Balgobin M. L. v. Maubank Ltd & Anor 2024 SCJ 145 – Case Summary – Insolvency/Bankruptcy

The Court of Civil Appeal (CCA) delivered an interesting
judgment on the adequacy of affidavit evidence when making a
bankruptcy order. The CCA, acting solely on the basis of affidavit
evidence, upheld an order of the Bankruptcy Court adjudging the
appellant (Mr Balgobin) bankrupt pursuant to Section 8 of the
Insolvency Act.

The issues raised on appeal by the Appellant and which the CCA
had to determine on were:

• Whether the trial judge could act solely on the affidavit
  evidence of the petitioner to adjudge the appellant bankrupt
  without hearing further evidence under oath in support of the
  petition; and




• Whether the trial Judge was wrong in relying on the
  “Statement of Liabilities” in order to find the debt
  proved.

On the first issue, the CCA held that the Judge could decide the
case only on the basis of the evidence placed before her and the
only evidence before her was the sworn affidavit evidence of the
bank, inclusive of a “Statement of Liabilities“.
This evidence was not challenged in Court due to the
appellant’s absence at the hearing. Since all the requirements
for the issue of the bankruptcy order had been met, the affidavit
evidence was sufficient for the Judge to provide its determination
without any need to hear evidence under oath.

With regards to the second issue, the rationale of the CCA was
that, at no time, the debt was challenged nor any counterclaim
presented to the Court. On the requirement for the debt to be a
“somme certaine” at the time of adjudication,
the CCA concluded that the terms for repayment were quantifiable
and undisputed, the more so that there was an acknowledgement of
the debt by the Appellant which the latter chose neither to deny
nor to challenge.

The appeal was consequently dismissed.

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