British dominions or elsewhere, hold property of every description, make contracts, sue and be sued, enter into any engagements binding on himself and his successors in office, and do all other acts necessary or expedient to be done in the execution of his office. Appointment. 77.-(1) The creditors may, if they think fit, appoint more persons than one to the office of trustee, and when more persons than one are appointed they shall declare whether any act required or authorised to be done by the trustee is to be done by all or any one or more of such persons, but all such persons are in this Act included under the term trustee," and shall be joint tenants of the property of the bankrupt. (2) The creditors may also appoint persons to act as trustees in succession in the event of one or more of the persons first named declining to accept the office of trustee, or failing to give security, or of the appointment of any such person not being certified by the Board of Trade. 78.—(1) If a vacancy occurs in the office of a trustee, the creditors in general meeting may appoint a person to fill the vacancy, and thereupon the same proceedings shall be taken as in the case of a first appoint ment. (2) The official receiver shall, on the requisition of any creditor, summon a meeting for the purpose of filling any such vacancy. (3) If the creditors do not, within three weeks after the occurrence of a vacancy, appoint a person to fill the vacancy, the official receiver shall report the matter to the Board of Trade, and the Board may appoint a trustee; but in such case the creditors or committee of inspection shall have the same power of appointing a trustee in the place of the person so appointed by the Board of Trade as in the case of a first appoint ment. (4) During any vacancy in the office of trustee the official receiver shall act as trustee. Control over Trustee. 79.-(1) Subject to the provisions of this Act, the trustee shall, in the administration of the property of the bankrupt and in the distribution thereof amongst his creditors, have regard to any directions that may be given by resolution of the creditors at any general meeting, or by the committee of inspection, and any directions so given by the creditors at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection. (2) The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors, by resolution, either at the meeting appointing the trustee or otherwise may direct, and it shall be lawful for any creditor, with the concurrence of one-sixth in value of the creditors (including himself), at any time to request the trustee or official receiver to call a meeting of the creditors, and the trustee or official receiver shall call such meeting accordingly within fourteen days: Provided that the person at whose instance the meeting is summoned shall deposit with the trustee or the official receiver, as the case may be, a sum sufficient to pay the costs of summoning the meeting, such sum to be repaid to him out of the estate if the creditors or the court so direct. (3) The trustee may apply to the court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy. (4) Subject to the provisions of this Act, the trustee shall use his own discretion in the management of the estate and its distribution among the creditors. Power to appoint joint or successive trustees. Proceedings in case of vacancy in office of trustee. Discretionary powers of control thereof. trustee and Provision for creditors residing at a distance, &c. Right of creditor who has not proved debt before declaration of a dividend. Interest on debts. Final dividend. 64.-(1) In the calculation and distribution of a dividend the trustee shall make provision for debts provable in bankruptcy appearing from the bankrupt's statements, or otherwise, to be due to persons resident in places so distant from the place where the trustee is acting that in the ordinary course of communication they have not had sufficient time to tender their proofs, or to establish them if disputed, and also for debts provable in bankruptcy the subject of claims not yet determined. (2) He shall also make provision for any disputed proofs or claims, and for the expenses necessary for the administration of the estate or otherwise. (3) Subject to the foregoing provisions, he shall distribute as dividend all money in hand. 65. Any creditor who has not proved his debt before the declaration of any dividend or dividends shall be entitled to be paid out of any money for the time being in the hands of the trustee any dividend or dividends he may have failed to receive before that money is applied to the payment of any future dividend or dividends, but he shall not be entitled to disturb the distribution of any dividend declared before his debt was proved by reason that he has not participated therein. 66.—(1) Where a debt has been proved, and the debt includes interest, or any pecuniary consideration in lieu of interest, such interest or consideration shall, for the purposes of dividend, be calculated at a rate not exceeding five per centum per annum, without prejudice to the right of a creditor to receive out of the estate any higher rate of interest to which he may be entitled after all the debts proved in the estate have been paid in full. (2) In dealing with the proof of the debt, the following rules shall be observed: (a) Any account settled between the debtor and the creditor within three years preceding the date of the receiving order may be examined, and, if it appears that the settlement of the account forms substantially one transaction with any debt alleged to be due out of the debtor's estate (whether in the form of renewal of a loan or capitalisation of interest or ascertainment of loans or otherwise), the account may be re-opened and the whole transaction treated as one; (b) Any payments made by the debtor to the creditor before the receiving order, whether by way of bonus or otherwise, and any sums received by the creditor before the receiving order from the realisation of any security for the debt, shall, notwithstanding any agreement to the contrary, be appropriated to principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate; (c) Where the debt due is secured and the security is realised after the receiving order, or the value thereof is assessed in the proof, the amount realised or assessed shall be appropriated to the satisfaction of principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate. 67. (1) When the trustee has realised all the property of the bankrupt, or so much thereof as can, in the joint opinion of himself and of the committee of inspection, be realised without needlessly protracting the trusteeship, he shall declare a final dividend, but before so doing he shall give notice in manner prescribed to the persons whose claims to be creditors have been notified to him, but not established to his satisfaction, that if they do not establish their claims to the satisfaction of the court within a time limited by the notice, he will proceed to make a final dividend, without regard to their claims. (2) After the expiration of the time so limited, or, if the court on application by any such claimant grants him further time for establishing his claim, then on the expiration of such further time, the property of the bankrupt shall be divided among the creditors who have proved their debts, without regard to the claims of any other persons. 68. No action for a dividend shall lie against the trustee, but, if No action for the trustee refuses to pay any dividend, the court may, if it thinks fit, dividend. order him to pay it, and also to pay out of his own money interest thereon for the time that it is withheld, and the costs of the application. 69. The bankrupt shall be entitled to any surplus remaining after payment in full of his creditors, with interest, as by this Act provided, and of the costs, charges, and expenses of the proceedings under the bankruptcy petition. Right of bank rupt to surplus. PART III. OFFICIAL RECEIVERS AND STAFF OF BOARD OF TRADE. 70. (1) There shall continue to be official receivers of debtors' estates, who shall be appointed and removable by, and shall act under the general authority and directions of, the Board of Trade, but shall also be officers of the courts to which they are respectively attached. (2) The number of official receivers, and the districts to be assigned to them, shall be fixed by the Board of Trade, with the concurrence of the Treasury. One person only shall be appointed for each district unless the Board of Trade, with the concurrence of the Treasury, otherwise direct; but the same person may, with the like concurrence, be appointed to act for more than one district. (3) Where more than one official receiver is attached to the court, such one of them as is for the time being appointed by the court for any particular estate shall be the official receiver for the purposes of that estate. The court shall distribute the receiverships of the particular estates among the official receivers in the prescribed manner. Official receivers of debtors' estates. 71.—(1) The Board of Trade may by order direct that any of its Deputy for officers mentioned in the order shall be capable of discharging the duties official receiver. of any official receiver during any temporary vacancy in the office, or during the temporary absence of any official receiver through illness or otherwise. (2) The Board of Trade may, on the application of an official receiver, at any time by order nominate some fit person to be his deputy, and to act for him for such time not exceeding two months as the order may fix, and under such conditions as to remuneration and otherwise as may be prescribed. (3) The Board of Trade may by order, for reasons to be stated therein, direct in any special case that any of its officers mentioned in the order shall be capable of discharging any portion of the duties of the official receiver for the performance of which it is, in the opinion of the Board, expedient that some person other than the official receiver be appointed, provided that no additional expense be thereby incurred. 72. (1) The duties of the official receiver shall have relation both to the conduct of the debtor and to the administration of his estate. (2) An official receiver may, for the purpose of affidavits verifying proofs, petitions, or other proceedings under this Act, administer oaths. (3) All provisions in this or any other Act referring to the trustee in a bankruptcy shall, unless the context otherwise requires, or the Act otherwise provides, include the official receiver when acting as trustee. (4) The trustee shall supply the official receiver with such information, and give him such access to and facilities for inspecting the bankrupt's books and documents, and generally shall give him such aid, as may be requisite for enabling the official receiver to perform his duties under this Act. Status of official receiver. 73. As regards the debtor, it shall be the duty of the official receiver(a) To investigate the conduct of the debtor and to report to the court, stating whether there is reason to believe that the debtor has committed any act which constitutes a misdemeanour under this Act or any enactment repealed by this Act, or which would justify the court in refusing, suspending or qualifying an order for his discharge; (b) To make such other reports concerning the conduct of the debtor as the Board of Trade may direct; (c) To take such part as may be directed by the Board of Trade in the public examination of the debtor; (d) To take such part and give such assistance in relation to the prosecution of any fraudulent debtor as the Board of Trade may direct. 74.-(1) As regards the estate of a debtor, it shall be the duty of the official receiver (a) Pending the appointment of a trustee, to act as interim receiver of the debtor's estate, and, where a special manager is not appointed, as manager thereof; (b) To authorise the special manager to raise money or make advances (c) To summon and preside at the first meeting of creditors; (f) To advertise the receiving order, the date of the creditors' first (g) To act as trustee during any vacancy in the office of trustee. (2) For the purpose of his duties as interim receiver or manager, the official receiver shall have the same powers as if he were a receiver and manager appointed by the High Court, but shall, as far as practicable, consult the wishes of the creditors with respect to the management of the debtor's property, and may for that purpose, if he thinks it advisable, summon meetings of the persons claiming to be creditors, and shall not, unless the Board of Trade otherwise order, incur any expense beyond such as is requisite for the protection of the debtor's property or the disposing of perishable goods: Provided that, when the debtor cannot himself prepare a proper statement of affairs, the official receiver may, subject to any prescribed conditions, and at the expense of the estate, employ some person or persons to assist in the preparation of the statement of affairs. (3) Every official receiver shall account to the Board of Trade and pay over all moneys and deal with all securities in such manner as the Board from time to time direct. 75. The Board of Trade may, with the approval of the Treasury as to number, appoint such officers, including official receivers, clerks, and servants, as may be required by the Board for the execution of this Act, and may dismiss any such officer, clerk, or servant. Official name of trustee. PART IV. TRUSTEES IN BANKRUPTCY. Official Name. 76. The official name of a trustee in bankruptcy shall be " the trustee of the property of a bankrupt " (inserting the name of the bankrupt), and by that name the trustee may, in any part of the British dominions or elsewhere, hold property of every description, make contracts, sue and be sued, enter into any engagements binding on himself and his successors in office, and do all other acts necessary or expedient to be done in the execution of his office. Appointment. 77.-(1) The creditors may, if they think fit, appoint more persons than one to the office of trustee, and when more persons than one are appointed they shall declare whether any act required or authorised to be done by the trustee is to be done by all or any one or more of such persons, but all such persons are in this Act included under the term trustee," and shall be joint tenants of the property of the bankrupt. (2) The creditors may also appoint persons to act as trustees in succession in the event of one or more of the persons first named declining to accept the office of trustee, or failing to give security, or of the appointment of any such person not being certified by the Board of Trade. 78.—(1) If a vacancy occurs in the office of a trustee, the creditors in general meeting may appoint a person to fill the vacancy, and thereupon the same proceedings shall be taken as in the case of a first appoint ment. (2) The official receiver shall, on the requisition of any creditor, summon a meeting for the purpose of filling any such vacancy. (3) If the creditors do not, within three weeks after the occurrence of a vacancy, appoint a person to fill the vacancy, the official receiver shall report the matter to the Board of Trade, and the Board may appoint a trustee; but in such case the creditors or committee of inspection shall have the same power of appointing a trustee in the place of the person so appointed by the Board of Trade as in the case of a first appoint ment. (4) During any vacancy in the office of trustee the official receiver shall act as trustee. Power to appoint joint or successive trustees. Proceedings in case of vacancy in office of trustee. Control over Trustee. 79.-(1) Subject to the provisions of this Act, the trustee shall, in the administration of the property of the bankrupt and in the distribution thereof amongst his creditors, have regard to any directions that may be given by resolution of the creditors at any general meeting, or by the committee of inspection, and any directions so given by the creditors at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection. (2) The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors, by resolution, either at the meeting appointing the trustee or otherwise may direct, and it shall be lawful for any creditor, with the concurrence of one-sixth in value of the creditors (including himself), at any time to request the trustee or official receiver to call a meeting of the creditors, and the trustee or official receiver shall call such meeting accordingly within fourteen days: Provided that the person at whose instance the meeting is summoned shall deposit with the trustee or the official receiver, as the case may be, a sum sufficient to pay the costs of summoning the meeting, such sum to be repaid to him out of the estate if the creditors or the court so direct. (3) The trustee may apply to the court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy. (4) Subject to the provisions of this Act, the trustee shall use his own discretion in the management of the estate and its distribution among the creditors. Discretionary powers of trustee and control thereof. |