Section 12: Powers of Court in actions by dealers

12. Powers of Court in actions by dealers (1) Where, in any case to which section 11 applies, a dealer commences an action to enforce a right to recover possession of goods from a hirer after one half of the hire purchase price has been paid or tendered, the action shall, if brought before a District Court, be commenced in the Court for the district in which the hirer resides or carries on business or resided or carried on business at the date on which he last made a payment under the hire purchase agreement, and after the action has been commenced the dealer shall not take any step to enforce payment of any sum due under the hire purchase agreement or under any contract of guarantee relating to it, except by claming the sum in the action. H5 – 9 [Issue 1] Hire Purchase and Credit Sale Act (2) Subject to such exceptions as may be provided for by Rules of Court, all the parties to the agreement and any guarantor shall be made parties to the action. (3) Pending the hearing of the action, the Court shall, in addition to any other powers, have power, upon the application of the dealer, to make such orders as the Court thinks just for the purpose of protecting the goods from damage or depreciation, including orders restricting or prohibiting the user of the goods or giving directions as to their custody. (4) On the hearing of the action, the Court may, without prejudice to any other power, make an order for the specific delivery of— (a) all the goods to the dealer; (b) all the goods to the dealer and postpone the operation of the order on condition that the hirer or any guarantor pays the unpaid balance of the hire purchase price at such times and in such amounts as the Court, having regard to the means of the hirer and of any guarantor, thinks just, and subject to the fulfilment of such other conditions by the hirer or a guarantor as the Court thinks just; or (c) a part of the goods to the dealer and for the transfer to the hirer of the dealer’s title to the remainder of the goods. (5) No order shall be made under subsection (4) (b) unless the hirer satisfies the Court that the goods are in his possession or control at the time when the order is made. (6) The Court shall not make an order transferring to the hirer the dealer’s title to a part of the goods unless it is satisfied that the amount which the hirer has paid in respect of the hire purchase price exceeds the price of that part of the goods by at least one half of the unpaid balance of the hire purchase price. (7) Where damages have been awarded against the dealer in the proceedings, the Court may treat the hirer as having paid in respect of the hire purchase price, in addition to the actual amount paid, the amount of the damages, or such part of them as the Court thinks fit, and the damages shall accordingly be remitted either in the whole or in part. (8) In this section— “order for the specific delivery of the goods” means an order for the delivery of the goods to the dealer without giving the hirer an option to pay their value; “price”, in relation to any goods, means such part of the hire purchase price as is assigned to those goods by the note or memorandum of the hire purchase agreement, or, where no such assignment is made, such part of the hire purchase price as the Court may determine. (9) Where, before the hearing of an action to which this section applies, the dealer has recovered possession of a part of the goods, the references in [Issue 1] H5 – 10 Revised Laws of Mauri the hirer an option to pay their value; “price”, in relation to any goods, means such part of the hire purchase price as is assigned to those goods by the note or memorandum of the hire purchase agreement, or, where no such assignment is made, such part of the hire purchase price as the Court may determine. (9) Where, before the hearing of an action to which this section applies, the dealer has recovered possession of a part of the goods, the references in [Issue 1] H5 – 10 Revised Laws of Mauritius subsection (4) to all the goods shall be construed as references to all the goods which the dealer has not recovered, and, where the parties have not agreed upon an adjustment of the hire purchase price in respect of the goods so recovered, the Court may for the purposes of subsection (4) (b) and (c) make such reduction of the hire purchase price and of the unpaid balance as the Court thinks just. (10) Where a dealer has recovered a part of the goods let under a hire purchase agreement, and the recovery was effected in contravention of section 11, this section shall not apply in relation to any action by the dealer to recover the remainder of the goods. [S. 12 amended by Act 1 of 1995.]