MCB made an application for the appointment of a receiver manager under the Insolvency Act 2009 (Insolvency Act) or alternatively, for an order under article 1961 of the Mauritian Civil Code for the séqueste judiciaire of the assets of the respondent, Realpoint (Mauritius) Limited including the shares held by the respondent in Varun Shipping Co Ltd (VSCL).
In connection with the facility, the respondent granted to MCB an irrevocable power of attorney entitling MCB to sell, transfer or dispose of the VSCL shares. Additionally, the respondent pledged the VSCL shares in favour of MCB. The pledge of shares was never perfected.
Because the pledge of shares was never perfected, the Court was not satisfied that the shares in VSCL were 'secured'; there was also no evidence to indicate that either the facility agreement or the power of attorney constituted a charge or gage (pledge) within the meaning of the Insolvency Act. In order for a receiver to be appointed by the Court, the Insolvency Act requires that the asset constitutes secured property. Consequently, the Court held that the application did not meet the requirements for appointment of a receiver by the Court under the Insolvency Act and dismissed the application.
The Court then considered MCB's application for séquestre. One of the criteria for granting the séquestre was that there is a danger for the applicant to leave the assets in the hand of the other party.
The Court was convinced that the criteria for granting the séquestre were satisfied in the present case; the interests of MCB were unquestionable in jeopardy and the appointment of a guardien judiciaire in respect of the VSCL shares was necessary to safeguard MCB's interests and to preserve its rights under the power of attorney. The Court therefore granted the order for séquestre and appointed a guardien judiciaire mandated to take all steps that are necessary to safeguard the VSCL shares.
* Mauritius Commercial Bank Ltd v Realpoint (Mauritius) Limited, 2015 SCJ 378
** A séquestre judiciaire is a procedure under the Civil Code where a court orders that property of a party be administered by a guardien judiciaire until the order is lifted or the assets are sold.
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