Ex Parte Vijay Construction Pty Ltd (MA 33/2021 (arising in XP 130/2020)) [2021] SCSC 850 (1 March 2021)

SUPREMECOURT OF SEYCHELLES Reportable [2021] sese O-D MA 33/21 (Arising XP 130/20) Applicant In the ex parte matter of: VIJAY CONSTRUCTION (PROPRIETARY) LIMITED (rep. by S Rajasundaram) And IN THE MATTER OF THE COMPANIES ACT 1972 AND THE INSOLVENCY ACT Neutral Citation: Ex Parte Vijay Construction Pty Ltd MA33/21 2021 (Arising in XP Before: Summary: Heard: Delivered: 130120)[2020] sese (~..2021). Govinden ci Application for appointment of the Official Receiver as the Provisional Liquidator and previous Ruling of the court on the same subject. 15t of March 2021 1st of March 2021 According to Section 112.(1) of the Insolvency Act 2013, herein after also referred to as "the Act ", the Court may appoint the Official Receiver or any other qualified person as provisional liquidator at any time after the presentation of a winding up petition, if- (a) there are reasonable grounds to believe that the company is unable to pay its debts,' or (b) any of the property of the company available to meet its debts is at risk of being removed from Seychelles. liquidator is appointed by the Court under subsection (1), the Court may (2) Where a provisional restrict his or her powers in such manner as it thinks fit by the order appointing him or her or by a subsequent order, subject to any restriction so imposed, the provisional the same powers and be subject to the same liabilities as a liquidator appointed after the making liquidator shall have . of a winding up order. Accordingly, in the alternative qualified I find that either a qualified persons cannot be appointed at the same time. the Official Receiver is appointed as the Provisional Liquidator or person or persons are appointed. Both the Receiver and other the Petitioner In this case whilst Eastern European Engineering singly or together with the Registrar of the Supreme Court as the Provisional Liquidator(s). the ( EEEL) is seeking to appoint either Mr Egbert Moustache the Official Receiver, is seeking to appoint the other party, (Ltd) The court however, cannot liquidators, given that the Registrar cannot be appointed as a Liquidator as she will be put in a position of contlict with her court duties. She is an officer of the Supreme Court, who is indirectly concerned in this case. in law appoint jointly the persons proposed by EEEL as joint It rest to be decided then who between the Official Receiver and Mr Moustache should be appointed. Here, for the reasons that this court gave in its Ruling in MA 191/20, arising in Exp this court is still of the view that appointing a Provisional Liquidator would lead to the 130/20, court making a finding of fact and prejudging the core issues averred in the Winding Up petition. At any rate the court takes notice that the Winding up Petition would be heard very shortly, after which the court would be duty bound to appoint a Liquidator as a matter of law. The court is therefore of the view that this would substantially satisfy any needs that has arisen with regards to the appointment of a provisional Liquidator in this case. Accordingly, the application for the appointment ofa provisional liquidator in this matter is hereby dismissed Signed, dated and delivered at IIe du Port on llh March 2021 R Govinden Chief Justice. 2