One of the unsettling questions that lingers in the minds of creditors is how to secure or recover their debts. There are a number of enforcement routes that can help creditors to secure, as well as recover, their debts in Mauritius.
The trend in recent years has been to apply for an Attachment Order1 — largely because of swift process that it embraces. An Attachment Order can be issued in two situations: (i) one where the debt is based on an executory title or (ii) one where the debt is not based on an executory title. Regardless of the situation, the process used for an Attachment remains the quickest way to recover or secure a creditor's debt.
WHAT IS AN ATTACHMENT?
An Attachment (also known as "saisie arrêt") is a mechanism established and embraced by the Supreme Court of Mauritius whereby a creditor — the applicant — may have recourse to the intervention of the Judge in Chambers to secure or recover the debt owed to him by the debtor.
In effect, a creditor is seeking to forbid a third party, also known as "the garnishee", from disposing what the latter allegedly owes to the debtor. In simpler terms, if someone (the garnishee) owes the debtor money, an Attachment will allow the creditor to ask the Judge in Chambers to have it paid to the creditor instead. The Judge will also prevent the garnishee from disposing the assets until the final determination of the claim by the creditor.
An application for an Attachment Order is a conservative measure (because the garnishee is essentially prevented from dissipating the seized assets) it ultimately results in payment to the creditor by way of the sale of the seized assets.
AN EX-PARTE APPLICATION TO ATTACH ASSETS
Briefly, an application for an Attachment Order is made ex-parte before the Judge in Chambers. As the process is commenced without notice, the creditor has the comfort of knowing that the debtor will not have an opportunity to conceal the assets or otherwise interfere with the creditor's efforts.
The procedure to be adopted has been laid down in the leading authority of MCB vs. Sibartie Fils et Compagnie & Sibartie 1988 MR 66, which was recently reaffirmed by the Court of Civil Appeal in Mauritius Duty Free Paradise Co. Ltd v The Mauritius Commercial Bank Ltd & Anor 2022 SCJ 42 where the Court has set out the procedural steps as follows:
- Action to secure the debt in the hands of the garnishee;
- Action against the debtor;
- Action against garnishee; and
- The final step in the process of a "saisie-arrêt".
During the process, irrespective of the status of the creditor's debt, a creditor needs to ascertain certain essential elements for his application to be successful, as has been established under a string of authorities, one of which is Bomeubles & Cie Ltee v Banks 2015 SCJ 283, which provides that the creditor must show that the debt ("créance") owed:
i) is certain, of a fixed amount, and due ("certaine, liquide, et exigible"); or
ii) which otherwise appears to be valid in principle ("parait fondée en son principe"). The court in the said case explained that what the creditor must show is not that the debt is certain in principle but rather that the debt is valid in principle, i.e., the genuineness of the debt.
Therefore, any creditor contemplating an application for an Attachment Order must ensure that his debt (whether it is based on an executory title or not) is one which is either certain, of a fixed amount, and due or one which otherwise appears to be valid in principle.
A USEFUL DEBT ENFORCEMENT TOOL
An application for an Attachment Order is a useful debt enforcement tool, which essentially bypasses the debtor and goes to a third party to obtain payment of a debt. It removes the reliance upon the debtor to pay off the debt. The Courts in Mauritius have been dealing with an increasing number of applications for Attachment Orders recently as creditors seem to have realised that this is a sophisticated tool which allows them to have recourse to a remedy that would prevent a defendant from improperly dissipating assets pending the determination of their main dispute.
Although prospective litigants may have recourse to other means of relief such as by way of traditional plaint or by means of a summary remedy such as injunction, such measures do not come without their downsides. To that end, attachment orders seem to yield more comfort to creditors when it comes to securing their debts.
1. Legal professionals also refer to an attachment order as an "interim attachment order". These two terms are used interchangeably; the principles and procedure remain the same.
Note 1: Translations of the material into English are intended solely as a convenience to the non-French reading public. Appleby has attempted to provide a translation of the original material into English but due to nuances in translating, slight differences may exist. Always refer to the original texts.
Note 2: This article is for general guidance only and does not constitute definitive legal advice. Please contact one of our lawyers if you require more detailed information.
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