FOK HING TAN THEO FOK KOW v COOWAR Y.

2020 SCJ 143

SC/COM/PET/00120/2019

THE SUPREME COURT OF MAURITIUS

(Bankruptcy Division)

In the matter of:-

Fok Hing Tan Theo Fok Kow

Petitioner

v.

Yassen Coowar
Respondent

JUDGMENT

This is a petition for a bankruptcy order against the respondent pursuant to

section 4 (1) (a) of the Insolvency Act 2009 (“the Act”) for failure to comply with a
bankruptcy notice under section 4 (2) (a) (i) of the Act.

The bankruptcy petition was lodged on 27 February 2019. In the affidavit in

support of the petition, it has been averred that the respondent who has been
domiciled in Mauritius for the past three years is indebted to the petitioner in the sum
of Rs 2,729,893 for goods sold and delivered. On 20 April 2016, the respondent
signed an acknowledgement of debt in the sum of Rs 1,848,000.

It is also averred in the petitioner’s affidavit that on 21 January 2019, a

bankruptcy notice dated 16 January 2019 was served personally on the respondent
requesting him to pay the sum of Rs 2,729,893 in addition to costs amounting to
Rs20,000. The respondent’s failure to comply with the said notice has given rise to
the petition for the bankruptcy order. It is further averred in the affidavit that the sum
claimed is “une somme certaine”, liquidated, due and demandable.
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By way of letter dated 14 March 2019, the respondent requested from the
Court a delay to retain the services of legal advisers. However on 15 July 2019, when
the case was called for merits, he informed the Court that he would not retain the
services of legal advisers and that he would conduct the case himself. After the
petitioner deposed in Court, the respondent then stated that he would retain the
services of Counsel. The Court exceptionally acceded to his request and fixed the
case on 10 September 2019 for continuation. On 10 September 2019, the
respondent informed the Court that he would not retain the services of Counsel and
that he would appear inops consilii. The respondent did not file any affidavit in
rebuttal to substantiate his defence.

The petitioner deposed in Court to the effect that he is a “bayant” and trades
in fish. Since some years ago, he has been selling fresh fish on credit to the
respondent who in turn took deliveries of the fish and paid him the sum due after he
would have sold the fish. After deliveries of several consignments of fish, the
respondent failed to pay the petitioner the sums due. On 20 April 2016, the
respondent signed an acknowledgement of debt in the sum of Rs 1,848,000.
Afterwards, the petitioner, on three occasions, delivered fish on credit to him and on
each occasion, the latter failed to pay him the sum due. Since then, he stopped
delivering fish on credit to the respondent.

The respondent did not cross-examine the petitioner in Court.

The respondent deposed in Court and explained that he took deliveries of

consignments of fresh fish from the petitioner whenever the latter disembarked them
from his boat. He then in turn sold the fish to hotels, restaurants and fishmongers
and after one week he would collect money from the purchasers and would pay back
the amount due to the petitioner. Both the petitioner and the respondent maintained
the existence of the above business arrangement as having being run over quite a
number of years. The respondent also stated that after having signed an
acknowledgement of debt, document B2, he paid the petitioner the sum of
Rs1,500,000 in several instalments and hence he is not indebted to him.

Under cross-examination, the respondent admitted that as at 20 April 2016,

he owed the petitioner the sum of Rs 1,848,000 representing the sale price for fish
and interest thereof. He also admitted that the acknowledgement of debt was a
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guarantee for the petitioner to continue selling fish to him. However, he denied that
the petitioner continued to deliver fish to him after 20 April 2016. He also stated that
after collecting money from fishmongers and other retailers, he paid back the
petitioner in cash.

Section 8 of the Act enumerates the circumstances which constitute a failure

to comply with a bankruptcy notice and reads as follows:

“8. Failure to comply with bankruptcy notice


(1) There shall be a failure to comply with a bankruptcy notice where the
requirements of subsection (2) or (3) are satisfied.

(2) The requirements of this subsection are that –

(a) a creditor has obtained a final judgment or a final order against

the debtor for any amount;

(b) execution of the judgment or order has not been stayed by a

Court;

(c) the debtor has, within 42 days before the date of the petition
for a bankruptcy order, been served with a bankruptcy notice;
and

(d) the debtor has not, within the time limit specified in subsection
(4), –

(i) complied with the requirements of the notice; or

(ii) satisfied the Court that he has a cross-claim against

the creditor.

(3) The requirements of this subsection are that –

(a) the debtor is indebted to the creditor in relation to a provable

debt;

(b) the debtor has within 42 days before the date of the petition
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for a bankruptcy order been served with a bankruptcy notice;

(c) the debtor has not within the time limit specified in subsection
(4) –

(i) complied with the requirements of the notice; or

(ii) satisfied the Court that the debtor has a cross-claim

against the creditor; and

(d) the bankruptcy notice informs the debtor that if the debtor
disputes the debt or claims that any indebtedness on the part
of the debtor to the creditor is less than 50,000 rupees, the
debtor may appear before the Court in opposition to any
petition filed by the creditor to have the debtor adjudicated
bankrupt and provide a cause that –

(i) he does not owe a debt to the creditor; or

(ii) that he does owe a debt to the creditor, but the debt is
less than 50,000 rupees.

(4) The time limit referred to in subsection (2)(d) and subsection (3)(c)
is –

(a) where the debtor is served with the bankruptcy notice in

Mauritius, 14 days after service; or

(b) where the debtor is served with the bankruptcy notice outside
Mauritius, the time specified in the order of the Court permitting
service outside Mauritius.

(5) In this section, –

(a) a creditor who has obtained a final judgment or a final order

includes a person who is for the time being entitled to enforce
a final judgment or final order;
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(b) where a Court has given permission for enforcing an arbitration

award that the debtor pay money to the creditor –

(i) final order includes the arbitration award; and

(ii) proceedings include the arbitration proceedings in

which the award was made;

(c) a “cross-claim” means a counterclaim, set-off or cross-demand

that –

(i) is equal to, or greater than, the judgment debt or the

amount that the debtor has been ordered to pay; and

(ii) the debtor could not use as a defence in the action or

proceedings in which the judgment or the order, as the
case may be, was obtained.”

For a bankruptcy order to be issued against the respondent, it is imperative

for the petitioner to prove that the respondent is his debtor in the sum of
Rs2,729,893. It is not the contention of the petitioner that there was a final judgment
against the respondent. The issue, therefore, to be determined is whether the
petitioner has a “provable debt” under section 8(3)(a) of the Act. Section 8(1) of the
Act provides that failure to comply with a bankruptcy notice is satisfied if the debtor is
indebted to the creditor in respect of a provable debt.

A provable debt is defined in section 305 of the Act as follows:

“305. Provable debt and proof of debt

(1) A provable debt is a present, future, certain or contingent debt or

liability which a creditor may prove in a bankruptcy or a winding up
and that a debtor owes –

(a) at the time of adjudication or in the case of a company on the

commencement of the winding up; or
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(b) after adjudication but before discharge or in the case of a

company after the commencement of the winding up and
before dissolution,

by reason of an obligation incurred by the debtor before adjudication or

dissolution as the case may be.”

The petitioner and the respondent have in their depositions in Court agreed to
the long-standing business arrangement. The respondent has also agreed having
signed the acknowledgement of debt, document B, as a guarantee for the petitioner
to continue delivering consignments of fresh fish to him.

Having considered the evidence of both parties, I do not believe the

respondent’s version that he paid Rs 1,500,000 out of the sum of Rs 1,848,000 and
that he did not take deliveries of fresh fish from the petitioner after having signed
document B. In fact the respondent was an unconvincing witness who merely
repeated that he paid the debt due without producing any proof or evidence to
substantiate any alleged payments made by him. Furthermore, he could not give an
explanation as to why the petitioner stopped delivering fresh fish to him in spite of the
long-standing business arrangement. The respondent did not also convince me as a
witness of truth, he struck me as a shrewd person who is trying to avoid payment due
as mentioned in the bankruptcy notice.

On the other hand, the petitioner deposed in a straightforward manner and

explained the business relationship with the respondent which had been going on for
many years. The acknowledgement of debt was signed as a guarantee to give him a
comfort to continue delivering fresh fish to the respondent and he stopped doing
business with the respondent when the latter failed to pay him the sum of
Rs1,848,000 as mentioned in document B and for three further more consignments
as summed up in the bankruptcy notice.

For all the above reasons, I find that the respondent is indebted to the
petitioner in a provable debt in the sum of Rs 2,720,893 in relation to goods sold and
delivered. I also find that the respondent has failed to comply with the bankruptcy
notice served on 21 January 2019 and enjoining him to pay the said sum within 14
days.
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In the circumstances, I find it reasonable to issue a bankruptcy order against

the respondent and adjudge him bankrupt today 26 June 2020 at 13.15 hrs.

G. Jugessur-Manna
Judge

26 June 2020

For Petitioner: Mr Attorney G Ng Wong Hing –

Mrs V Bunwaree-Goburdhun, of Counsel