23.—(1) When proceedings are brought in any court by a licensee for the recovery of a loan or the enforcement of a contract for a loan or any guarantee or security given for a loan, and the court is satisfied that the interest or late interest charged in respect of the loan is excessive and that the transaction is unconscionable or substantially unfair, the court shall re-open the transaction and take an account between the licensee and the person sued.
(2) In taking an account under subsection (1), the court may re-open any account already taken between the parties to the proceedings and relieve the person sued from payment of any sum in excess of the sum adjudged by the court to be fairly due in respect of such principal, interest and late interest as the court, having regard to the risk and all the facts and circumstances of the case (including facts and circumstances arising or coming to the knowledge of any party after the date of the transaction), may determine to be reasonable.
(3) In relieving the person sued under subsection (2), the court may, without prejudice to its power to grant any further or other equitable relief —
(a)
order the licensee to repay any excess paid to him;
(b)
set aside either wholly or in part, or revise or alter, any guarantee or security given or the contract for the loan; and
(c)
if the licensee has disposed of the security, order the licensee to indemnify the borrower or other person sued for the loss of the security.
(4) Any court shall have and may exercise the powers referred to in subsections (1), (2) and (3) in relation to proceedings for relief brought by a borrower, a surety or other person liable to repay a loan to a licensee, notwithstanding —
(a)
any provision or agreement to the contrary;
(b)
that the time for repayment of the loan or any instalment thereof may not have arrived; and
(c)
that the licensee’s right of action for the recovery of the loan is barred.
(5) Where a licensee has filed, in the bankruptcy of a borrower or surety, a proof of debt arising from a loan granted by him, the Official Assignee may exercise such powers as may be exercised by a court under this section when assessing whether the debt or liability is proved and its value.
(6) Where in any proceedings in court referred to in subsection (1) or where proof of debt has been filed as referred to in subsection (5), it is found that the interest or late interest charged on any loan exceeds such maximum rate of interest or late interest as may be prescribed for the loan, the court or the Official Assignee, as the case may be, shall presume for the purposes of this section, unless the contrary is proved, that the interest or late interest charged in respect of the loan is excessive and that the transaction is unconscionable or substantially unfair.
(7) Subsection (6) shall be without prejudice to the powers of a court under this section where the court is satisfied that the interest or late interest charged under the circumstances, although not exceeding such maximum rate of interest or late interest as may be prescribed for the loan, is excessive or that the transaction is unconscionable or substantially unfair.
(8) For the purposes of subsections (6) and (7) —
(a)
the court shall, when determining whether the interest or late interest charged in respect of any loan exceeds such maximum rate of interest or late interest as may be prescribed for the loan, take no account of the permitted fees as agreed between the licensee and the borrower; and
(b)
the Minister may prescribe different maximum rates of interest to apply to different classes or descriptions of borrowers or loans.
(9) Nothing in this section shall be construed as derogating from —