PART 16 | PROCEEDINGS IN BANKRUPTCY |
| Division 1 — Bankruptcy applications and bankruptcy orders |
| Persons who may make creditor’s bankruptcy application |
307.—(1) Subject to this Part, a creditor’s bankruptcy application may be made —| (a) | against an individual by —| (i) | one of the individual’s creditors or jointly by more than one of them; or | | (ii) | the nominee supervising the implementation of, or any person (other than the individual) who is for the time being bound by, a voluntary arrangement proposed by the individual and approved under Part 14; or |
| | (b) | against a firm by —| (i) | one of the firm’s creditors or jointly by more than one of them, if such creditor or creditors are entitled under paragraph (a)(i) to make a creditor’s bankruptcy application against any one of the partners in the firm in respect of a partnership debt; or | | (ii) | the nominee supervising the implementation of, or any person (other than the partners in the firm) who is for the time being bound by, a voluntary arrangement proposed by the firm and approved under Part 14. |
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| (2) A creditor who is entitled to make a bankruptcy application against a firm under subsection (1)(b) may make a bankruptcy application against any of the partners in the firm without including the others. |
| (3) Every creditor’s bankruptcy application must be in the prescribed form and be supported by an affidavit of the creditor or of some person on the creditor’s behalf having knowledge of the facts. |
| (4) Every creditor’s bankruptcy application must be served in the manner prescribed. |
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| Persons who may make debtor’s bankruptcy application |
308.—(1) Subject to this Part, a debtor’s bankruptcy application may be made —| (a) | against an individual debtor by himself or herself; or | | (b) | against a firm by all the partners in the firm or by a majority of such partners who are residing in Singapore at the time of the making of the application. |
(2) A debtor’s bankruptcy application must be in the prescribed form and be supported by an affidavit to which is exhibited —| (a) | where the debtor is an individual, a statement of the debtor’s affairs containing such particulars of the debtor’s assets, creditors, debts and other liabilities as may be prescribed; | | (b) | where the debtor is a firm, a statement of —| (i) | the firm’s affairs containing such particulars of its assets, creditors, debts and other liabilities as may be prescribed; and | | (ii) | the affairs of each of the partners in the firm by whom the application is made containing such particulars of each partner’s assets, creditors, debts and other liabilities as may be prescribed; and |
| | (c) | a statement containing such other information as may be prescribed. |
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| 309. Subject to this Part, the Court may make a bankruptcy order on a bankruptcy application made under section 307 or 308. |
| Conditions to be satisfied in respect of debtor |
310.—(1) No bankruptcy application may be made to the Court under section 307(1)(a) or 308(1)(a) against an individual debtor unless the debtor —| (a) | is domiciled in Singapore; | | (b) | has property in Singapore; or | | (c) | has, at any time within the period of one year immediately preceding the date of the making of the application —| (i) | been ordinarily resident or has had a place of residence in Singapore; or | | (ii) | carried on business in Singapore. |
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(2) No bankruptcy application may be made to the Court under section 307(1)(b) or 308(1)(b) against a firm unless —| (a) | at least one of the partners in the firm —| (i) | is domiciled in Singapore; | | (ii) | has property in Singapore; or | | (iii) | has, at any time within the period of one year immediately preceding the date of the making of the application, been ordinarily resident or has had a place of residence in Singapore; or |
| | (b) | the firm has, at any time within the period of one year immediately preceding the date of the making of the application, carried on business in Singapore. |
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(3) The reference in subsection (1)(c)(ii) to an individual carrying on business in Singapore includes —| (a) | the carrying on of business in Singapore by a firm in which the individual is a partner; and | | (b) | the carrying on of business in Singapore by an agent or a manager for the individual or for such a firm. |
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| Grounds of bankruptcy application |
311.—(1) Subject to section 314, no bankruptcy application may be made to the Court in respect of any debt or debts unless at the time the application is made —| (a) | the amount of the debt, or the aggregate amount of the debts, is not less than $15,000; | | (b) | the debt or each of the debts is for a liquidated sum payable to the applicant creditor immediately; | | (c) | the debtor is unable to pay the debt or each of the debts; and | | (d) | where the debt or each of the debts is incurred outside Singapore, such debt is payable by the debtor to the applicant creditor by virtue of a judgment or an award which is enforceable by execution in Singapore. |
| (2) The Minister may, by order in the Gazette, amend subsection (1)(a) by substituting a different sum for the sum for the time being specified in that provision. |
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| Presumption of inability to pay debts |
312. For the purposes of a creditor’s bankruptcy application, a debtor is, until the debtor proves to the contrary, presumed to be unable to pay any debt within the meaning of section 311(1)(c) if the debt is immediately payable and any one of the following applies:| (a) | the applicant creditor to whom the debt is owed has served on the debtor in the prescribed manner, a statutory demand, and —| (i) | at least 21 days have elapsed since the statutory demand was served; and | | (ii) | the debtor has neither complied with it nor applied to the Court to set it aside; |
| | (b) | execution issued against the debtor in respect of a judgment debt owed to the applicant creditor has been returned unsatisfied in whole or in part; | | (c) | the debtor has departed from or remained outside Singapore with the intention of defeating, delaying or obstructing a creditor in the recovery of the debt; | | (d) | the Official Assignee has —| (i) | issued a certificate of inapplicability of a debt repayment scheme under section 299; | | (ii) | issued a certificate of failure of a debt repayment scheme under section 300(1); or | | (iii) | revoked a certificate of completion of a debt repayment scheme under section 302(1), |
| in respect of the debtor within 90 days immediately preceding the date on which the bankruptcy application is made, and the applicant creditor had proved the debt under that debt repayment scheme. |
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| Where applicant for bankruptcy order is secured creditor |
313.—(1) Where the applicant for a bankruptcy order is a secured creditor of the debtor, the applicant must in the application —| (a) | state that the applicant is willing, in the event of a bankruptcy order being made, to give up the security for the benefit of the other creditors of the bankrupt; or | | (b) | give an estimate of the value of the security, in which case the applicant may to the extent of the balance of the debt due to the applicant, after deducting the value so estimated, be admitted as a creditor in the same manner as if the applicant were an unsecured creditor. |
(2) Where an applicant for a bankruptcy order who is a secured creditor of the debtor fails to disclose the applicant’s security in the application, the applicant is deemed to have given up the security for the benefit of the other creditors of the debtor and upon the making of a bankruptcy order —| (a) | the applicant is not entitled to enforce the security against the estate of the bankrupt or to retain any proceeds from the realisation of the security; and | | (b) | the applicant must execute such document of release as is required by the Official Assignee or account and pay over to the Official Assignee all proceeds from any realisation of the security. |
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| (3) Where any secured creditor fails to execute any document of release as is required by the Official Assignee under subsection (2)(b), the Official Assignee may execute the document on behalf of the secured creditor, and the execution of the document by the Official Assignee has the same effect as the execution of that document by the secured creditor. |
| (4) Any secured creditor who fails to account or pay over to the Official Assignee the proceeds from any realisation of the security under subsection (2)(b) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 3 years or to both. |
| (5) Any fine imposed under subsection (4) is deemed to be part of the property of the bankrupt and vests in the Official Assignee for the purposes of this Act. |
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| Expedited bankruptcy application |
314. A creditor’s bankruptcy application which relies on a statutory demand may be made before the end of the period of 21 days mentioned in section 312(a), if —| (a) | there is a serious possibility that the debtor’s property, or the value of all or any of the debtor’s property, will be significantly diminished during that period; and | | (b) | the application contains a statement to that effect. |
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| Power of Court to stay or dismiss proceedings on bankruptcy application |
315.—(1) The Court may at any time, for sufficient reason, make an order staying the proceedings on a bankruptcy application, either altogether or for a limited time, on such terms and conditions as the Court thinks just.| (2) Without affecting subsection (1), where it appears to the Court that the person making a bankruptcy application has contravened any of the provisions of this Act or any rules in relation to proceedings on a bankruptcy application, the Court may, in its discretion, dismiss the application instead of staying any proceedings on the application under that subsection. |
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| Proceedings on creditor’s bankruptcy application |
316.—(1) The Court hearing a creditor’s bankruptcy application must not make a bankruptcy order on the application unless the Court is satisfied that —| (a) | the debt or any one of the debts in respect of which the application is made is a debt which, having been payable at the date of the application, has neither been paid nor secured or compounded for; and | | (b) | where the debtor does not appear at the hearing, the application has been duly served on the debtor. |
| (2) Where a creditor’s bankruptcy application which relies on a statutory demand is made, pursuant to section 314, before 21 days have elapsed after the statutory demand was served, the Court hearing the application must not make a bankruptcy order until at least 21 days have elapsed after the statutory demand was served. |
(3) The Court may dismiss the application if —| (a) | it is not satisfied with the proof of the applicant creditor’s debt or debts; | | (b) | it is not satisfied with the proof of the service of the application on the debtor; | | (c) | it is satisfied that the debtor is able to pay all of the debtor’s debts; | | (d) | it is satisfied that the debtor has made an offer to secure or compound for the applicant creditor’s debt the acceptance of which offer would have required the dismissal of the application and the offer has been unreasonably refused by the applicant creditor; or | | (e) | it is satisfied that for other sufficient cause no order ought to be made on the application. |
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| (4) In determining for the purposes of subsection (3)(c) whether the debtor is able to pay all of the debtor’s debts, the Court is to take into account the debtor’s contingent and prospective liabilities. |
(5) When a bankruptcy application has been made against a debtor on the ground that the debtor —| (a) | has failed to pay a judgment debt, and there is pending an appeal from or an application to set aside, the judgment or order by virtue of which the judgment debt is payable; or | | (b) | has failed to comply with a statutory demand, and there is pending an application to set aside the statutory demand, |
| the Court may, if it thinks fit, stay or dismiss the application. |
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(6) Where the debtor appears at the hearing of the application and denies that the debtor is —| (a) | indebted to the applicant; or | | (b) | indebted to such an amount as would justify the applicant making a bankruptcy application against him, |
| the Court may, subject to subsection (7), stay all proceedings on the application for such time as may be required for trial of the question relating to the debt. |
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(7) The Court may not order any stay of proceedings under subsection (6) unless the debtor furnishes such security as the Court may order for payment to the applicant of —| (a) | any debt which may be established against the debtor in due course of law; and | | (b) | the costs of establishing the debt. |
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| (8) Where proceedings are stayed, the Court may, if by reason of the delay caused by the stay of proceedings or for any other cause it thinks just, make a bankruptcy order on the application of some other creditor and dismiss, on such terms as it thinks just, the application in which proceedings have been stayed. |
(9) If a bankruptcy order may be made on the bankruptcy application, the Court must, instead of making the order, adjourn the bankruptcy application for a period of 6 months or such other period as the Court may direct and refer the matter to the Official Assignee for the purpose of enabling the Official Assignee to determine whether the debtor is suitable for a debt repayment scheme under Part 15, if all of the following qualifying criteria are satisfied:| (a) | the debt or the aggregate of the debts in respect of which the bankruptcy application is made does not exceed the prescribed amount; | | (b) | the debtor is not an undischarged bankrupt, and has not been a bankrupt at any time within the period of 5 years immediately preceding the date on which the bankruptcy application is made, under this Act; | | (c) | a voluntary arrangement under Part 14 in respect of the debtor is not in effect, and was not in effect at any time within the period of 5 years immediately preceding the date on which the bankruptcy application is made; | | (d) | the debtor is not subject to any debt repayment scheme under Part 15, and has not been subject to any such debt repayment scheme at any time within the period of 5 years immediately preceding the date on which the bankruptcy application is made; | | (e) | the debtor is not a sole proprietor, a partner of a firm within the meaning of the Partnership Act, or a partner in a limited liability partnership. |
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(10) The Court is to proceed to hear a bankruptcy application adjourned under subsection (9) if —| (a) | the Official Assignee reports to the Court under section 289(2) that the debtor is not suitable for a debt repayment scheme under Part 15; or | | (b) | at the end of the period of adjournment, a debt repayment scheme has not commenced under Part 15 in respect of the debtor. |
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| (11) If at any time during the period of adjournment of a bankruptcy application under subsection (9) a debt repayment scheme commences under Part 15 in respect of the debtor, the bankruptcy application is deemed to be withdrawn on the date of commencement of the debt repayment scheme. |
| (12) The Court may give such orders or directions as it thinks fit for the adjournment, hearing or disposal of a bankruptcy application mentioned in subsection (9). |
(13) For the purpose of subsection (9)(d), a person in respect of whom the Official Assignee issues —| (a) | a certificate of inapplicability of a debt repayment scheme under section 299; or | | (b) | a certificate of completion of a debt repayment scheme under section 301(1) —| (i) | which states that all the debts (including interest on each of such debts at the rate to which a creditor is entitled under any written law or rule of law) of the person which have been proved under, and all the costs and expenses of, the debt repayment scheme have been paid in full; and | | (ii) | which has not been revoked under section 302(1), |
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| is not to be treated as having been subject to that debt repayment scheme. |
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| (14) In subsection (9)(a), “debt” has the same meaning as in section 288(1). |
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| Proceedings on bankruptcy application by nominee or creditor bound by voluntary arrangement |
317. The Court must not make a bankruptcy order on a bankruptcy application made under section 307(1)(a)(ii) or (b)(ii) by the nominee supervising the implementation of, or any creditor bound by, the voluntary arrangement in question unless the Court is satisfied that —| (a) | the debtor has failed to comply with the debtor’s obligations under the voluntary arrangement; | | (b) | information which was false or misleading in any material particular or which contained material omissions —| (i) | was contained in any statement of affairs or other document supplied by the debtor under Part 14 to any person; or | | (ii) | was otherwise made available by the debtor to the debtor’s creditors at or in connection with a meeting summoned under Part 14; or |
| | (c) | the debtor has failed to do all such things for the purposes of the voluntary arrangement as may have been reasonably required of the debtor by the nominee. |
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| Proceedings on debtor’s bankruptcy application |
318.—(1) The Court hearing a debtor’s bankruptcy application must not make a bankruptcy order on the application unless the Court is satisfied that the debtor is unable to pay the debtor’s debts.| (2) Where a debtor’s bankruptcy application has been made against a firm by some, but not all, of the partners in the firm, the Court must not make a bankruptcy order on the application unless the Court is satisfied that notice of the application in the prescribed form has been served in the prescribed manner on each of the partners who did not join in the application. |
(3) If a bankruptcy order may be made on the bankruptcy application, the Court must, instead of making the order, adjourn the bankruptcy application for a period of 6 months or such other period as the Court may direct and refer the matter to the Official Assignee for the purpose of enabling the Official Assignee to determine whether the debtor is suitable for a debt repayment scheme under Part 15, if all of the following qualifying criteria are satisfied:| (a) | the aggregate of the debts specified in the statement of affairs exhibited to the debtor’s affidavit under section 308(2) does not exceed the amount mentioned in section 316(9)(a); | | (b) | the debtor is not an undischarged bankrupt, and has not been a bankrupt at any time within the period of 5 years immediately preceding the date on which the bankruptcy application is made, under this Act; | | (c) | a voluntary arrangement under Part 14 in respect of the debtor is not in effect, and was not in effect at any time within the period of 5 years immediately preceding the date on which the bankruptcy application is made; | | (d) | the debtor is not subject to any debt repayment scheme under Part 15, and has not been subject to any such debt repayment scheme at any time within the period of 5 years immediately preceding the date on which the bankruptcy application is made; | | (e) | the debtor is not a sole proprietor, a partner of a firm within the meaning of the Partnership Act or a partner in a limited liability partnership. |
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(4) The Court is to proceed to hear a bankruptcy application adjourned under subsection (3) if —| (a) | the Official Assignee reports to the Court under section 289(2) that the debtor is not suitable for a debt repayment scheme under Part 15; or | | (b) | at the end of the period of adjournment, a debt repayment scheme has not commenced under Part 15 in respect of the debtor. |
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| (5) If at any time during the period of adjournment of a bankruptcy application under subsection (3) a debt repayment scheme commences under Part 15 in respect of the debtor, the bankruptcy application is deemed to be withdrawn on the date of commencement of the debt repayment scheme. |
| (6) The Court may give such orders or directions as it thinks fit for the adjournment, hearing or disposal of a bankruptcy application mentioned in subsection (3). |
(7) For the purpose of subsection (3)(d), a person in respect of whom the Official Assignee issues —| (a) | a certificate of inapplicability of a debt repayment scheme under section 299; or | | (b) | a certificate of completion of a debt repayment scheme under section 301(1) —| (i) | which states that all the debts (including interest on each of such debts at the rate to which a creditor is entitled under any written law or rule of law) of the person which have been proved under, and all the costs and expenses of, the debt repayment scheme have been paid in full; and | | (ii) | which has not been revoked under section 302(1), |
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| is not to be treated as having been subject to that debt repayment scheme. |
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| (8) In subsection (3)(a), “debt” has the same meaning as in section 288(1). |
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| Consolidation of bankruptcy applications |
| 319. Where 2 or more bankruptcy applications are made against the same debtor, the Court may consolidate the proceedings or any of them on such terms as the Court thinks fit. |
| Power to dismiss application against some respondents only |
| 320. Where there are 2 or more respondents to an application, the Court may dismiss the application as to one or more of them, without affecting the effect of the application as against the other or others of them. |
| Power to change conduct of proceedings |
321. Where any applicant for a bankruptcy order does not proceed with due diligence on the applicant’s application, the Court may substitute as applicant —| (a) | in the case of a creditor’s bankruptcy application, any other creditor to whom the debtor is indebted in the amount required under section 311(1)(a); or | | (b) | in any other case, the Official Assignee, |
| and, unless the Court otherwise directs, the proceedings are to be continued as though no change had been made in the conduct of the proceedings. |
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| Continuance of proceedings on death of debtor |
322. If a debtor by or against whom a bankruptcy application has been made dies, unless the Court otherwise directs, the proceedings in the matter are to be continued as if the debtor were alive, and the Court may —| (a) | order that the application be served on the debtor’s personal representative or such other person as the Court thinks fit; or | | (b) | dispense with service of the application on the debtor. |
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| Withdrawal of bankruptcy application |
323.—(1) Subject to subsection (2) and sections 316(11) and 318(5), a bankruptcy application must not be withdrawn without the leave of the Court.| (2) Subject to subsection (3), if no party to a bankruptcy application has, for more than one year (or such extended period as the Court may allow under subsection (4)), taken any step or proceeding in the bankruptcy application that appears from records maintained by the Court, the bankruptcy application is deemed to be withdrawn on the date immediately following the expiry of that year (or extended period). |
| (3) Subsection (2) does not apply where the bankruptcy application has been stayed, or where proceedings on the application have been stayed, by the Court. |
| (4) The Court may, on an application by any party made before the one year mentioned in subsection (2) has elapsed, extend the period as the Court thinks fit. |
| (5) Subsection (2) applies to any bankruptcy application, whether made before, on or after 1 March 2012, but where the last step or proceeding in the bankruptcy application took place before that date, the period of one year begins on that date. |
| (6) Where a bankruptcy application is deemed to be withdrawn under subsection (2), the Court may, on application, reinstate the bankruptcy application and allow the bankruptcy application to proceed on such terms as the Court thinks just. |
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| Division 2 — Protection of debtor’s property |
| Appointment of interim receiver |
324.—(1) The Court may, if it thinks it necessary or expedient for the protection of the debtor’s property, at any time after the making of a bankruptcy application and before making a bankruptcy order, appoint the Official Assignee to be the interim receiver of the debtor’s property or any part of the debtor’s property and direct the Official Assignee to take immediate possession of the same, including any books of accounts and other documents relating to the debtor’s business.(2) Where the Court has appointed an interim receiver under subsection (1), no person who is a creditor of the debtor in respect of a debt provable in bankruptcy —| (a) | has any remedy against the person or property of the debtor in respect of that debt; or | | (b) | while the appointment of the interim receiver is in force, may commence or continue any action or other legal proceedings against the debtor in respect of that debt, |
| except with the leave of the Court and on such terms as the Court may impose. |
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(3) Upon the appointment of an interim receiver under subsection (1), the debtor must —| (a) | give to the interim receiver such inventory of the debtor’s property and such other information; and | | (b) | attend on the interim receiver at such times, |
| as the interim receiver may for the purpose of carrying out the interim receiver’s functions under this section reasonably require. |
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(4) Upon the appointment of an interim receiver under this section, sections 335 and 336 apply, with the necessary modifications, and any reference in those sections to —| (a) | the making of a bankruptcy order is to be read as a reference to the appointment of an interim receiver under this section; | | (b) | the Official Assignee is to be read as a reference to the interim receiver; and | | (c) | the bankrupt or the bankrupt’s estate is to be read (respectively) as a reference to the debtor or the debtor’s property. |
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(5) The Official Assignee ceases to be the interim receiver of a debtor’s property if —| (a) | the bankruptcy application made against the debtor is dismissed or withdrawn; | | (b) | a bankruptcy order is made on the application; or | | (c) | the Court by order terminates the appointment. |
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| Power to stay proceedings against person or property of debtor |
| 325. Any Court may by order, at any time after the making of a bankruptcy application, stay any action, execution or other legal process against the person or property of the debtor. |
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