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In a judgment delivered on 15 April 2026 in Avrillon D.P.P. v The Registrar General, the Supreme Court of Mauritius quashed a decision of the Registrar General refusing to inscribe two loan deeds secured by conventional mortgages (hypothèques conventionnelles) in the register of the Conservator of Mortgages.
The Court held that the refusal was ultra vires the Registrar General’s powers. The loan agreements concerned were lawful personal loans concluded between a father and his son.
Background
The Registrar General declined the request for registration and inscription on the basis that "the two loan agreements are illicit transactions, as such it is legally in order for the Conservator of Mortgages to decline to give publicity to the transactions”.
The Registrar General’s position
In support of his refusal, the Registrar General relied on several grounds. Initially, he alleged non-compliance with the Moneylenders Act (which was repealed in 2013). He subsequently relied on the Banking Act, contending that the lender was required to hold a moneylender's licence, and also referred to the Borrowers' Protection Act.
Ultimately, the Registrar General submitted that the transactions were illicit and contrary to public policy within the meaning of articles 6 and 1131 of the Code Civil Mauricien ("CCM").
The Court’s findings
The Supreme Court found no evidence that the lender was engaged in the "business of moneylending" within the meaning of section 2 of the Banking Act, whether as principal or agent. The loans were one-off personal advances made by a father to his son pour l'aider dans ses besoins et affaires, and the agreed interest rates could not be regarded as abusive.
The Court further confirmed that, under articles 1905 and 1907 of the CCM, private individuals are permitted to enter into loan agreements providing for the payment of interest at a rate agreed between the parties, provided that such rate is stipulated in writing.
Key principles confirmed
This judgment reaffirms that:
- A private individual who grants a one-off personal loan to a family member at non-abusive interest rates does not fall within the definition of a "moneylender" under the Banking Act and does not require a licence from the Bank of Mauritius.
- The Registrar General, acting in his capacity as Conservator of Mortgages, is required to inscribe deeds that are regularly presented for registration and may not refuse inscription on the basis of his own assessment of the legality of the underlying transaction, save where the hypothecary right is manifestly devoid of legal existence.
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