Section 108: Appointment of provisional liquidator

108. Appointment of provisional liquidator (1) The Court may, on the presentation of a petition under section 102 and at any time thereafter but before the making of a winding up order, and on being satisfied that— (a) there are reasonable grounds for believing that the company is unable to pay its debts; or [Issue 9] I14 – 64 Revised Laws of Mauritius (b) any of the property of the company available to meet its debts is at risk or may be removed from Mauritius, appoint the Official Receiver or any other qualified person to be provisional liquidator who shall, subject to such limitations and restrictions as the Court may specify in the order, have and may exercise all the functions and powers of a liquidator. (2) The provisional liquidator shall, on his appointment under subsection (1), he forthwith take into his custody or control all the property, movable or immovable, including all bank accounts and other financial assets, to which the company is or appears to be entitled. (3) Where a winding up order is made— (a) the Official Receiver shall, unless another person has been appointed, become the provisional liquidator and continue to act as such until he or another person becomes liquidator and is capable of acting as such; (b) the Official Receiver shall, where no liquidator is appointed, summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the Court for appointing a liquidator in the place of the Official Receiver; continued on page I14 – 65 I14 – 64 (1) [Issue 9] appointed, become the provisional liquidator and continue to act as such until he or another person becomes liquidator and is capable of acting as such; (b) the Official Receiver shall, where no liquidator is appointed, summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the Court for appointing a liquidator in the place of the Official Receiver; continued on page I14 – 65 I14 – 64 (1) [Issue 9] Revised Laws of Mauritius (c) the Court may appoint a liquidator and, if there is a difference between the determination of the meetings of the creditors and contributories in that respect, make such order as it thinks fit; (d) the Official Receiver shall, where a liquidator is not appointed by the Court, be the liquidator; (e) subject to paragraph (f), the Official Receiver shall be the liquidator during any vacancy in the office of liquidator; (f) any vacancy in the office of a liquidator appointed by the Court may be filled by the Court. (4) A meeting of creditors under this section shall be called and conducted in accordance with the First Schedule. (5) Where the names and addresses of all creditors are not known to the Official Receiver, public notice of the meeting shall be advertised in at least 2 daily newspapers of wide circulation. (6) The Official Receiver shall not be required to call a meeting of creditors under subsection (3) (b) where— (a) he considers, having regard to the assets and liabilities of the company, the likely result of the liquidation of the company, and any other relevant matters, that no such meeting should be held; (b) he gives notice in writing to the creditors stating— (i) that he does not consider that a meeting should be held; (ii) the reasons for his views; and (iii) that no such meeting will be called unless a creditor gives notice in writing to the liquidator, within 28 days after receiving the notice, requiring a meeting to be called; and (c) no notice requiring the meeting to be called is received by the Official Receiver within that period. (7) A notice under subsection (6) (b) shall be given to every known creditor— (a) where section 117 (1) (c) applies, together with the report and notice referred to in that subsection; or (b) where that subsection is not applicable, at the time the Official Receiver would have been required to send the report and notice referred to in that subsection if it were applicable. (8) A liquidator, other than the Official Receiver, appointed by the Court may resign or, on good cause shown, be removed from office by the Court. (9) Where the Court appoints more than one liquidator, it shall declare whether anything by this Act required, or authorised to be done by the liquidator, is to be done by all or any one or more of the persons appointed. I14 – 65 [Issue 3] Insolvency Act