Section 24: Reopening of moneylending transactions

24. Reopening of moneylending transactions (1) Where proceedings are taken in any Court by any person for the recovery of any money lent, or the enforcement of any agreement or security made or taken in respect of money lent, the plaintiff shall produce a statement of his account as specified in section 20. (2) (a) Where in any proceedings under subsection (1) there is evidence which satisfies the Court that the interest charged in respect of the sum actually lent is harsh and unconscionable having regard to all the circumstances and notwithstanding that it does not exceed the rate legally chargeable, the Court may— (i) reopen the transaction and take an account between the lender and the person sued; [Issue 1] M66 – 12 Revised Laws of Mauritius (ii) notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, reopen any account already taken between them and relieve the person sued from payment of any sum in excess of the sum adjudged by the Court to be fairly due in respect of the principal, interest and charges, as the Court having regard to the risk and all the circumstances, thinks reasonable. (b) Where any excess has been paid or allowed in account by the debtor, the Court may order the creditor— (i) to repay it and may set aside, either in whole or in part, revise or alter, any security given or agreement made in respect of money lent; and (ii) where the lender has parted with the security, to indemnify the borrower or any other person prejudiced by it. (3) Where in any proceedings under subsection (1), there is evidence which satisfies the Court that default in payment of any sum due to the plaintiff under a contract for the loan of money has been made by the borrower, and it is proved that any further amount is outstanding under the contract but not yet due, the Court may determine the contract and order the principal outstanding to be paid to the plaintiff with such interest on the principal as the Court may allow up to the date of payment. (4) (a) Any Court in which proceedings may be taken for recovery of money lent by a person shall have and may— (i) at the instance of the borrower, surety or other person liable, exercise the same powers as may be exercised under this section where proceedings are taken for the recovery of money lent; and (ii) notwithstanding any provision or agreement to the contrary or that the time for repayment of the loan or any of the instalments is not due, entertain any application under this Act by the borrower or surety or other person liable. (b) The Court may exercise its powers under this subsection, notwithstanding that the right of action for recovery of the money lent is time barred. (5) Subsections (1) to (4) shall apply to any transaction which, whatever its form may be, is substantially one of moneylending. (6) This section shall not affect the rights of any bona fide assignee or holder for value without notice. (7) — (8) Nothing in article 1341 of the Code Civil Mauricien shall be deemed to preclude the Court from satisfying itself that the transaction— (a) is harsh and unconscionable; M66 – 13 [Issue 1] Moneylenders Act (b) is otherwise such that a Court of equity would give relief; or (c) must be reopened, as provided in this section.