Ex Parte Vijay Construction (XP130/2020 ) [2020] SCSC 762 (15 October 2020);

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Application to 'hold on' to the prayers as averred and sought for in the affidavit would amount to an abuse of the process of this Court

SUPREME COURT OF SEYCHELLES

 

Reportable

[2020] SCSC 762

XP130/2020

 

In the matter between:

 

VIJAY CONSTRUCTION (PROPRIETARY) LIMITED           Applicant

(rep. by S. Rajasundaram)

 

 

Neutral Citation:   Ex Parte Vijay Construction Pty Ltd XP130/2020 [2020] SCSC 762

15 October 2020

Before:                   Govinden J

Summary:              Prayers to “hold on” to the reliefs prayed for in the winding petition is refused.

Heard:                    12 October 2020

Delivered:              15 October 2020

ORDER

Application to 'hold on' to the prayers as averred and sought for in the affidavit would amount to an abuse of the process of this Court.

 

 

RULING

 

 

GOVINDEN J

  1. The Petitioner in this matter has, through its representative, Mr. Vijay Patel, a Director of the Petitioner, filed an affidavit dated the 14th of October 2020, in which he makes a prayer that this Court “hold on” to the relief prayed for in his Petition dated the 5th of October, 2020 applying for winding up for the Petitioner. No reasons are given in the said affidavit for this prayer. The Deponent however goes on and aver that that the Ruling pending in a separate application filed in this matter for stay of all proceedings and actions, filed against the Petitioner, which was fixed to be delivered today, be rendered.
  2. This stay application which was heard on the 12th of October 2020, in MA182/2020, was made and heard under the provisions of Section 102 (1) of the Insolvency Act, herein after referred to as “the Act”, on the basis that the petition in this matter had been presented and was about to be heard.
  3. It is to be noted that another separate ancillary application is still pending in the winding up petition, it is MA191/20 in which the Petitioner is applying for a Provisional Liquidator to be appointed under section 112 of the Act, pending the making of the winding up Order.
  4. I have heard the submissions of the Learned Counsel of for the Petitioner on the affidavit, not to proceed with the prayers or winding up and instead to Rule on the application for stay. Having so heard him, and after considering the law, and the whole circumstances of the case, this Court sees that to grant the prayers sought for would imposed certain difficulties;
  1. It will be granting the prayers, which have not been properly grounded and founded on clear Legal provisions. The Learned Counsel, have been unable to cite the provision of the law, upon which the application to “hold on” is made.
  2. If the prayers in the affidavit were to be granted. It would prove unfair and prejudicial to some to some creditors of the Petitioner, who whilst they will see themselves unable to prosecute their Legal claims or actions, in pending Court cases, against the Petitioner, would also at the same time see themselves unable to lodge their claims in the liquidation of the Petitioner, which by Virtue of filing this Petition, is purportedly, unable to pay its debt. As a result of this of this stalemate, they will be somewhat potentially denied justice.
  3. Fulfilling the prayers in this affidavit would be wholly advantageous and self-serving to the Petitioner, who will see itself sheltered from Civil Suits and claims and executions of valid judgment. This protection would be on an ad infinitum basis and at the behest of the Petitioner. Who would have the final say, as to when the petition would be further prosecuted or the stay, Order would be lifted.
  1. The above findings has led this Court to the irresistible conclusion that granting the prayers, as averred and sought for in the said affidavit would amount to an abuse of the process of this Court. Section 102 (1) of the Act was meant to be an interim order pending a Winding up Order under Section 163 of the Act. It was not meant to be an open ended right of a Judgment debtor to stay Judicial process or claims against it.
  2. Accordingly, the prayer sought for in the said affidavit cannot be granted by this Court.

 

Signed, dated and delivered at Ile du Port on the 15th October 2020.

 

 

____________

Govinden J

Judge