This Act was repealed on 2016-05-20 by Insolvency Act.
- Commenced on 14 April 1928
- [This is the version of this document at 31 December 2014.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
- [Repealed by Insolvency Act (Act 9 of 2016) on 20 May 2016]
Part I – Preliminary
1. Short titleThis Act may be cited as the Bankruptcy Act.
2. InterpretationIn this Act, unless the context otherwise requires—“available act of bankruptcy” means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made;“the Court” means the High Court of Malawi;“debt provable in bankruptcy” or “provable debt” includes any debt or liability by this Act made provable in bankruptcy;“goods” includes all chattels personal;“local bank” means any bank in Malawi;“ordinary resolution” means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;“property” includes money, goods, things in action, land, and every description of property whether movable or immovable and whether situate in Malawi or elsewhere; also, obligations, easements, and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property as above defined;“reciprocating court” means a court having jurisdiction in bankruptcy or insolvency in a reciprocating territory;“reciprocating territory” means any territory declared a reciprocating territory under section 148;“resolution” means ordinary resolution;“rules” includes forms;“secured creditor” means a person holding a mortgage charge or lien on the property of the debtor, or any part thereof, as a security for a debt due to him from the debtor;“sheriff” includes any person charged with the execution of any process;“special resolution” means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution;“trustee” means the trustee in bankruptcy of a debtor’s estate.
Part II – Proceedings from act of bankruptcy to discharge
Acts of bankruptcy
3. Acts of bankruptcy
4. Bankruptcy noticesA bankruptcy notice under this Act shall be in the prescribed form, and shall require the debtor to pay the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order, or to secure or compound for it to the satisfaction of the creditor or the Court, and shall state the consequences of non-compliance with the notice, and shall be served in the prescribed manner:Provided that a bankruptcy notice—
5. Jurisdiction to make receiving orderSubject to the conditions hereinafter specified if a debtor commits an act of bankruptcy the Court may, on a bankruptcy petition being presented either by a creditor or by the debtor, make an order, in this Act called a receiving order, for the protection of the estate.
6. Conditions on which creditor may petition
7. Proceedings and order on creditor's petition
8. Debtor’s petition and order thereon
9. Effect of receiving order
10. Power to appoint interim receiverThe Court may, if it is shown to be necessary for the protection of the estate, at any time after the presentation of a bankruptcy petition, and before a receiving order is made, appoint the official receiver to be interim receiver of the property of the debtor, or of any part thereof, and direct him to take immediate possession thereof or of any part thereof.
11. Power to stay pending proceedings
12. Power to appoint special manager
13. Advertisement of receiving orderNotice of every receiving order, stating the name, address, and description of the debtor, the date of the order, and the date of the petition, shall be gazetted and advertised in a local paper in the prescribed manner.
14. Power to rescind receiving order in certain casesIf in any case where a receiving order has been made on a bankruptcy petition it appears to the Court, upon an application by the official receiver, or any creditor or other person interested, that a majority of the creditors in number and value are resident in some place elsewhere than in Malawi, and that from the situation of the property of the debtor, or other causes, his estate and effects ought to be distributed among the creditors under the law relating to bankruptcy in such place, the court, after such inquiry as it may think fit, may rescind the receiving order and stay all proceedings on, or dismiss the petition upon such terms, if any, as the Court may think fit.
Proceedings consequent on order
15. First and other meetings of creditors
16. Debtor’s statement of affairs
Public examination of the debtor
17. Public examination of debtor
Composition or scheme of arrangement
18. Compositions and schemes of arrangement
19. Effect of composition or schemeNotwithstanding the acceptance and approval of a composition or scheme, the composition or scheme shall not be binding on any creditor so far as regards a debt or liability from which, under this Act, the debtor would not be released by an order of discharge in bankruptcy, unless the creditor assents to the composition or scheme.
Adjudication of bankruptcy
20. Adjudication of bankruptcy where composition not accepted or approved
21. Appointment of trustee
22. Committee of inspection
23. Power to accept composition or scheme after bankruptcy adjudication
Control over person and property of debtor
24. Duties of debtor as to discovery and realization of property
25. Arrest of debtor under certain circumstances
26. Re-direction of debtor’s lettersWhere a receiving order is made against a debtor, the Court, on the application of the official receiver or trustee, may from time to time order that for such time, not exceeding three months, as the Court thinks fit, post letters, telegrams, and other postal packets, addressed to the debtor at any place or places mentioned in the order for re-direction, shall be re-directed, sent or delivered by the Postmaster-General, or the officers acting under him, to the official receiver, or the trustee, or otherwise as the Court directs, and the same shall be done accordingly.
27. Inquiry as to debtor’s conduct, dealings and property
28. Discharge of bankrupt
29. Fraudulent settlementsIn either of the following cases—
30. Effect of order of discharge
31. Power of Court to annual adjudication in certain cases
Part III – Administration of property
Proof of debts
32. Description of debts provable in bankruptcy
33. Mutual credit and set-offWhere there have been mutual credits, mutual debts or other mutual dealings, between a debtor against whom a receiving order shall be made under this Act and any other person proving or claiming to prove a debt under the receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had, at the time of giving credit to the debtor, notice of an act of bankruptcy committed by the debtor and available against him.
34. Rules as to proof of debtsWith respect to the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs, and the other matters referred to in the Second Schedule, the Rules in that Schedule shall be observed.
35. Priority debts
36. Preferential claim in case of apprenticeship
37. Landlord’s power of distressThe landlord or other person to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy, distrain upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy it shall be available only for six months’ rent accrued due prior to the date of the order of adjudication and shall not be available for rent payable in respect of any period subsequent to the date when the distress was levied, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the surplus due for which the distress may not have been available.
38. Postponement of husband's and wife’s claims
Property available for payment of debts
39. Relation back of trustee’s title
40. Description of bankrupt’s property divisible amongst creditorsThe property of the bankrupt divisible amongst his creditors, and in this Act referred to as the property of the bankrupt, shall not comprise the following particulars—
41. Provision as to second bankruptcy
Effect of bankruptcy on antecedent and other transactions
42. Restriction of rights of creditor under execution or attachment
43. Duties of sheriff as to goods taken in execution
44. Avoidance of certain settlements
45. Avoidance of general assignments of book debts unless registered
46. Avoidance of preference in certain cases
47. Protection of bona fide transactions without noticeSubject to the foregoing provisions of this Act with respect to the effect of bankruptcy on an execution or attachment, and with respect to the avoidance of certain settlements, assignments and preferences, nothing in this Act shall invalidate, in the case of a bankruptcy—
48. Validity of certain payments to bankrupt and assignee
49. Dealings with undischarged bankrupt
Realization of property
50. Possession of property by trustee
51. Seizure of property of bankruptAny person acting under warrant of the Court may seize any part of the property of a bankrupt, or of a debtor, against whom a receiving order has been made, in the custody or possession of the bankrupt or the debtor, or of any other person, and with a view to such seizure may break open any house, building or room of the bankrupt or the debtor, where the bankrupt or the debtor is supposed to be, or any building or receptacle of the bankrupt or the debtor where any of his property is supposed to be; and where the Court is satisfied that there is reason to believe that property of a bankrupt, or of a debtor against whom a receiving order has been made, is concealed in a house or place not belonging to him, the Court may, if it thinks fit, grant a search warrant to any police officer or officer of the Court, who may execute it according to its tenor.
52. Appropriation of portion of pay or salary to creditors
53. Appropriation of income of property restrained from anticipationWhere a married woman who has been adjudged bankrupt has separate property the income of which is subject to a restraint on anticipation, the Court shall have power, on the application of the trustee, to order that, during such time as the Court may order, the whole or some part of such income be paid to the trustee for distribution amongst the creditors, and in the exercise of such power the Court shall have regard to the means of subsistence available for the woman and her children.
54. Vesting and transfer of property
55. Disclaimer of onerous property
56. Powers of trustee to deal with propertySubject to this Act, the trustee may do all or any of the following things—
57. Powers exercisable by trustee with permission of committee of inspectionThe trustee may, with the permission of the committee of inspection, do all or any of the following things—
58. Power to allow bankrupt to manage propertyThe trustee, with the permission of the committee of inspection, may appoint the bankrupt himself to superintend the management of the property of the bankrupt or of any part thereof, or to carry on the trade (if any) of the bankrupt 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 trustee may direct.
59. Allowance to bankrupt for maintenance or serviceThe trustee may from time to time, with the permission of the committee of inspection, 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 services if he is engaged in winding-up his estate, but any such allowance may be reduced by the Court.
60. Right of trustee to inspect goods pawned, etc.Where any goods of a debtor against whom a receiving order has been made are held by any person by way of pledge, pawn, or other security, it shall be lawful for the official receiver or trustee, after giving notice in writing of his intention to do so, to inspect the goods, and where such notice has been given, such person as aforesaid shall not be entitled to realize his security until he has given the trustee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so.
61. Limitation of trustee’s powers in relation to copyrightWhere the property of a bankrupt comprises the copyright in any work or any interest in such copyright, and he is liable to pay to the author of the work royalties or a share of the profits in respect thereof, the trustee shall not be entitled to sell, or authorize the sale of, any copies of the work, or to perform or authorize the performance of the work, except on the terms of paying to the author such sums by way of royalty or share of the profits as would have been payable by the bankrupt, nor shall he, without the consent of the author or of the Court, be entitled to assign the right or transfer the interest or to grant any interest in the right by license, except upon terms which will secure to the author payments by way of royalty or share of the profits at a rate not less than that which the bankrupt was liable to pay.
62. Protection of official receiver and trustee from personal liability in certain casesWhere the official receiver or trustee has seized or disposed of any goods, chattels, property, or other effects in the possession or on the premises of a debtor against whom a receiving order has been made, without notice of any claim by any person in respect of the same, and it is thereafter made to appear that the said goods, chattels, property or other effects were not, at the date of the receiving order, the property of the debtor, the official receiver or trustee shall not be personally liable for any loss or damage arising from such seizure or disposal sustained by any person claiming such property, nor for the cost of any proceedings taken to establish a claim thereto, unless the Court is of opinion that the official receiver or trustee has been guilty of negligence in respect of the same.
Distribution of property
63. Declaration and distribution of dividends
64. Joint and separate dividends
65. Provisions creditors residing at a distance, etc.
66. Right of creditor who has not proved debt before declaration of a dividendAny creditor who has not proved his debt before the declaration of any dividend or dividends shall be entitled to be paid out of any money for the time being in the hands of the trustee any dividend or dividends he may have failed to receive before that money is applied to the payment of any future dividend or dividends, but he shall not be entitled to disturb the distribution of any dividend declared before his debt was proved by reason that he has not participated therein.
67. Interest on debts
68. Final dividend
69. No action for dividendNo action for dividend shall lie against the trustee, but, if the trustee refuses to pay any dividend, the Court may, if it thinks fit, order him to pay it, and also to pay out of his own money interest thereon for the time that it is withheld, and the costs of the application.
70. Right of bankrupt to surplusThe 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 petition.
Part IV – Official receiver and staff
71. Official receiver of debtors’ estatesThere shall be an official receiver of debtors’ estates, assisted by such staff as may be required from time to time. He shall also be an officer of the Court and shall be referred to as the “official receiver”.
72. Status of official receiver
73. Duties of official receiver as regards the debtor’s conductAs regards the debtor, it shall be the duty of the official receiver—
74. Duties of official receiver as to debtor's estate
Part V – Trustees in bankruptcy
75. Official name of trusteeThe official name of a trustee in bankruptcy shall be “the trustee of the property of ____________________ a bankrupt” (inserting the name of the bankrupt), and by that name the trustee may, in any part of Malawi or elsewhere, hold property of every description, make contracts, sue and be sued, enter into any engagements binding on himself and his successors in office, and do all other acts necessary or expedient to be done in the execution of his office.
76. Power to appoint joint or successive trustees
77. Proceedings in case of vacancy in office of trustee
Control over trustee
78. Discretionary powers of trustee and control thereof
79. Appeal to Court against trusteeIf the bankrupt or any of the creditors, or any other person, is aggrieved by any act or decision of the trustee, he may apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just.
80. Control of official receiver over trustees
Remuneration and costs
81. Remuneration of trustee
82. Allowance and taxation of costs
Receipts, payments, account, audit
83. Trustee to furnish list of creditorsThe trustee or official receiver shall, whenever required by any creditor so to do, furnish and transmit to him by post a list of the creditors showing the amount of the debt due to each creditor, and shall be entitled to charge for such list the sum of sixpence per folio of one hundred words, together with the cost of the postage thereof.
84. Trustee to furnish statement of accountsIt shall be lawful for any creditor, with the concurrence of one-sixth of the creditors (including himself), at any time to call upon the trustee or official receiver to furnish and transmit to the creditors a statement of the accounts up to the date of such notice, and the trustee shall, upon the receipt of such notice, furnish and transmit such statement of the accounts:Provided that the person at whose instance the accounts are furnished shall deposit with the trustee or official receiver, as the case may be, a sum sufficient to pay the costs of furnishing and transmitting the accounts, which sum shall be repaid to him out of the estate if the creditors or the Court so direct.
85. Books to be kept by trusteeThe trustee shall keep, in manner prescribed, proper books, in which he shall from time-to-time cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditor of the bankrupt may, subject to the control of the Court, personally or by his agent, inspect any such books.
86. Annual statement of proceedings
87. Trustee not to pay into private accountNo trustee in a bankruptcy or under any composition or scheme of arrangement shall pay any sums received by him as trustee into his private banking account.
88. Payment of money into the prescribed bank or with the Accountant General
89. Investment of surplus funds
90. Audit of trustee’s accounts
Vacation of office by trustee
91. Release of trustee
92. Office of trustee vacated by insolvencyIf a receiving order is made against a trustee, he shall thereby vacate his office of trustee.
93. Removal of trustee
Part VI – Procedure and powers of court
94. Description of bankruptcy proceedingsSubject to general Rules, all bankruptcy matters shall be entitled “in bankruptcy.”
95. Judge may exercise his powers in chambersSubject to this Act, and to general Rules, a judge of the Court may exercise in chambers the whole or any part of his powers.
96. Jurisdiction in bankruptcy of Registrar of the High Court
97. Official receiver to make payments in accordance with directions of CourtWhere any moneys or funds have been received by the Official receiver under this Act and the Court makes an order declaring that any person is entitled to such moneys or funds, the official receiver shall make payment accordingly to that person.
98. General powers of the Court
99. Disqualifications of bankrupt
100. Power to make receiving order in lieu of committal orderWhere application is made by a judgment creditor to the Court for the committal of a judgment debtor, the Court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor and on payment by him of the prescribed fee, make a receiving order against the debtor. In such case the judgment debtor shall be deemed to have committed an act of bankruptcy at the time the order is made, and this Act, except Part VIII, shall apply as if for references to the presentation of a petition by or against a person there were substituted references to the making of such a receiving order.
101. Appeals in bankruptcy
102. Discretionary power of Court
103. Consolidation of petitionsWhere two or more bankruptcy petitions are presented against the same debtor or against joint debtors, the Court may consolidate the proceedings, or any of them, on such terms as the Court thinks fit.
104. Power to change carriage of proceedingsWhere the petitioner does not proceed with due diligence on his petition, the Court may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Act in the case of the petitioning creditor.
105. Continuance of proceedings on death of debtorIf a debtor by or against whom a bankruptcy petition has been presented dies, the proceedings in the matter shall, unless the Court otherwise orders, be continued as if he were alive.
106. Power to stay proceedingsThe Court may at any time, for sufficient reason, make an order staying the proceedings under a bankruptcy petition, either altogether or for a limited time, on such terms and subject to such conditions as the Court may think just.
107. Power to present petition against one partnerAny creditor whose debt is sufficient to entitle him to present a bankruptcy petition against all the partners of a firm may present a petition against any one or more partners of the firm without including the others.
108. Power to dismiss petition against some respondents onlyWhere there are more respondents than one to a petition, the Court may dismiss the petition as to one or more of them, without prejudice to the effect of the petition as against the other or others of them.
109. Property of partners to be vested in same trusteeWhere a receiving order has been made on a bankruptcy petition by or against one member of a partnership, any other bankruptcy petition by or against a member of the same partnership shall be filed with the first-mentioned petition, and, unless the Court otherwise directs, the same trustee or receiver shall be appointed as may have been appointed in respect of the property of the first-mentioned member of the partnership, and the Court may give such directions for consolidating the proceedings under the petitions as it thinks just.
110. Actions by trustee and bankrupt’s partnersWhere a member of a partnership is adjudged bankrupt, the Court may authorize the trustee to commence and prosecute any action in the names of the trustee and of the bankrupt’s partner; and any release by such partner of the debt or demand to which the action relates shall be void; but notice of the application for authority to commence the action shall be given to him, and he may show cause against it, and on his application the Court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action, and if he does not claim any benefit therefrom, he shall be indemnified against costs in respect thereof as the Court directs.
111. Actions on joint contractsWhere a bankrupt is a contractor in respect of any contract jointly with any person or persons, such person or persons may sue or be sued in respect of the contract without the joinder of the bankrupt.
112. Proceedings in partnership nameAny two or more persons, being partners, or any person carrying on business under a partnership name, may take proceedings or be proceeded against under this Act in the name of the firm, but in such case the Court may, on application by any person interested, order the names of the persons who are partners in such firm or the name of such person to be disclosed in such manner, and verified on oath or otherwise, as the Court may direct.
Orders and warrants of Court
113. Court to be auxiliary to other British courtsThe Court and all the officers thereof shall, in all matters of bankruptcy, act in aid and be auxiliary to every British court elsewhere having jurisdiction in bankruptcy or insolvency, and an order of the court seeking aid, with a request to this Court, shall be deemed sufficient to enable this Court to exercise in regard to the matters directed in the order such jurisdiction as either the court which made the request, or this Court could exercise in regard to similar matters within their respective jurisdiction, save that to enable the official receiver of Malawi to act as the agent of an officer of a reciprocating court or to enable an officer of this Court to seek the aid of an official receiver of a reciprocating court in the manner provided in Part IX it shall not be necessary for this Court or any reciprocating court to make any order or send any request under this section.
114. Commitment to prisonWhere the Court commits any person to prison the commitment may be to such convenient prison as the Court thinks expedient, and, if the goaler of any prison refuses to receive any prisoner so committed, he shall be liable for every such refusal to a fine of £100.
Part VII – Supplemental provisions
Application of Act
115. Married women
116. Exclusion of companiesA receiving order shall not be made against any corporation or against any association or company registered under the Companies Act, or the Acts by that Act applied to Malawi.
117. Application of Act in case of small estatesWhere a petition is presented by or against a debtor, if the Court is satisfied, by affidavit or otherwise, or the official receiver reports to the Court, that the property of the debtor is not likely to exceed in value £300, the Court may make an order that the debtor’s estate be administered in a summary manner, and thereupon this Act shall be subject to the following modifications—
118. Administration in bankruptcy of estate of person dying insolvent
119. Power to make general rulesThe Minister may make general Rules for carrying into effect the objects of this Act.
Fees and salaries
120. Fees, etc.The Chief Justice may prescribe a scale of fees and percentages to be charged for or in respect of proceedings under this Act.
121. Salaries and remunerationThe Chief Justice shall direct whether any and what remuneration is to be allowed to any person (other than the official receiver or his staff) performing any duties under this Act, and may vary, increase, or diminish such remuneration, as he may think fit.
122. Gazette to be evidence
123. Evidence of proceedings at meetings of creditors
124. Evidence of proceedings in bankruptcyAny petition or copy of a petition in bankruptcy, any order or certificate or copy of an order or certificate made by the Court, any instrument or copy of an instrument, affidavit or document made or used in the course of any bankruptcy proceedings or other proceedings had under this Act, shall, if it appears to be sealed with the seal of the Court, or purports to be signed by any judge thereof, or is certified as a true copy by any registrar thereof, be receivable in evidence in all legal proceedings whatever.
125. Swearing of affidavitsSubject to general Rules, any affidavit to be used in the Court may be sworn before any person authorized to administer oaths, or in the case of a person residing out of Malawi, before any person qualified to administer oaths in the country where he resides (he being certified to be qualified as aforesaid by an accredited member of the Malawi Foreign Service or by a British minister or British consul, or by a notary public).
126. Death of debtor or witnessIn the case of the death of the debtor or his wife, or of a witness whose evidence has been received by the Court in any proceeding under this Act, the deposition of the person so deceased, purporting to be sealed with the seal of the Court, or a copy thereof purporting to be so sealed, shall be admitted as evidence of the matters therein deposed to.
127. Certificate of appointment of trusteeA certificate of the Court that a person has been appointed trustee under this Act shall be conclusive evidence of his appointment.
128. Computation of time
129. Service of noticesAll notices and other documents for the service of which no special mode is directed may be sent by post to the last known address of the person to be served therewith.
130. Formal defect not to invalidate proceedings
131. Exemption of deeds, etc., from stamp dutyEvery deed, conveyance, assignment or other assurance relating solely to freehold or leasehold property, or to any mortgage, charge or other incumbrance on, or any estate, right or interest in, any movable or immovable property which is part of the estate of any bankrupt, and which, after the execution of the deed, conveyance, assignment or other assurance, either at law or in equity, is or remains the estate of the bankrupt or of the trustee under the bankruptcy, and every power of attorney, proxy paper, writ, order, certificate, affidavit, bond or other instrument or writing relating solely to the property of any bankrupt, or to any proceeding under any bankruptcy, shall be exempt from stamp duty, except in respect of fees under this Act.
132. Acting of corporations, partners, etc.For all or any of the purposes of this Act, a corporation may act by any of its officers authorized in that behalf under the seal of the corporation, a firm may act by any of its members, and a lunatic may act by the appointed manager of his estate.
133. Certain provisions to bind GovernmentSave as provided in this Act, the provisions of this Act relating to the remedies against the property of a debtor, the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge, shall bind the Government.
Unclaimed funds or dividends
134. Unclaimed and undistributed dividends or funds under this Act
Part VIII – Bankruptcy offences
135. Fraudulent debtors
136. Undischarged bankrupt obtaining creditWhere a person who has been adjudged bankrupt or insolvent in Malawi or any reciprocating territory and has not obtained his discharge—
137. Frauds by bankrupts, etc.If any person who has been adjudged bankrupt or in respect of whose estate a receiving order has been made—
138. Bankrupt guilty of gambling, etc.
139. Bankrupt failing to keep proper accounts
140. Bankrupt absconding with propertyIf any person who is adjudged bankrupt, or in respect of whose estate a receiving order has been made, after the presentation of a bankruptcy petition by or against him, or within six months before such presentation, quits Malawi and takes with him, or attempts or makes preparation to quit Malawi and take with him, any part of his property to the amount of £20 or upwards, which ought by law to be divided amongst his creditors, he shall (unless he proves that he had no intent to defraud) be guilty of an offence.
141. False claim, etc.If any creditor, or any person claiming to be a creditor, in any bankruptcy proceedings, willfully and with intent to defraud makes any false claim, or any proof, declaration or statement of account, which is untrue in any material particular, he shall be liable to imprisonment for one year.
142. Order by Court for prosecution on report of trusteeWhere an official receiver or a trustee in a bankruptcy reports to the Court that in his opinion a debtor who has been adjudged bankrupt or in respect of whose estate a receiving order has been made has been guilty of any offence under this Act, or where the Court is satisfied upon the representation of any creditor or member of the committee of inspection that there is ground to believe that the debtor has been guilty of any such offence, the Court shall, if it appears to the Court that there is a reasonable probability that the debtor will be convicted and that the circumstances are such as to render a prosecution desirable, order that the debtor be prosecuted for such offence.
143. Criminal liability after discharge or compositionWhere a debtor has been guilty of any criminal offence, he shall not be exempt from being proceeded against therefor by reason that he has obtained his discharge or that a composition or scheme of arrangement has been accepted or approved.
144. Power of Court to commit for trial
145. Trial and punishment of offences
146. Director of Public Prosecutions to act in certain casesWhere the Court orders the prosecution of any person for any offence under this Act or for any offence arising out of or connected with any bankruptcy proceedings, it shall be the duty of the Director of Public Prosecutions to institute and carry on the prosecution:Provided that, where the order of the Court is made on the application of the official receiver and based on his report, the official receiver may institute the prosecution and carry on the proceedings, if or so long as those proceedings are conducted before a subordinate court, unless in the course thereof circumstances arise which render it desirable that the remainder of the proceedings should be carried on by the Director of Public Prosecutions.
147. Evidence as to frauds by agentsA statement or admission made by any person in any compulsory examination or deposition before the Court on the hearing of any matter in bankruptcy shall not be admissible as evidence against that person in any proceeding in respect of any offence relating to frauds by agents, bankers, or factors.
Part IX – Provisions for reciprocity with other territories
148. Declaration of reciprocating, territories and courtsWhere the President is satisfied that the legislature of any territory has enacted provisions for reciprocity in bankruptcy which in that territory have the like effect as the provisions contained in this Part, the President may by order declare such territory to be a reciprocating territory, and the court thereof having jurisdiction in bankruptcy a reciprocating court for the purposes of this Act, and as from the date of publication of such order in the Gazette this Part shall apply to all bankruptcy proceedings subsequently instituted in the declared territory against a debtor having property in Malawi.
149. Local effect of receiving order, etc., made by reciprocating court against debtor having property in MalawiWhere a receiving order or order of adjudication or any appointment of a special manager or interim receiver has been made in any reciprocating territory in bankruptcy proceedings against a debtor having property in Malawi, such order or appointment shall, subject to the other provisions of this Part, have the like effect as if it had been made in bankruptcy proceedings against the debtor in Malawi, and the debtor and his creditors shall be deemed to be in the same position and have the same rights and privileges, and be subject to the same disqualifications, restrictions, obligations and liabilities in every respect as if such order or appointment had been made under this Act.
150. Vesting of bankrupt's local property in trustee appointed reciprocating territoryWhere an order of adjudication is made by a reciprocating court, the property of the bankrupt situated in Malawi shall, by virtue of such order, vest in the person from time to time discharging the office of trustee of the property of the bankrupt in the reciprocating territory, in the same manner as if the order of adjudication and the appointment of trustee had been made in Malawi, and the superintendence of such trustee shall continue to be exercised by the committee of inspection appointed in the reciprocating territory or, if there be no such committee, by the reciprocating court.
151. Local powers of official receiver, etc., appointed in a reciprocating territoryThe official receiver, interim receiver, special manager or trustee of a reciprocating territory officiating in bankruptcy proceedings against a debtor having property in Malawi shall, subject to the control of the court by which he is appointed, be solely responsible for conducting those proceedings and managing the affairs of the debtor or bankrupt within Malawi, and for such purposes shall, each in his respective capacity, have the same powers, rights, duties, obligations and liabilities as if he had derived his authority under this Act; and in any such proceedings where by this Act a debtor, creditor or other person interested is required to do any act at the direction of an official receiver, interim receiver, special manager or trustee, or is permitted by this Act to move in any matter in connexion with such proceedings, every such debtor, creditor or person interested shall do such act at the discretion of, and in all such matters treat and negotiate with or proceed against the official receiver, interim receiver, special manager or trustee as the case may be of the reciprocating territory, except in so far as any such official may have delegated his authority to the official receiver of Malawi as his agent in the manner hereinafter provided.
152. Local official receiver to act as agent of official receiver, etc. reciprocating territoryEvery official receiver, interim receiver, special manager or trustee of a reciprocating territory officiating in bankruptcy proceedings against a debtor having property in Malawi may request the official receiver of Malawi to act as his agent either in regard to any specific matter, or generally to take all such steps as may be lawful under this Act for the discovery, seizure, protection, disclaimer or realization of any property of the bankrupt situated within Malawi, and in such event it shall be the duty of the official receiver of Malawi to act accordingly.
153. Mode of requesting official receiver to act as agent
154. Duties of official receiver acting as agentIt shall be the duty of the official receiver of Malawi to remit the proceeds of the realization of the property of the bankrupt and all other money of the estate coming into his hands as such agent as aforesaid, to the person for whom he is acting, after deducting such expenses as may have been properly incurred by him; and the distribution among the creditors of all such money shall be carried out in accordance with the law of the reciprocating territory in which the adjudication order was made.
155. Transmission of proofs of local debtsWhere a receiving order or an order of adjudication has been made in a reciprocating territory and the official receiver of Malawi is acting as agent in the manner hereinbefore provided, proofs of debts contracted by the debtor in Malawi may be filed with the local official receiver in the form prescribed by the law of such reciprocating territory, and in every such case it shall be his duty to receive, deal with and forward in the manner prescribed by the Rules made under this Part such proofs to the official receiver or trustee, as the case may be, of such reciprocating territory.
156. Power of local Court to make orders under sections 11 and 25If, on the application of the official receiver or any creditor or other person interested, it appears to the Court that bankruptcy proceedings have been instituted in a reciprocating court against a debtor having property situated in Malawi, the Court may, notwithstanding that no such proceedings have been instituted in Malawi, exercise as regards the person, property and affairs of the debtor all the powers conferred by sections 11 and 25 as may in the circumstances be applicable.
157. Local enforcement of warrants of reciprocating courtAny order, warrant or search warrant made or issued by a reciprocating court shall be enforced by the Court of Malawi in the same manner in all respects as if such order, warrant or search warrant had been made or issued by itself.
158. Limitation on powers of local court to entertain proceedingsSubject to the other provisions of this section a reciprocating court shall have sole jurisdiction in all matters in or arising out of any bankruptcy proceedings taken before such court against a debtor having property in Malawi, and no court in Malawi shall entertain any suit, application or other matter arising in or out of such proceedings except—
159. Concurrent bankruptcies
160. Power of official receiver, etc., of Malawi to require an official receiver in a reciprocating territory to act as his agent
161. Power to make special Rules under this Part
History of this document
20 May 2016
Repealed by Insolvency Act
14 April 1928