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One of the troubling questions that lingers in the minds of creditors is how to secure or recover their debts. There are a number of enforcement remedies that can help creditors secure, as well as recover, their debts in Mauritius.
The trend in recent years has been to seek an attachment order1 – largely because of the rapid process it embraces. An attachment order can be issued in two situations: (i) where the debt is based on an enforceable title or (ii) where the debt is not based on an enforceable title. Whatever the situation, the process used for a seizure remains the fastest way to recover or secure a creditor’s debt.
WHAT IS AN ATTACHMENT?
A seizure (also known as a “seizure order”) is a mechanism established and adopted by the Supreme Court of Mauritius whereby a creditor – the plaintiff – can have recourse to the intervention of the judge in chambers to secure or recover the debt owed to him. by the debtor.
Indeed, a creditor seeks to prohibit a third party, also called “the garnishee”, from disposing of what the latter is supposed to owe to the debtor. In simpler terms, if someone (the garnishee) owes the debtor money, a seizure will allow the creditor to ask the judge in chambers to make the creditor pay it instead. The judge will also prevent the garnishee from disposing of the assets until the final determination of the claim by the creditor.
A request for an attachment order is a conservatory measure (because the garnishee is essentially prevented from dissipating the seized property), it ultimately results in the payment of the creditor through the sale of the seized property.
AN EX-PARTY REQUEST FOR SEIZURE OF ASSETS
In short, an application for an attachment order is made
ex-parte before the judge in chambers. As the process is initiated without notice, the creditor has the comfort of knowing that the debtor will not have the opportunity to conceal the assets or otherwise impede the creditor’s efforts.
The procedure to be adopted has been determined by the competent authority of MCB vs. Sibartie Fils et Compagnie & Sibartie 1988 MR 66, which was recently reaffirmed by the Court of Civil Appeals in Mauritius Duty Free Paradise Co. Ltd v The Mauritius Commercial Bank Ltd. & Anor 2022 SCJ 42 where the Court defined the procedural steps as follows:
- Action in guarantee of the debt in the hands of the garnishee;
- Action against the debtor;
- Action against the garnishee; and
- The final step in the process of a “garnishment”.
During the process, regardless of the creditor’s debt status, a creditor must ensure certain essentials for their application to be accepted, as has been established by a series of authorities, one of which is
Bomeubles & Cie Ltée v Banks 2015 SCJ 283, which provides that the creditor must demonstrate that the debt (“debt“) should:
(i) is certain, of a fixed amount, and due (“certain, liquid, and payable“); Where
(ii) which otherwise appears valid in principle (“seemed founded in principle“). The court in the said case explained that what the creditor must demonstrate is not that the debt is certain in principle but rather that the debt is valid in principle, i.e. the authenticity of the debt.
Thus, any creditor contemplating a request for an Seizure Order must ensure that its debt (whether based on an enforceable title or not) is either certain, of a fixed and payable amount, or otherwise valid. in principle.
A USEFUL COLLECTION TOOL
A request for an attachment order is a useful debt enforcement tool, which essentially bypasses the debtor and goes to a third party to obtain payment for a debt. It removes the dependence on the debtor to repay the debt. Mauritian courts have recently been dealing with an increasing number of applications for attachment orders, as creditors seem to have realized that this is a sophisticated tool that allows them to resort to a remedy that would prevent a defendant from unduly dissipating assets pending the decision. of their main dispute.
Although potential litigants may have recourse to other means of redress such as the traditional complaint or by means of a summary remedy such as an injunction, such measures are not without drawbacks. To this end, attachment orders seem to provide more comfort to creditors when it comes to securing their debts.
1. Legal professionals also call an attachment order a “provisional attachment order”. These two terms are used interchangeably; the principles and the procedure remain the same.
Note 1: Translations of English material are for the convenience of non-English speaking audiences only. Appleby has attempted to provide a translation of the original material into English, but due to nuances in the translation, slight differences may exist. Always refer to the original texts.
Note 2: This article is for informational purposes only and does not constitute definitive legal advice. Please contact one of our attorneys if you need more detailed information.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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