Auctioneers and House Agents Act, 1967

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Proceedings in relation to deposits and banking accounts.

11.—(1) Whenever a person (in this section referred to as the plaintiff) has—

(a) obtained in any proceedings a judgment, order or decree, or

(b) instituted proceedings,

against any other person (in this section referred to as the defendant) for (or, in the case of proceedings instituted, involving a claim for) payment of money in discharge of a liability incurred or alleged to have been incurred by the defendant as an auctioneer or house agent in relation to the receipt or payment of money or the safe custody of property, the plaintiff or any client of the defendant may by motion ex parte apply to the High Court for an order under subsection (3).

(2) (a) A person who may make an application under subsection (1) shall, on satisfying the registrar or clerk, as the case may be, of the court in which the judgment, order or decree mentioned in that subsection was obtained or the proceedings mentioned in that subsection were instituted that he proposes to make the application, be entitled to obtain a certificate signed by the registrar or clerk that a judgment, order or decree as aforesaid has been obtained or that proceedings as aforesaid have been instituted, as the case may be, against the defendant.

(b) A certificate under paragraph (a) shall be evidence of the facts stated therein.

(3) Where an application is made under subsection (1), the following provisions shall have effect, namely:

(a) in any case, the Court may by order direct that the deposit maintained in the Court under the Principal Act be not released during such period as to the Court may seem proper;

(b) in a case where the application is made by a plaintiff who has obtained a judgment, order or decree and it appears to the Court, after such enquiry as it deems appropriate, either—

(i) that it is unlikely that further claims will be made against the deposit in respect of sums then owed by the defendant, or

(ii) that, if such claims are made, the deposit is sufficient to meet them in full,the Court may by order direct that the sum specified in the judgment, order or decree (as the case may be), with or without the costs of the application, shall be paid to the plaintiff out of the deposit or, if the deposit consists of a guarantee bond and notice of the proceedings or of the intention to institute the proceedings has been served before the hearing on the assurance company concerned, shall be paid to the Accountant on behalf of the plaintiff.

(4) Where an order has been made under subsection (3) (a) the Court may also make an order directing either—

(a) that no banking company shall, except on such conditions or in such circumstances as may be specified in the order, make any payment out of any banking account in the name of the defendant, or

(b) that a specified banking company shall not, except on such conditions or in such circumstances as may be specified in the order, make any payment out of any banking account or out of a specified banking account or type of account kept by such company in the name of the defendant.

(5) Where—

(a) an order has been made under subsection (3) (a) on the application of a plaintiff who has obtained a judgment, order or decree, or

(b) an order has been made under subsection (4),

the defendant shall, for the purposes of the law of bankruptcy, be deemed to have committed an act of bankruptcy on the date of the making of the order or, if the defendant is a company, shall, for the purposes of the law relating to companies, be deemed to be unable to pay its debts.

(6) (a) In addition to or in lieu of an order under subsection (4), the Court, notwithstanding anything contained in the law of bankruptcy or the law relating to companies, may, of its own motion and after giving to the defendant, and to any person to whom it considers it reasonable to give notice, such notice as it considers reasonable, by order adjudicate him bankrupt or, if the defendant is a company, make an order for its winding up and for the appointment of the Official Assignee as liquidator.

(b) Where the Official Assignee is appointed liquidator under paragraph (a)—

(i) the provisions of sections 228 (a) and 228 (d) of the Companies Act, 1963 , shall not apply to him,

(ii) notwithstanding anything contained in section 6 or in any other enactment, there shall vest in him the sum to the credit of every client account kept by the company and the provisions of section 7 (2) shall apply as if the vesting were under section 7 (1),

(iii) the exercise of his powers and the performance of his duties as liquidator (including the administration of a client account) shall for all purposes be deemed to be business assigned to the Office of the Official Assignee in Bankruptcy and transacted therein.

(7) Where a defendant is adjudicated bankrupt under this section, the law of bankruptcy (including this Act) shall apply in the same way as if the defendant had been adjudicated bankrupt on a petition of bankruptcy under that law and as if for any reference in that law to the presentation or filing of a petition of bankruptcy there were substituted a reference to the making of the order of adjudication under this section.

(8) Where, in a case where the defendant is a company, a winding up order is made under this section, the law relating to companies (including this Act) shall apply in the same way as if the order had been made on a winding up petition under that law and as if for any reference in that law to the presentation of the winding up petition there were substituted a reference to the making of the winding up order under this section.

(9) An order under subsection (3) (a) or under subsection (4) may be revoked or varied by the High Court.

(10) The whole or any part of proceedings under this section may be heard in chambers.

(11) Rules of the Superior Courts may provide for adaptation of the law of bankruptcy, the law relating to companies and any procedure to such extent as may be necessary to implement this section.

(12) The reference in section 15 (3) of the Principal Act to an order under that section shall be construed as a reference to an order under subsection (3) (b) of this section.

(13) Sections 15 (1) and 15 (2) of the Principal Act are hereby repealed.