall be conducted in accordance with the prescribed rules. |
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80.—(1) At any meeting convened by the Official Assignee under section 79(1), the creditors qualified to vote thereat, including the holders of general proxies or general powers of attorney from such creditors, may by ordinary resolution appoint from amongst themselves a committee (known as the “creditors’ committee”) of not more than 3 persons for the purpose of advising the Official Assignee on matters relating to the administration of the property of the bankrupt.| (2) The Official Assignee may convene the creditors’ committee at such times as he may think necessary, but shall convene the committee whenever requested in writing to do so by all or a majority of the members of the committee. |
| (3) Any member of the creditors’ committee may resign his office by notice in writing, signed by him and delivered to the Official Assignee. |
| (4) If a member of the creditors’ committee becomes bankrupt, or compounds or arranges with his creditors, or is absent for more than 2 months from Singapore, his office shall thereupon become vacant. |
| (5) Any member of the creditors’ committee may be removed by an ordinary resolution at any meeting of creditors, of which 7 days’ notice has been given stating the object of the meeting. |
| (6) On a vacancy occurring in the office of a member of the creditors’ committee, the Official Assignee shall forthwith summon a meeting of creditors for the purpose of filling the vacancy, and the meeting may by ordinary resolution appoint another creditor or eligible person to fill the vacancy. |
| 1(7) In this section, “general powers of attorney” include lasting powers of attorney registered under the Mental Capacity Act 2008 (Act 22 of 2008). [22/2008] |
| 1 Subsection (7) of section 80, inserted by the Mental Capacity Act (Act 22 of 2008), will come into operation when item (1) in the Third Schedule to the Mental Capacity Act 2008 is brought into operation. |
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| Bankrupt’s statement of affairs |
| 81.—(1) Where a bankruptcy order has been made against an individual otherwise than on a debtor’s bankruptcy application, the bankrupt shall submit a statement of his affairs to the Official Assignee within 21 days from the date of the bankruptcy order. [42/2005] (2) Where a bankruptcy order has been made against a firm —| (a) | on a creditor’s bankruptcy application, the bankrupts, being the partners in the firm at the time of the order, shall submit a joint statement of their partnership affairs, and each partner in the firm shall submit a statement of his separate affairs; or | | (b) | on a debtor’s bankruptcy application, every person who at the time of the order is a partner in the firm but who did not join in the application shall submit a statement of his separate affairs, |
| to the Official Assignee within 21 days from the date of the bankruptcy order. |
[42/2005] |
(3) The statement of affairs referred to in subsection (2) shall contain —| (a) | such particulars of the bankrupt’s assets, creditors, debts and other liabilities as may be prescribed; | | (b) | in the case of a firm, such particulars of the firm’s assets, creditors, debts and other liabilities as may be prescribed; and | | (c) | such other information as may be prescribed. |
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(4) The Official Assignee may, if he thinks fit —| (a) | release the bankrupt from his duty under subsection (1) or (2), as the case may be; or | | (b) | extend the period specified in subsection (1) or (2). |
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| (5) Where the Official Assignee has refused to exercise a power conferred by this section, the court, if it thinks fit, may exercise it. |
(6) A bankrupt who —| (a) | without reasonable excuse, fails to comply with the obligation imposed by this section; | | (b) | without reasonable excuse, submits a statement of affairs which does not comply with the prescribed requirements; | | (c) | submits a statement of affairs which is false, and which he either knows or believes to be false or does not believe to be true; or | | (d) | submits a statement of affairs which is misleading in any material particular or contains any material omission, |
| shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $200 for every day during which the offence continues after conviction. |
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| (7) Any person stating himself, in writing, to be a creditor of the bankrupt may personally or by agent inspect the statement of affairs filed by the bankrupt under this section at all reasonable times and upon payment of the prescribed fee take any copy thereof or extract therefrom. |
| (8) Any person untruthfully stating himself to be a creditor under subsection (7) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 6 months or to both. |
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| Bankrupt to submit accounts |
82.—(1) A bankrupt who has not obtained his discharge shall, unless otherwise directed by the Official Assignee —| (a) | submit to the Official Assignee once in every 6 months an account of all moneys and property which have come to his hands for his own use during the preceding 6 months or such other period as the Official Assignee may specify; or | | (b) | pay and make over to the Official Assignee so much of such moneys and property as have not been expended in the necessary expenses of maintenance of himself and his family. |
| (2) A bankrupt who fails to comply with subsection (1)(a) or (b) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $200 for every day during which the offence continues after conviction. |
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| Examination of bankrupt and others |
83.—(1) Where a bankruptcy order has been made, the court may, upon an application made by the Official Assignee or by a creditor who has tendered a proof, at any time before the discharge of the bankrupt —| (a) | summon the bankrupt to appear before it on an appointed day and examine him as to his affairs, dealings and property; and | | (b) | summon to appear before it on the same or another appointed day and examine —| (i) | the bankrupt’s spouse or former spouse; | | (ii) | any person known or believed to be indebted to the bankrupt or to have in his possession any property comprised in the bankrupt’s estate; and | | (iii) | any other person, |
| if it appears to the court that such person would be able to give information concerning the bankrupt or the bankrupt’s affairs, dealings or property. |
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| (2) Every person summoned before the court under this section shall be examined on oath, whether orally or by interrogatories. |
| (3) Without prejudice to subsection (2), the court may at any time require any person mentioned in subsection (1)(b) to submit an affidavit to the court containing an account of his dealings with the bankrupt or to produce any documents in his possession or under his control relating to the bankrupt or the bankrupt’s affairs, dealings or property. |
| (4) The court may adjourn any examination under this section from time to time. |
| (5) Any creditor who has tendered a proof or the representative of such creditor who has been authorised in writing, may question the bankrupt or such other person as may have been summoned by the court under subsection (1) concerning the bankrupt’s affairs, dealings or property and the causes of the bankrupt’s failure. |
| (6) The Official Assignee shall take part in the examination of the bankrupt, and may for the purpose thereof employ a solicitor, but no solicitor shall be allowed to take part in the examination on behalf of the bankrupt. |
| (7) The court may put such questions as it thinks expedient to the bankrupt or to such other person summoned by it. |
| (8) It shall be the duty of the bankrupt and any other person summoned by the court under this section to answer all such questions as the court puts or allows to be put to him. |
| (9) The court shall cause to be made such record of the examination as the court thinks proper and any record so made may thereafter be used in evidence against the person in the course of whose examination the record was made. [17/2005] |
| (10) Any record made under subsection (9) shall, at all reasonable times and upon payment of the prescribed fee, be made available to any creditor for review at the court premises. [17/2005] |
| (11) Where the court is of the opinion that the affairs of the bankrupt have been sufficiently investigated, it shall, by order, conclude the examination. |
| (12) The order under subsection (11) shall not preclude the court from directing a further examination of the bankrupt or any other person as to the bankrupt’s affairs, dealings and property whenever it sees fit to do so. |
| (13) Where a bankrupt or any other person summoned by the court under this section without reasonable excuse fails at any time to attend before the court or where there are reasonable grounds for believing that the bankrupt or such other person has absconded, or is about to abscond, with a view to avoiding his appearance before the court under this section, the court may cause a warrant to be issued for his arrest and for the seizure of any books, papers, records, money or goods in his possession. |
(14) The court may authorise —| (a) | any person arrested under subsection (13) to be kept in custody; and | | (b) | anything seized from such person to be held, |
| until that person is brought before the court or until such other time as the court may order. |
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| (15) Where a bankrupt or any other person summoned by the court under this section without reasonable excuse fails at any time to attend before the court, he shall be guilty of a contempt of court and shall be liable to be punished accordingly in addition to any other punishment to which he may be subject. |
| (16) The court may, if it thinks fit, order that any person who if within Singapore would be liable to be summoned to appear before it and examined under this section shall be examined in Singapore or elsewhere. |
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| Power of court following examination of bankrupt and others |
84.—(1) If it appears to the court, on consideration of any evidence obtained under section 83 that any person has in his possession any property comprised in the bankrupt’s estate, the court may, on the application of the Official Assignee, order that person to deliver the whole or any part of the property to the Official Assignee at such place and time and in such manner and on such terms as the court may think fit.| (2) If it appears to the court, on consideration of any evidence obtained under section 83 that any person is indebted to the bankrupt, the court may, on the application of the Official Assignee, order that person to pay to the Official Assignee, at such place and time and in such manner as the court may direct, the whole or part of the amount due, whether in full discharge of the debt or otherwise as the court thinks fit. |
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| Unenforceability of liens on books, etc. |
85.—(1) Subject to this section, a lien or other right to retain possession of any of the books, papers or other records relating to the affairs or property of a bankrupt shall be unenforceable to the extent that its enforcement would deny possession of any books, papers or other records to the Official Assignee.| (2) Subsection (1) shall not apply to a lien on documents which give a title to property and are held as such. |
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| Official Assignee to settle list of debtors to the estate |
86.—(1) The Official Assignee shall, as soon as possible after a bankruptcy order has been made, prepare and file in court a list of persons supposed to be indebted to the bankrupt, with the amounts in which they are supposed to be so indebted set out opposite to their names respectively.(2) Before finally settling the name and amount of the debt of any person on such list, the Official Assignee shall give notice in writing to that person stating that —| (a) | he has placed that person upon the list of debtors to the estate in the amount in the notice specified; and | | (b) | unless that person on or before a day specified in such notice gives to the Registrar and the Official Assignee notice in writing of his intention to dispute his indebtedness, he shall be deemed to admit that the amount set out opposite his name in the list is due and owing by him to the bankrupt and shall be settled on the list accordingly. |
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| (3) Any person included in the list who does not give notice of his intention to dispute his indebtedness within the time limited in that behalf shall be settled upon that list, and execution may be issued against him for the amount set out opposite his name in the list in the same way as if judgment had been entered against him for such amount in favour of the Official Assignee. |
| (4) A certificate by the Registrar that the person named therein has been settled upon such list as a debtor to the estate in the amount in the certificate specified shall be received as proof of the facts therein stated. |
| (5) A person settled upon such list under this section may apply to the court in a summary way for leave to dispute his indebtedness or the amount thereof. |
| (6) The court may if it thinks fit make such order for determining the question as may seem expedient upon the terms of the person giving security for costs and either paying into court or giving security for the whole or such part of the alleged debt as under the circumstances may seem reasonable, and may stay all further proceedings. |
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| Description of debts provable in bankruptcy |
87.—(1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust shall not be provable in bankruptcy.| (2) A person having notice of the making of a bankruptcy application shall not prove under the bankruptcy order made thereon for any debt or liability contracted by the bankrupt subsequently to the date of his so having notice. [42/2005] |
(3) Subject to this section and section 90, any debt or liability to which the bankrupt —| (a) | is subject at the date of the bankruptcy order; or | | (b) | may become subject before his discharge by reason of any obligation incurred before the date of the bankruptcy order, |
| and any interest on such debt or liability which is payable by the bankrupt in respect of any period before the commencement of his bankruptcy shall be provable in bankruptcy. |
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| (4) An estimate shall be made by the Official Assignee of the value of any debt or liability provable under this section which, by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. |
| (5) Any person aggrieved by any such estimate may appeal to the court. |
| (6) If in the opinion of the court the value of the debt or liability is incapable of being fairly estimated, the court may make an order to that effect, and thereupon the debt or liability shall, for the purposes of this Act, be deemed to be a debt not provable in bankruptcy. |
| (7) If in the opinion of the court the value of the debt or liability is capable of being fairly estimated, the court may assess the same and may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in bankruptcy. |
| (8) An amount payable under any order made by a court under any written law relating to the confiscation of the proceeds of crime shall be provable in bankruptcy. |
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| Mutual credit and set-off |
88.—(1) Where there have been any mutual credits, mutual debts or other mutual dealings between a bankrupt and any creditor, the debts and liabilities to which each party is or may become subject as a result of such mutual credits, debts or dealings shall be set-off against each other and only the balance shall be a debt provable in bankruptcy.(2) There shall be excluded from any set-off under subsection (1) any debt or liability of the bankrupt which —| (a) | is not a debt provable in bankruptcy; or | | (b) | arises by reason of an obligation incurred at a time when the creditor had notice that a bankruptcy application relating to the bankrupt was pending. [42/2005] |
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| Rules as to proof of debts |
| 89. With respect to the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs and any other matters, the prescribed rules shall be observed. |
90.—(1) Subject to this Act, in the distribution of the property of a bankrupt, there shall be paid in priority to all other debts —| (a) | firstly, the costs and expenses of administration or otherwise incurred by the Official Assignee and the costs of the applicant for the bankruptcy order (whether taxed or agreed) and the costs and expenses properly incurred by a nominee in respect of the administration of any voluntary arrangement under Part V; | | (b) | secondly, subject to subsection (2), all wages or salary (whether or not earned wholly or in part by way of commission) including any amount payable by way of allowance or reimbursement under any contract of employment or award or agreement regulating the conditions of employment of any employee; | | (c) | thirdly, subject to subsection (2), the amount due to an employee as a retrenchment benefit or an ex gratia payment under any contract of employment or award or agreement that regulates the conditions of employment, whether such amount becomes payable before, on or after the date of the bankruptcy order; | | (d) | fourthly, all amounts due in respect of any work injury compensation under the Work Injury Compensation Act (Cap. 354) accrued before, on or after the date of the bankruptcy order; | | (e) | fifthly, all amounts due in respect of contributions payable during the 12 months immediately before, on or after the date of the bankruptcy order by the bankrupt as the employer of any person under any written law relating to employees’ superannuation or provident funds or under any scheme of superannuation which is an approved scheme under the Income Tax Act (Cap. 134); | | (f) | sixthly, all remuneration payable to any employee in respect of vacation leave, or in the case of his death, to any other person in his right, accrued in respect of any period before, on or after the date of the bankruptcy order; and | | (g) | seventhly, the amount of all taxes assessed and any goods and services tax due under any written law before the date of the bankruptcy order or assessed at any time before the time fixed for the proving of debts has expired. [42/2005,5/2008] |
| (2) The amount payable under subsection (1)(b) and (c) shall not exceed an amount that is equivalent to 5 months’ salary whether for time or piecework in respect of services rendered by any employee to the bankrupt or $7,500, whichever is the lesser. |
| (3) The Minister may, by order published in the Gazette, amend subsection (2) by varying the amount specified in that subsection as the maximum amount payable under subsection (1)(b) and (c). |
(4) For the purposes of subsection (1)(b) and (c) —| “employee” means a person who has entered into or works under a contract of service with the bankrupt and includes a subcontractor of labour; |
“wages or salary” includes —| (a) | all arrears of money due to a subcontractor of labour; | | (b) | any amount payable to an employee on account of wages or salary during a period of notice of termination of employment or in lieu of notice of such termination, as the case may be, whether such amount becomes payable before, on or after the date of the bankruptcy order; and | | (c) | any amount payable to an employee, on termination of his employment, as a gratuity under any contract of employment, or under any award or agreement that regulates the conditions of his employment, whether such amount becomes payable before, on or after the date of the bankruptcy order. |
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(5) For the purposes of subsection (1)(c) —| “ex gratia payment” means the amount payable to an employee on the bankruptcy of his employer or on the termination of his service by his employer on the ground of redundancy or by reason of any re-organisation of the employer, profession, business, trade or work, and “the amount payable to an employee” for these purposes means the amount stipulated in any contract of employment, award or agreement, as the case may be; |
| “retrenchment benefit” means the amount payable to an employee on the bankruptcy of his employer, on the termination of his service by his employer on the ground of redundancy or by reason of any re-organisation of the employer, profession, business, trade or work, and “the amount payable to an employee” for these purposes means the amount stipulated in any contract of employment, award or agreement, as the case may be, or if no amount is stipulated therein, such amount as is stipulated by the Commissioner for Labour. |
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| (6) The debts in each class specified in subsection (1) shall rank in the order therein specified but debts of the same class shall rank equally between themselves, and shall be paid in full, unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions between themselves. |
| (7) Where any payment has been made to any employee of the bankrupt on account of wages, salary or vacation leave out of money advanced by a person for that purpose, the person by whom the money was advanced shall, in a bankruptcy, have a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the employee would have been entitled to priority in the bankruptcy has been diminished by reason of the payment, and shall have the same right of priority in respect of that amount as the employee would have had if the payment had not been made. |
| (8) Where any creditor has given any indemnity or made any payment of moneys by virtue of which any asset of the bankrupt has been recovered, protected or preserved, the court may make such order as it thinks just with respect to the distribution of such asset with a view to giving that creditor an advantage over other creditors in consideration of the risks run by him in so doing. |
| (9) Where an interim receiver has been appointed under section 73 before the making of the bankruptcy order, the date of the appointment shall, for the purposes of this section, be deemed to be the date of the bankruptcy order. |
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| Payment of partnership debts |
91.—(1) In the case of partners, the joint estate shall be applicable in the first instance in payment of their joint debts, and the separate estate of each partner shall be applicable in the first instance in payment of his separate debts.| (2) If there is surplus of the separate estates, it shall be dealt with as part of the joint estate. |
| (3) If there is surplus of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. |
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| Right of landlord to distrain for rent |
92.—(1) The right of any landlord or other person to whom rent is payable to distrain upon the goods and effects of a bankrupt for rent due to him from the bankrupt shall, subject to subsection (5), be available against goods and effects comprised in the bankrupt’s estate in respect only of 3 months’ rent accrued due before the commencement of the bankruptcy.(2) Where a landlord or other person to whom rent is payable has distrained for rent upon the goods and effects of an individual to whom a bankruptcy application relates and a bankruptcy order is subsequently made on that application, any amount recovered by way of that distress which —| (a) | is in excess of the amount which by virtue of subsection (1) would have been recoverable after the commencement of the bankruptcy; or | | (b) | is in respect of rent for a period or part thereof after the distress was levied, |
| shall be held by the landlord or other person in trust for the bankrupt as part of his estate and the landlord or other person shall, upon being given notice by the Official Assignee to do so, make over to the Official Assignee the amount so held in trust by him for the bankrupt. |
[42/2005] |
| (3) Where any person (whether or not a landlord or person entitled to rent) has distrained upon the goods or effects of an individual who is adjudged bankrupt before the end of the period of 3 months beginning with the distraint, so much of those goods or effects, or of the proceeds of their sale, as is not held by him in trust for the bankrupt under subsection (2) shall be charged for the benefit of the bankrupt’s estate with the preferential debts of the bankrupt to the extent that the bankrupt’s estate is for the time being insufficient for meeting those debts. |
| (4) Where by virtue of any charge under subsection (3) any person surrenders any goods or effects to the Official Assignee, that person shall rank, in respect of the amount of the proceeds of the sale of those goods or effects by the Official Assignee or, as the case may be, the amount of the payment, as a preferential creditor of the bankrupt, except as against so much of the bankrupt’s estate as is available for the payment of preferential creditors by virtue of the surrender or payment. |
| (5) A landlord or other person to whom rent is payable shall not be entitled at any time after the discharge of a bankrupt to distrain upon any goods or effects comprised in the bankrupt’s estate. |
| (6) Any right to distrain against property comprised in a bankrupt’s estate shall be exercisable notwithstanding that the property has vested in the Official Assignee. |
| (7) The provisions of this section are without prejudice to a landlord’s right in a bankruptcy to prove for any debt due to him from the bankrupt in respect of rent. |
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| Contracts to which bankrupt is party |
93.—(1) This section shall apply where a contract has been made with a person who is subsequently adjudged bankrupt.| (2) The court may, on the application of any other party to the contract, make an order discharging obligations under the contract on such terms as to payment by the applicant or the bankrupt of damages for non-performance or otherwise as appear to the court to be equitable. |
| (3) Any damages payable by the bankrupt by virtue of an order of the court under this section shall be a debt provable in bankruptcy. |
| (4) Where an undischarged bankrupt is a contractor in respect of any contract jointly with any person, that person may sue or be sued in respect of the contract without the joinder of the bankrupt. |
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94.—(1) Where a debt which has been proved in a bankruptcy includes interest, that interest shall, for the purposes of distribution of dividend, be calculated at such rate as may be prescribed by the rules, without prejudice to the right of any creditor to receive out of the surplus of the estate after all the debts proved in the bankruptcy have been paid in full any higher rate of interest to which he may be entitled.| (2) Interest on preferential debts shall rank equally with interest on debts other than preferential debts. |
| (3) For the purpose of this section, “interest” includes any pecuniary consideration in lieu of interest and any penalty or late payment charge by whatever name called. |
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| Composition or scheme of arrangement |
| Creditors may accept composition or scheme by special resolution |
95.—(1) Where a bankruptcy order has been made, the creditors who have proved their debts may, if they think fit —| (a) | at a general meeting of creditors; or | | (b) | in writing, |
| by special resolution, resolve to accept a proposal for a composition in satisfaction of the debts due to them under the bankruptcy, or for a scheme of arrangement of the bankrupt’s affairs. |
[37/99] | (2) A meeting under subsection (1)(a) shall be summoned by the Official Assignee by not less than 21 days’ notice. [37/99] |
| (3) A special resolution in writing under subsection (1)(b) shall be sought by a notice from the Official Assignee giving the creditors 21 days to reply. [37/99] |
| (4) Any notice under this section shall state generally the terms of the proposal and shall be accompanied by a report of the Official Assignee thereon. [37/99] |
| (5) Where a special resolution is sought at a general meeting of creditors under subsection (1)(a), any creditor who has proved his debt may assent to or dissent from the composition or scheme by a letter addressed to the Official Assignee in the prescribed form, and attested by a witness, and sent or posted so as to be received by the Official Assignee not later than 3 days preceding the meeting, and a creditor so assenting or dissenting shall be taken as having been present and voting at that meeting. [37/99] |
| (6) Where a special resolution is sought in writing under subsection (1)(b), any creditor who has proved his debt shall assent to or dissent from the composition or scheme by a letter addressed to the Official Assignee, and sent or posted so as to be received by the Official Assignee not later than 21 days from the date of the Official Assignee’s notice. [37/99] |
| (7) The composition or scheme shall not be binding on the creditors unless the bankruptcy order to which it relates is annulled under section 95A. [37/99] |
(8) For the purposes of this section, “special resolution” means —| (a) | in relation to a special resolution sought under subsection (1)(a), a resolution passed at a general meeting of creditors by a majority in number and at least three-fourths in value of the creditors who have proved their debts, taking those creditors who do not attend personally or by proxy at the meeting as having voted in favour of the resolution; and | | (b) | in relation to a special resolution sought under subsection (1)(b), a resolution approved in writing by a majority in number and at least three-fourths in value of the creditors who have proved their debts, taking those creditors who fail to assent to or dissent from the composition or scheme in writing as having assented to the resolution. [37/99] |
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| Annulment of bankruptcy order by certificate of Official Assignee where composition or scheme accepted by creditors |
| 95A.—(1) Where a composition or scheme is accepted by the creditors by a special resolution under section 95, the Official Assignee may annul the bankruptcy order by issuing a certificate of annulment. [37/99] | (2) Notice of every annulment under subsection (1) shall be given to the Registrar and be published in the Gazette and advertised in any local newspaper. [37/99] |
| (3) The Official Assignee shall, upon the application of a bankrupt or his creditor or any other interested person, issue to the applicant a copy of the certificate of annulment upon the payment of the prescribed fee. [37/99] |
| (4) A certificate of annulment issued under subsection (1) shall be binding on all the creditors so far as it relates to any debts due to them from the bankrupt and provable in bankruptcy. [37/99] |
| (5) The provisions of a composition or scheme under this section may be enforced by the court on an application by any person interested, and any contravention of or failure to comply with an order of the court made on such an application shall be deemed to be a contempt of court. [37/99] |
| (6) If default is made in payment of any instalment due under the composition or scheme, or if the court is satisfied that the composition or scheme cannot, in consequence of legal difficulties or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the bankrupt, or that the acceptance of the proposal by the creditors was obtained by fraud, the court may, if it thinks fit, on an application by the Official Assignee or any creditor, annul the composition or scheme by revoking the certificate of annulment, but without prejudice to the validity of any sale, disposition or payment duly made or thing duly done under or in pursuance of the composition or scheme. [37/99] |
| (7) Where the Official Assignee annuls a bankruptcy order under this section, any sale or other disposition of property, payment duly made or other things duly done by or under the authority of the Official Assignee or by the court shall be valid except that the property of the bankrupt shall revert to the bankrupt or, on an application by any person interested, vest in such person as the court may appoint and on such terms as the court may direct. [37/99] |
| (8) The court may include in its order such supplemental provisions as may be authorised by the rules. [37/99] |
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| Effect of composition or scheme |
| 96. A composition or scheme accepted under section 95 shall not be binding on any creditor so far as regards a debt or liability from which, under this Act, the bankrupt would not be discharged by an order of discharge in bankruptcy unless the creditor assents to the composition or scheme. [37/99] |
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| Effect of bankruptcy on antecedent transactions |
| Provisions as to second bankruptcy |
97.—(1) Where a second or subsequent bankruptcy order is made against a bankrupt, or where an order is made for the administration in bankruptcy of the estate of a deceased bankrupt, then for the purposes of any proceedings consequent upon any such order, the Official Assignee shall be deemed to be a creditor in respect of any unsatisfied balance of the debts provable in the last preceding bankruptcy against the property of the bankrupt in the subsequent bankruptcy.| (2) Where a second or subsequent bankruptcy order is made against a bankrupt, or where an order is made for the administration in bankruptcy of the estate of a deceased bankrupt, any property acquired by him since he was last adjudged bankrupt, which at the date when the subsequent application was made had not been distributed amongst the creditors in the last preceding bankruptcy, shall (subject to any disposition thereof made by the Official Assignee in that bankruptcy without knowledge of the making of the subsequent application) vest in the Official Assignee on account of the subsequent bankruptcy or administration in bankruptcy, as the case may be. [42/2005] |
| (3) Where the Official Assignee in any bankruptcy receives notice of a subsequent application in bankruptcy against the bankrupt or after his death of an application for the administration of his estate in bankruptcy, the Official Assignee shall hold any property then in his possession which has been acquired by the bankrupt since he was adjudged bankrupt until the subsequent application has been disposed of. [42/2005] |
| (4) If on a subsequent application a bankruptcy order or an order for the administration of the estate in bankruptcy is made, the Official Assignee shall hold all the property or the proceeds thereof (after deducting his costs and expenses) to the account of the subsequent bankruptcy, or administration in bankruptcy, as the case may be. [42/2005] |
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| Transactions at an undervalue |
98.—(1) Subject to this section and sections 100 and 102, where an individual is adjudged bankrupt and he has at the relevant time (as defined in section 100) entered into a transaction with any person at an undervalue, the Official Assignee may apply to the court for an order under this section.| (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not entered into that transaction. |
(3) For the purposes of this section and sections 100 and 102, an individual enters into a transaction with a person at an undervalue if —| (a) | he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration; | | (b) | he enters into a transaction with that person in consideration of marriage; or | | (c) | he enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the individual. |
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99.—(1) Subject to this section and sections 100 and 102, where an individual is adjudged bankrupt and he has, at the relevant time (as defined in section 100), given an unfair preference to any person, the Official Assignee may apply to the court for an order under this section.| (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not given that unfair preference. |
(3) For the purposes of this section and sections 100 and 102, an individual gives an unfair preference to a person if —| (a) | that person is one of the individual’s creditors or a surety or guarantor for any of his debts or other liabilities; and | | (b) | the individual does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the individual’s bankruptcy, will be better than the position he would have been in if that thing had not been done. |
|
| (4) The court shall not make an order under this section in respect of an unfair preference given to any person unless the individual who gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (3)(b). |
| (5) An individual who has given an unfair preference to a person who, at the time the unfair preference was given, was an associate of his (otherwise than by reason only of being his employee) shall be presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (4). |
| (6) The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of an unfair preference. |
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| Relevant time under sections 98 and 99 |
100.—(1) Subject to this section, the time at which an individual enters into a transaction at an undervalue or gives an unfair preference shall be a relevant time if the transaction is entered into or the preference given —| (a) | in the case of a transaction at an undervalue —| (i) | where the bankruptcy application on which the individual is adjudged bankrupt is based on a presumption referred to in section 62(d), within the period commencing 5 years before the day on which the relevant bankruptcy application is made and ending on the day of the making of the bankruptcy application on which the individual is adjudged bankrupt; or | | (ii) | in any other case, within the period of 5 years ending on the day of the making of the bankruptcy application on which the individual is adjudged bankrupt; |
| | (b) | in the case of an unfair preference which is not a transaction at an undervalue and which is given to a person who is an associate of the individual (otherwise than by reason only of being his employee) —| (i) | where the bankruptcy application on which the individual is adjudged bankrupt is based on a presumption referred to in section 62(d), within the period commencing 2 years before the day on which the relevant bankruptcy application is made and ending on the day of the making of the bankruptcy application on which the individual is adjudged bankrupt; or | | (ii) | in any other case, within the period of 2 years ending on the day of the making of the bankruptcy application on which the individual is adjudged bankrupt; or |
| | (c) | in any other case of an unfair preference which is not a transaction at an undervalue —| (i) | where the bankruptcy application on which the individual is adjudged bankrupt is based on a presumption referred to in section 62(d), within the period commencing 6 months before the day on which the relevant bankruptcy application is made and ending on the day of the making of the bankruptcy application on which the individual is adjudged bankrupt; or | | (ii) | in any other case, within the period of 6 months ending on the day of the making of the bankruptcy application on which the individual is adjudged bankrupt. [42/2005; 6/2009] |
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(2) Where an individual enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in subsection (1)(a), (b) or (c), that time is not a relevant time for the purposes of sections 98 and 99 unless the individual —| (a) | is insolvent at that time; or | | (b) | becomes insolvent in consequence of the transaction or preference. |
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| (3) Where a transaction is entered into at an undervalue by an individual with a person who is an associate of his (otherwise than by reason only of being his employee), the requirements under subsection (2) shall be presumed to be satisfied unless the contrary is shown. |
(4) For the purposes of subsection (2), an individual shall be insolvent if —| (a) | he is unable to pay his debts as they fall due; or | | (b) | the value of his assets is less than the amount of his liabilities, taking into account his contingent and prospective liabilities. |
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| (5) In this section, “relevant bankruptcy application” means the bankruptcy application made against an individual that resulted in the debt repayment scheme referred to in section 62(d) in respect of that individual. [6/2009] |
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101.—(1) For the purposes of sections 99 and 100, any question whether a person is an associate of another person shall be determined in accordance with this section.| (2) A person is an associate of an individual if that person is the individual’s spouse, or is a relative, or the spouse of a relative of the individual or his spouse. |
| (3) A person is an associate of an individual with whom he is in partnership, and of the spouse or a relative of any individual with whom he is in partnership. |
| (4) A person is an associate of an individual whom he employs or by whom he is employed and for this purpose, any director or other officer of a company shall be treated as employed by that company. |
| (5) A person in his capacity as trustee of a trust is an associate of an individual if the beneficiaries of the trust include, or the terms of the trust confer a power that may be exercised for the benefit of, that individual or an associate of that individual. |
| (6) A company is an associate of an individual if that individual has control of it or if that individual and persons who are his associates together have control of it. |
(7) For the purposes of this section, a person is a relative of an individual if he is that individual’s brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, treating —| (a) | any relationship of the half blood as a relationship of the whole blood and the step-child or adopted child of any person as his child; and | | (b) | an illegitimate child as the legitimate child of his mother and reputed father. |
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| (8) References in this section to a spouse shall include a former spouse. |
(9) For the purposes of this section, an individual shall be taken to have control of a company if —| (a) | the directors of the company or of another company which has control of it (or any of them) are accustomed to act in accordance with his directions or instructions; or | | (b) | he is entitled to exercise, or control the exercise of, one-third or more of the voting power at any general meeting of the company or of another company which has control of it, |
| and where 2 or more persons together satisfy paragraph (a) or (b), they shall be taken to have control of the company. |
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| (10) In this section, “company” includes any body corporate (whether incorporated in Singapore or elsewhere); and references to directors and other officers of a company and to voting power at any general meeting of a company shall have effect with any necessary modifications. |
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| Orders under sections 98 and 99 |
102.—(1) Without prejudice to the generality of sections 98(2) and 99(2), an order under either of those sections with respect to a transaction or preference entered into or given by an individual who is subsequently adjudged bankrupt may, subject to this section —| (a) | require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the Official Assignee; | | (b) | require any property to be so vested if it represents in any person’s hands the application of the proceeds of sale of property so transferred or of money so transferred; | | (c) | release or discharge (in whole or in part) any security given by the individual; | | (d) | require any person to pay, in respect of benefits received by him from the individual, such sums to the Official Assignee as the court may direct; | | (e) | provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction or by the giving of the preference to be under such new or revived obligations to that person as the court thinks appropriate; | | (f) | provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference; and | | (g) | provide for the extent to which any person whose property is vested by the order in the Official Assignee, or on whom obligations are imposed by the order, is to be able to prove in the bankruptcy for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the unfair preference. |
| (2) An order under section 98 or 99 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the individual in question entered into the transaction or, as the case may be, the person to whom the unfair preference was given. |
(3) An order under section 98 or 99 shall not —| (a) | prejudice any interest in property which was acquired from a person other than that individual and was acquired in good faith, for value and without notice of the relevant circumstances, or prejudice any interest deriving from such an interest; or | | (b) | require a person who received a benefit from the transaction or unfair preference in good faith, for value and without notice of the relevant circumstances to pay a sum to the Official Assignee, except where he was a party to the transaction or the payment is to be in respect of an unfair preference given to that person at a time when he was a creditor of that individual. |
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| (4) Any sums required to be paid to the Official Assignee in accordance with an order under section 98 or 99 shall be comprised in the bankrupt’s estate. |
(5) For the purposes of this section, the relevant circumstances, in relation to a transaction or an unfair preference, shall be —| (a) | the circumstances by virtue of which an order under section 98 or 99 could be made in respect of the transaction or preference if the individual in question were adjudged bankrupt within the particular period after the transaction is entered into or the unfair preference given; and | | (b) | if that period has expired, the fact that that individual has been adjudged bankrupt within that period. |
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| Extortionate credit transactions |
103.—(1) This section shall apply where a person who is adjudged bankrupt is or has been a party to a transaction for or involving the provision to him of credit.| (2) The court may, on the application of the Official Assignee, make an order with respect to the transaction if the transaction is or was extortionate and was entered into within 3 years before the commencement of the bankruptcy. |
(3) For the purposes of this section, a transaction shall be extortionate if, having regard to the risk accepted by the person providing the credit —| (a) | the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit; or | | (b) | it is harsh and unconscionable or substantially unfair, |
| and it shall be presumed, unless the contrary is proved, that the transaction was extortionate. |
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(4) An order under this section may contain one or more of the following:| (a) | provision setting aside the whole or part of any obligation created by the transaction; | | (b) | provision varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held; | | (c) | provision requiring any person who is or was party to the transaction to pay the Official Assignee any sums paid to that person; | | (d) | provision requiring any person to surrender to the Official Assignee any property held by him as security for the purposes of the transaction; | | (e) | provision directing accounts to be taken between any persons. |
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| (5) Any sums or property required to be paid or surrendered to the Official Assignee in accordance with an order under this section shall be comprised in the bankrupt’s estate. |
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| Avoidance of general assignment of book debts |
104.—(1) This section shall apply where a person engaged in any business makes a general assignment to another person of his existing or future book debts, or any class of them, and is subsequently adjudged bankrupt.| (2) The assignment shall be void against the Official Assignee as regards book debts which were not paid before the making of the bankruptcy application, unless the assignment has been registered under the Bills of Sale Act (Cap. 24). [42/2005] |
(3) For the purposes of this section —| “assignment” includes an assignment by way of security or charge on book debts; |
“general assignment” does not include —| (a) | an assignment of book debts due at the date of the assignment from specified debtors or of debts becoming due under specified contracts; or | | (b) | an assignment of book debts included either in a transfer of a business made in good faith and for value or in an assignment of assets for the benefit of creditors generally. |
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| (4) For the purposes of registration under the Bills of Sale Act (Cap. 24), an assignment of book debts shall be treated as if it were a bill of sale given otherwise than by way of security for the payment of a sum of money. |
| (5) The provisions of the Bills of Sale Act with respect to the registration of bills of sale shall apply accordingly with such necessary modifications as may be made by rules under that Act. |
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| Restriction of rights of creditor under execution or attachment |
105.—(1) Where the creditor of a bankrupt has issued execution against the goods or lands of the bankrupt or has attached any debt due or property belonging to him, the creditor shall not be entitled to retain the benefit of the execution or attachment against the Official Assignee unless he has completed the execution or attachment before the date of the bankruptcy order, except that —| (a) | a person who purchases in good faith under a sale by the Sheriff any goods of a bankrupt on which an execution has been levied shall in all cases acquire a good title to them against the Official Assignee; and | | (b) | the rights conferred by this subsection on the Official Assignee may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. |
(2) For the purposes of this Act —| (a) | an execution against goods is completed by seizure and sale; | | (b) | an attachment of a debt is completed by receipt of the debt; and | | (c) | an execution against land or any interest therein is completed by registering under any written law relating to the registration of land a writ of seizure and sale attaching the interest of the bankrupt in the land described therein. |
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| Duties of Sheriff as to property taken in execution |
106.—(1) Where any property of a debtor is taken in execution, then, if before the completion of the execution notice is given to the Sheriff that a bankruptcy order has been made against the debtor, the Sheriff shall deliver the property or the possession thereof and any such moneys to the Official Assignee.| (2) The costs of and incidental to the execution under subsection (1) shall be a first charge on the property or moneys, and the Official Assignee may sell the property or any adequate part thereof for the purpose of satisfying the charge. |
| (3) Where a writ of seizure and sale has been issued in respect of a judgment for a sum exceeding $2,000, the Sheriff shall hold all moneys coming to his hands under the writ of seizure and sale for 14 days from the receipt thereof. |
(4) If within the time referred to in subsection (3) —| (a) | notice is served on the Sheriff of a bankruptcy application having been made against or by the debtor; and | | (b) | a bankruptcy order is made against the debtor thereon or on any other application of which the Sheriff has notice, |
| the Sheriff shall deduct the costs of and incidental to the execution and pay the balance to the Official Assignee, who shall be entitled to retain the same as against the execution creditor. |
[42/2005] |
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| Possession, control and realisation of bankrupt’s property |
| Possession of property by Official Assignee |
107.—(1) The Official Assignee shall forthwith after the bankruptcy order take possession of —| (a) | the deeds, books and documents which relate to the bankrupt’s estate or affairs and which belong to him or are under his control; and | | (b) | all other parts of his property capable of manual delivery. |
| (2) The Official Assignee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position as if he were a receiver of the property appointed by the court, and the court may on his application enforce the acquisition or retention accordingly. |
| (3) Where any part of the property of the bankrupt consists of stock, shares in ships, shares or any other property transferable in the books of any company, office or person, the Official Assignee may exercise the right to transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt. |
| (4) Where any part of the property of the bankrupt consists of things in action, those things shall be deemed to have been duly assigned to the Official Assignee. |
| (5) Any banker or agent of the bankrupt or any other person who holds any property to the account of, or for, the bankrupt shall pay and deliver to the Official Assignee all moneys and securities in his possession or under his control which he is not by law entitled to retain as against the bankrupt or the Official Assignee. |
| (6) Any person who fails to comply with subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both. |
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| Seizure of bankrupt’s property held by bankrupt or other person |
108.—(1) At any time after a bankruptcy order has been made, the Official Assignee or any person authorised by him may take an inventory of and seize any property comprised in the bankrupt’s estate which is, or any books, papers or records relating to the bankrupt’s estate or affairs which are, in the possession or under the control of the bankrupt or any other person who is required to deliver the property, books, papers or records to the Official Assignee.| (2) The Official Assignee or any person authorised by him may, for the purposes of taking an inventory of or seizing any property comprised in the bankrupt’s estate or any books, papers or records relating to the bankrupt’s estate or affairs, break open any premises where the bankrupt or anything that may be seized under subsection (1) is or is believed to be and any receptacle of the bankrupt which contains or is believed to contain anything that may be so seized. |
| (3) If, after a bankruptcy order has been made, the court is satisfied that any property comprised in the bankrupt’s estate is, or any books, papers or records relating to the bankrupt’s estate or affairs are, concealed in any premises not belonging to the bankrupt, the court may issue a warrant authorising any public officer to search those premises for the property, books, papers or records. |
| (4) A warrant under subsection (3) shall not be executed except in the prescribed manner and in accordance with its terms. |
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| Appropriation of portion of pay or salary to creditors |
109.—(1) Where the bankrupt is an officer of the Singapore Armed Forces or a public officer or otherwise employed or engaged in the public service of the Government, the Official Assignee shall receive for distribution amongst the creditors so much of the bankrupt’s pay or salary as the court, on the application of the Official Assignee, directs.(2) Where a bankrupt is —| (a) | in receipt of a salary or income other than as mentioned in subsection (1); or | | (b) | entitled to any half-pay, pension or compensation granted by the Government or any other employer, |
| the court shall, on the application of the Official Assignee, subject to any written law relating to pensions, make such order as it may think just for the payment of the salary, income, half-pay, pension or compensation or of any part thereof to the Official Assignee, to be applied by him in such manner as the court directs. |
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| (3) Nothing in this section shall be deemed to abrogate the right of the Government to dismiss a bankrupt or to declare the half-pay, pension or compensation of any bankrupt to be forfeited. |
| (4) In fixing the amount to be received by the Official Assignee under this section, the court shall, without prejudice to subsection (5), have regard to the scale of appropriation of salary in any general rule made for the purposes of this section by the Minister under section 166. |
| (5) The court may, in its discretion, fix a larger or smaller amount than the amount provided in the scale. |
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| Disclaimer of onerous property |
110.—(1) Where any part of the property of the bankrupt consists of —| (a) | land of any tenure burdened with onerous covenants; | | (b) | shares or stock in companies; | | (c) | unprofitable contracts; or | | (d) | any other property that is unsaleable or not readily saleable by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, |
| the Official Assignee, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, but subject to this section, may, by writing signed by him, at any time disclaim the property. |
(2) The disclaimer shall —| (a) | operate to determine as from the date of disclaimer the rights, interests and liabilities of the bankrupt and his property in or in respect of the property disclaimed; and | | (b) | discharge the Official Assignee from all personal liability in respect of the property disclaimed as from the date when the property vested in him. |
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| (3) The disclaimer shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the Official Assignee from liability, affect the rights or liabilities of any other person. |
| (4) The Official Assignee shall not be entitled to disclaim a lease without the leave of the court, except in any case which may be prescribed or where all persons interested in the property consent to the disclaimer. |
(5) The court may, before or on granting leave —| (a) | require such notices to be given to persons interested and impose such terms as a condition of granting leave; and | | (b) | make such orders with respect to fixtures, tenant’s improvements and other matters arising out of the tenancy, |
| as the court thinks just. |
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(6) The Official Assignee shall not be entitled to disclaim any property, in pursuance of this section, in any case where —| (a) | an application in writing has been made to him by any person interested in the property, requiring him to decide whether he will disclaim or not; and | | (b) | he has for a period of 21 days after the receipt of the application, or such extended period as is allowed by the court, declined or neglected to give notice whether he disclaims the property or not, |
| and in the case of a contract, if the Official Assignee, after such application as aforesaid, does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it. |
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| (7) The court may, on the application of any person who is, as against the Official Assignee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to, either party of damages for the non-performance of the contract or otherwise as to the court seems equitable. |
| (8) Any damages payable under the order made under subsection (7) to any person may be proved by him as a debt under the bankruptcy. |
(9) The court may —| (a) | on an application by any person either claiming any interest in any disclaimed property or under any liability not discharged by this Act in respect of any disclaimed property; | | (b) | on hearing such persons as the court may think fit; and | | (c) | on such terms as the court may think just, |
| make an order for the vesting of the property in or delivery thereof to — |
| (i) | any person entitled thereto; | | (ii) | any person to whom it seems just that the same should be delivered by way of compensation for such liability as aforesaid; or | | (iii) | a trustee for any person referred to in sub-paragraph (i) or (ii). |
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| (10) On the vesting order being made under subsection (9), the property comprised therein shall vest accordingly in the person therein named in that behalf, without any conveyance or assignment for the purpose. |
| (11) Where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as mortgagee by demise, except upon the terms of making the person subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy application was made. [42/2005] |
| (12) Any mortgagee or under-lessee declining to accept a vesting order upon those terms shall be excluded from all interest in and security upon the property. |
| (13) If there is no person claiming under the bankrupt who is willing to accept an order upon those terms, the court shall have power to vest the bankrupt’s estate and interest in the property in any person liable (either personally or in a representative character, and either alone or jointly with the bankrupt) to perform the lessee’s covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the bankrupt. |
| (14) Any person sustaining loss or damage by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the loss or damage, and may accordingly prove the same as a debt under the bankruptcy. |
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| Power of Official Assignee to deal with property |
111. Subject to this Act, the Official Assignee may —| (a) | sell all or any part of the property of a bankrupt, including the goodwill of his business, if any, and the book debts due or accruing due to him, by tender, public auction or private contract, with power to transfer the whole thereof to any person or to sell the same in parcels; | | (b) | give receipts for any money received by him, being receipts which effectually discharge the person paying the money from all responsibility in respect of the application thereof; | | (c) | prove, rank, claim, and draw a dividend in respect of any debt due to the bankrupt; | | (d) | exercise any power, the capacity to exercise which is vested in the Official Assignee under this Act, and execute any power of attorney, deeds and other instrument for the purpose of carrying into effect the provisions of this Act; and | | (e) | deal with any property to which the bankrupt is beneficially entitled as tenant in tail, or other owner of an estate of inheritance less than an estate in fee simple, in the same manner as the bankrupt might have dealt with it; and any such dealing with any property to which the bankrupt is, before his discharge, so entitled shall, although the bankrupt is dead at the time of that dealing, be as valid and have the same operation as though the bankrupt were then alive. |
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| General powers of Official Assignee |
112. The Official Assignee may exercise any of the following powers:| (a) | carry on any business of the bankrupt so far as is necessary for winding it up beneficially; | | (b) | bring, institute or defend any action or legal proceedings relating to the property of the bankrupt; | | (c) | employ an advocate and solicitor to take any proceedings or do any business; | | (d) | accept, as the consideration for the sale of any property of the bankrupt, a sum of money payable at a future time, subject to such stipulations as to security or otherwise as he thinks fit; | | (e) | mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts; | | (f) | refer any dispute to arbitration, or compromise all debts, claims and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist, between the bankrupt and any person who may have incurred any liability to the bankrupt, on the receipt of such sums payable at such times, and generally on such terms as are agreed on; | | (g) | make such compromise or other arrangement as is thought expedient with creditors or persons claiming to be creditors in respect of any debts provable under the bankruptcy; | | (h) | make such compromise or other arrangement as is thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the Official Assignee by any person or by the Official Assignee on any person; and | | (i) | divide in its existing form, amongst the creditors according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold. |
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| Power to appoint special manager |
113.—(1) The Official Assignee may, if satisfied that the nature of the bankrupt’s estate or business or the interests of the creditors generally require the appointment of a special manager of the estate or business other than the Official Assignee, appoint a manager thereof accordingly to act, and with such powers, including any of the powers of a receiver, as are entrusted to him by the Official Assignee.| (2) The bankrupt may be appointed special manager. |
| (3) A special manager shall give such security and account in such manner as the Official Assignee may direct. |
| (4) The special manager shall receive such remuneration as the Official Assignee may determine. |
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| Power to allow bankrupt to manage property |
114.—(1) The Official Assignee may appoint the bankrupt himself to superintend the management of his property or any part of the property, or to carry on his trade (if any) for the benefit of his creditors, and in any other respect to aid in administering the property in such manner and on such terms as the Official Assignee directs.| (2) The Official Assignee may make such allowance as he may think just to the bankrupt out of his property for the support of the bankrupt and his family, or in consideration of his service if he is engaged in winding up his estate, but the court may reduce the allowance and limit the time for which it may be made. |
| (3) Where the bankrupt has died, the Official Assignee may make an allowance to members of the bankrupt’s family for their support. |
| (4) The Official Assignee may also make an allowance to defray the funeral expenses of the bankrupt. |
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| Re-direction of bankrupt’s letters, etc. |
| 115.—(1) Where a bankruptcy order has been made, the Official Assignee may from time to time direct a postal licensee under the Postal Services Act (Cap. 237A) to re-direct and send or deliver to the Official Assignee or otherwise any postal article which would otherwise be sent or delivered by it to the bankrupt at such place or places as may be specified in the direction. [42/99; 34/2007] | (2) A direction under this section shall have effect for such period, not exceeding 3 months, as may be specified in the direction. |
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| Power to impound passport, etc., of bankrupt |
116.—(1) The Official Assignee may, if he thinks it necessary for the purposes of ensuring that a bankrupt does not leave Singapore during the administration of his estate, issue a direction to the Controller of Immigration to request that the bankrupt be prevented from leaving Singapore.| (2) Subject to any order issued or made under any written law relating to banishment or immigration, the Controller of Immigration shall pursuant to the direction under subsection (1) take, or cause to be taken by any immigration officer, such measures as may be necessary to prevent the bankrupt named in the direction from leaving Singapore, including the detention of the bankrupt’s passport, certificate of identity or travel document authorising the bankrupt to leave or enter Singapore. |
| (3) Where the Controller of Immigration has detained the passport, certificate of identity or other travel document of a bankrupt under subsection (2), the Controller shall forthwith forward the passport, certificate of identity or travel document to the Official Assignee. |
| (4) Notwithstanding subsections (1), (2) and (3), the Official Assignee may, if he thinks fit, detain any passport, certificate of identity or other travel document authorising the bankrupt to leave or enter Singapore. |
| (5) The Official Assignee may, if he thinks fit, retain or return to the bankrupt the passport, certificate of identity or travel document forwarded to him by the Controller of Immigration under subsection (3) or detained by him under subsection (4). |
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| Distribution by means of dividend |
117.—(1) Whenever the Official Assignee has sufficient funds in hand for the purpose, he shall, subject to the retention of such sums as may be necessary for the expenses of the bankruptcy, declare and distribute dividends among the creditors in respect of the debts which the creditors have respectively proved.| (2) The Official Assignee shall give notice of his intention to declare and distribute a dividend. |
| (3) Where the Official Assignee has declared a dividend, he shall give notice of the dividend and of how he proposes to distribute it. |
| (4) The notice given under subsection (3) shall contain the prescribed particulars of the bankrupt’s estate. |
(5) In the calculation and distribution of a dividend, the Official Assignee shall make provision —| (a) | for any provable debt which appears to him to be due to any person who, by reason of the distance of his place of residence, may not have had sufficient time to tender and establish his proof; | | (b) | for any provable debt which is the subject of any claim which has not yet been determined; and | | (c) | for disputed proofs and claims. |
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| (6) No dividend shall be paid to any creditor which does not amount to $50. [6/2009] |
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| Claims by unsatisfied creditors |
118.—(1) A creditor who has not proved his debt before the declaration of any dividend shall not be entitled to disturb, by reason that he has not participated in it, the distribution of that dividend or any other dividend declared before his debt was proved.| (2) When a creditor has proved his debt, he shall be entitled to be paid out of any money for the time being available for the payment of any further dividend, any dividend or dividends which he has failed to receive. |
| (3) Any dividend or dividends payable under subsection (2) shall be paid before that money is applied to the payment of any such further dividend. |
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119.—(1) When the Official Assignee has realised all the bankrupt’s estate or so much of it as can, in the opinion of the Official Assignee, be realised without needlessly protracting the proceedings in bankruptcy, he shall give notice in the prescribed manner of his intention to declare a final dividend.| (2) The notice under subsection (1) shall contain the prescribed particulars and shall require claims against the bankrupt’s estate to be established by a date (referred to in this section as the final date) specified in the notice. |
| (3) The court may, on the application of any person, postpone the final date. |
(4) After the final date, the Official Assignee shall —| (a) | defray any outstanding expenses of the bankruptcy out of the bankrupt’s estate; and | | (b) | if he intends to declare a final dividend, declare and distribute that dividend without regard to the claim of any person in respect of a debt not already proved in the bankruptcy. |
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| Joint and separate dividends |
120.—(1) Where one partner of a firm is adjudged bankrupt, a creditor to whom the bankrupt is indebted jointly with the other partners of the firm, or any of them, shall not receive any dividend out of the separate property of the bankrupt until all the separate creditors have received the full amount of their respective debts.| (2) Where joint and separate properties are being administered, dividends of the joint and separate properties shall, subject to any order to the contrary that is made by the court on the application of the Official Assignee or any person interested, be declared together. |
| (3) The expenses of and incidental to the dividends shall be fairly apportioned by the Official Assignee between the joint and separate properties, regard being had to the work done for and the benefit received by each property. |
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121.—(1) No action for a dividend shall lie against the Official Assignee.| (2) If the Official Assignee refuses to pay any dividend, the court may, if it thinks fit, order the Official Assignee to pay the dividend, and also to pay out of the Consolidated Fund interest thereon for the period that it is withheld and the costs of the application to the court. |
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| Right of bankrupt to surplus |
| 122.—(1) The bankrupt shall be entitled to any surplus remaining after payment in full of his creditors, with interest as by this Act provided, and of the costs, charges and expenses of the proceedings under the bankruptcy application. [42/2005] (2) Notwithstanding subsection (1), the court may make an order directing the Official Assignee not to pay the surplus or part thereof to the bankrupt if —| (a) | the Attorney-General applies for an order under this section; and | | (b) | the court is satisfied that —| (i) | proceedings under any written law dealing with confiscation of the proceeds of crime are pending; and | | (ii) | the property of the bankrupt may become subject to a confiscation order or be required to meet some other order made on those proceedings. |
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| (3) The court may, on an application, vary or revoke an order made under subsection (2). |
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