|
Essential (Protection of Depositors) Regulations 1986
PU(A) 237/1986
Essential (Protection of Depositors) Regulations 1986
| Date of publication in the Gazette | 23-Jul-1986 |
| EMERGENCY (ESSENTIAL POWERS) ACT 1979 | |||||||||
| ESSENTIAL (PROTECTION OF DEPOSITORS) REGULATIONS 1986 | |||||||||
| Act 216. | IN exercise of the powers conferred by section 2 of the Emergency (Essential Powers) Act 1979, the Yang di?Pertuan Agong makes the following regulations: | ||||||||
| ARRANGEMENT OF REGULATIONS | |||||||||
| PART I
PRELIMINARY |
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| 1. | Citation, application and commencement. | ||||||||
| 2. | Interpretation. | ||||||||
| 3. | Exercise of powers, duties and functions of the Central Bank. | ||||||||
| PART II
INVESTIGATION, CONTROL AND ENFORCEMENT |
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| 4. | Powers of the Central Bank to investigate the affairs of any deposit?taker. | ||||||||
| 5. | Powers for the purpose of investigation. | ||||||||
| 6. | Failure to comply in course of investigations. | ||||||||
| 7. | Offences relating to investigations. | ||||||||
| 8. | Order to freeze property, restrict departure from Malaysia, etc. | ||||||||
| 9. | Action by the Central Bank in respect of a deposit?taker. | ||||||||
| 10. | Advice of the Advisory Panel. | ||||||||
| 11. | Appeal against an order under regulation 8 or action of the Central Bank under regulation 9. | ||||||||
| PART III
GENERAL |
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| 12. | General offence and penalty. | ||||||||
| 13. | Costs. | ||||||||
| 14. | Officer of Central Bank deemed to be public servant and authority to administer oaths and affirmations. | ||||||||
| 15. | Modification of laws. | ||||||||
| 16. | Rules. | ||||||||
| Citation, application and commencement. | 1. (1) These Regulations may be cited as the Essential (Protection of Depositors) Regulations 1986. | ||||||||
| (2) These Regulations shall have application throughout Malaysia and shall come into force on the date of their publication in the Gazette. | |||||||||
| Interpretation. | 2. In these Regulations, unless the context otherwise requires? | ||||||||
| Ord. 61/58. | ?Advisory Panel? means the Advisory Panel established under subsection (2) of section 31A of the Central Bank of Malaysia Ordinance 1958; | ||||||||
| Act 102. Act 276. |
?bank? means a bank licensed under the Banking Act 1973 or an Islamic bank licensed under the Islamic Banking Act 1983; | ||||||||
| ?business of deposit taking? means the acceptance of any money on deposit or loan by a person (in this definition referred to as ?the borrower?) from more than ten persons wherein the borrower is under a liability (whether or not such liability is present or future) to repay the money to these persons? | |||||||||
| Act 6. | (a) | where the borrower is not a licensed finance company and (without prejudice to items (b) and (c) of this definition) is not exempted from the provisions of the Finance Companies Act 1969; | |||||||
| (b) | where the borrower is a co?operative society; or | ||||||||
| (c) | where the borrower is a pawnbroker; | ||||||||
| ?Central Bank? means the Central Bank of Malaysia established under the Central Bank of Malaysia Ordinance 1958; | |||||||||
| Act 287. Sabah Ord. 3/58. Swk. Cap. 66. |
?co?operative society? means a co?operative society registered or deemed to be registered under the Co?operative Societies Act 1948, or the Co?operative Societies Ordinance of Sabah, or the Co?operative Societies Ordinance of Sarawak, or under any other written law relating to co?operative societies; | ||||||||
| Act 125. | ?corporation? has the meaning assigned thereto in the Companies Act 1965; | ||||||||
| ?depositor? means a person who deposits with or lends money to any person carrying on the business of deposit taking; | |||||||||
| ?deposit liability? means the liability of a deposit?taker to repay any money accepted by the deposit?taker on deposit or loan from any person; | |||||||||
| ?deposit?taker? means a person who carries on the business of deposit taking; | |||||||||
| ?document? means any paper, card, magnetic storage media or other material or substance on which is printed, typewritten, marked or captured letters, figures, marks, pictorial, or any visible or audible representation; | |||||||||
| ?employee or agent of a person? includes? | |||||||||
| (a) | a director, banker, advocate, auditor, nominee or other person employed or appointed by the person at any time before or after the commencement of these Regulations; and | ||||||||
| (b) | a person who? | ||||||||
| (i) | has in his possession any property belonging to the first?mentioned person; | ||||||||
| (ii) | is indebted to the first?mentioned person; or | ||||||||
| (iii) | has any knowledge or information relating to the business, dealings, affairs or property of the first?mentioned person; | ||||||||
| Act 125. | ?interest in shares? has the meaning assigned thereto in section 6A of the Companies Act 1965; | ||||||||
| ?licensed finance company? means a licensed finance company under the Finance Companies Act 1969; | |||||||||
| ?manager? means? | PU(A) 274/1991. | ||||||||
| (a) | the Central Bank, or a person appointed by the Central Bank, acting under subparagraph (b) of paragraph (1) of regulation 9; or | ||||||||
| (b) | a receiver appointed by the High Court under subparagraph (c) of paragraph (1) of regulation 9; | ||||||||
| ?Minister? means the Minister charged with the responsibility for finance; | |||||||||
| Act 81. | ?pawnbroker? has the meaning assigned thereto in the Pawnbrokers Act 1972; | ||||||||
| ?relative? in relation to a person includes? | |||||||||
| (a) | the spouse of the person; | ||||||||
| (b) | the brother or sister of the person; | ||||||||
| (c) | the brother or sister of the spouse of the person; | ||||||||
| (d) | any lineal ascendant or descendant of the person; | ||||||||
| (e) | any lineal ascendant or descendant of the spouse of the person; | ||||||||
| (f) | the spouse of any person referred to in item (b), (c), (d) or (e); | ||||||||
| (g) | any lineal descendant of a person referred to in item (b) or (c); | ||||||||
| (h) | the brother or sister or the spouse of the brother or sister of any lineal ascendant of the person or his spouse; and | ||||||||
| (i) | any lineal descendant or spouse of a person referred to in item (h); and | ||||||||
| Act 155. | ?travel document? means any passport or other document issued by a proper authority whether inside or outside Malaysia to enable the holder thereof to travel outside of the country of the issuing authority and shall include a visa and a travel document referred to under section 72 of the Immigration Act 1959. | ||||||||
| Exercise of powers, duties and functions of the Central Bank. | 3. The powers, duties and functions of the Central Bank under these Regulations shall be exercisable by the Governor or the Deputy Governor of the Central Bank or by such other employee or officer of the Central Bank, or by such public officer, as may be conferred in writing by the Governor or the Deputy Governor with the exercise of any such powers, duties or functions and any such conferment may be made subject to such conditions or restrictions as may be specified by the Governor or the Deputy Governor. | ||||||||
| PART I
INVESTIGATION, CONTROL AND ENFORCEMENT |
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| Powers of the Central Bank to investigate the affairs of any deposit?taker. | 4. (1) The Central Bank may investigate into the affairs of any person it suspects or has reason to believe is a deposit?taker. | ||||||||
| (2) The power to investigate into the affairs of any person referred to in paragraph (1) shall include the power to investigate into the affairs of? | |||||||||
| (a) | any person who is in whole or in part, or in any manner or to any extent, concerned with the control or the management of the affairs of the first?mentioned person; | ||||||||
| (b) | any person who owns any share or interest in the property of the first?mentioned person; | ||||||||
| (c) | any relative, employee or agent of the person; | ||||||||
| (d) | any relative, employee or agent of any of the persons mentioned in subparagraph (a), (b) or (c); | ||||||||
| (e) | any depositor with the person; or | ||||||||
| (f) | any corporation in which the person or any person referred to in subparagraph (a), (b), (c) or (d) has an interest in shares of that corporation. | ||||||||
| Powers for the purpose of investigation. | 5. (1) For the purpose of any investigation under regulation 4, the Central Bank shall have powers in relation to any person referred to in regulation 4 to? | ||||||||
| (a) | enter and search any office or place of business or residence, and inspect any books or other documents whatsoever, of the person; | ||||||||
| (b) | require the person to produce to an officer of the Central Bank or a public officer any accounts, books or other documents including any travel or other personal documents whatsoever under his custody or control; | ||||||||
| (c) | require the person to be examined by an officer of the Central Bank or a public officer on oath or affirmation, or by notice in writing require the person to appear before an officer of the Central Bank or a public officer for examination on oath or affirmation in relation to the affairs or business of the person; and | ||||||||
| (d) | in the course of investigation? | ||||||||
| (i) | seize, take possession of, and retain for such time as it deems necessary, any object, article, material or thing, or any accounts, books or other documents including any travel or other personal documents whatsoever of or relating to the person; and | ||||||||
| (ii) | search the person, if anything referred to in subsubparagraph (i) is capable of being concealed upon the person, provided always that whenever it is necessary to cause a woman to be searched, the search shall be made by another woman with strict regard to decency. | ||||||||
| (2) A person in respect of whom a search or an examination is being carried out under paragraph (1) shall be legally bound to submit himself to such search and examination and shall, throughout the period of such search and examination, be deemed to be in the lawful custody of the person or persons carrying out such search or examination. | |||||||||
| (3) In conducting any examinations under subparagraph (c) of paragraph (1), the officer conducting the examination may cause the proceedings of the examination to be recorded in writing. | |||||||||
| (4) The record of an examination made pursuant to paragraph (3) shall be read to and signed by the person examined, and where the person examined refuses to sign the record, the officer conducting the examination shall endorse thereon under his hand the fact of such refusal and the reason therefor, if any, stated by the person examined. | |||||||||
| (5) Any findings, investigation reports or other documents relating to an investigation under these Regulations, and a record of examination under paragraph (3), shall, notwithstanding any other written law or rule of law relating to evidence, be admissible in any proceedings under these Regulations or under any other law in any court. | |||||||||
| (6) The Central Bank may? | |||||||||
| (a) | grant permission to any person to have access to anything seized and taken possession of during the course of an investigation; or | ||||||||
| (b) | disclose or make available to any police or other public officer any findings, record of examination, investigation reports, or other documents relating to an investigation under these Regulations. | ||||||||
| (7) A person answering any question by any officer pursuant to the exercise of any powers under this regulation shall be legally bound to answer such question and to state the truth and shall not refuse to answer any question on the ground that it tends to incriminate him, and any answer given by him, whether or not it tends to incriminate him, may be used in any criminal proceedings against him. | |||||||||
| Failure to comply in course of investigations. | 6. If any person? | ||||||||
| (a) | fails to comply with any requirement of the Central Bank; or | ||||||||
| (b) | refuses to answer any question put to him by any officer, | ||||||||
| in the exercise of its or his powers under regulation 5, he shall be guilty of an offence, and the court shall, in addition to imposing any penalty under these Regulations, have the power to make such order against such person as may be necessary to secure such person?s compliance with the requirement referred to in subparagraph (a) or to answer any question referred to in subparagraph (b), and if he fails to comply with such order the court may punish such person in respect of such failure for contempt of the court. | |||||||||
| Offences relating to investigations. | 7. Where any investigation under these Regulations is being carried out, it shall be an offence for any person to? | ||||||||
| (a) | conceal, hide, destroy or alter any object, article, material or thing, or accounts, books or other documents, or any entries therein, of or relating to the affairs of any person referred to in regulation 4; | ||||||||
| (b) | send, attempt to send or conspire with any person to send out of Malaysia anything referred to in subparagraph (a); or | ||||||||
| (c) | sell, dispose of, charge, pledge, transfer, or otherwise deal with, or dissipate, or remove from or send out of Malaysia, any monies, properties or assets belonging to any person referred to in regulation 4 without the prior written approval of the Central Bank. | ||||||||
| Order to freeze property, restrict departure from Malaysia, etc. | 8. (1) If the Central Bank suspects or has reason to believe that any person is a deposit?taker, it may, by an order published in the Gazette, name or describe the deposit?taker or other persons associated with the deposit?taker in the manner specified in paragraph (2) of regulation 4, and require the person so named or described to comply with such provisions as may be contained in the order. | ||||||||
| (2) Without prejudice to the generality of paragraph (1), the order referred to therein may require the person named or described in the order? | |||||||||
| (a) | to disclose to the Central Bank the value, nature and whereabouts of any monies, properties and assets owned beneficially by such person, whether in his own name or in the name of any corporation in which the person has an interest in shares, or in the name of any nominee, relative, employee or agent of such person; | ||||||||
| (b) | (i) | to report to the Central Bank the value, nature and whereabouts of all monies, properties or assets in his possession or custody or under his control; and | |||||||
| (ii) | not to deal in or dispose of any of such monies, properties or assets without the written consent of the Central Bank; and | ||||||||
| (c) | to surrender to the Central Bank all such monies, properties and assets as are described in subparagraphs (a) and (b). | ||||||||
| (3) An order under paragraph (1) may also require all persons generally who are in possession of or have control or custody of any monies, properties or assets of any person named or described in the order to comply with the provisions of this regulation in respect of such monies, properties or assets in the same manner as if they were persons named or described in the order. | |||||||||
| (4) The order may direct that the person named or described in the order shall? | |||||||||
| (a) | be restrained, whether by himself or by his nominees, relatives, employees or agents, from selling, disposing of, charging, pledging, transferring or otherwise dealing with or dissipating his properties or assets; | ||||||||
| (b) | not remove from or send out of Malaysia any of his monies, properties or assets; and | ||||||||
| (c) | not leave or be permitted to leave Malaysia and shall surrender any travel documents to the Director?General of Immigration within one week of the publication of the order. | ||||||||
| Action by the Central Bank in respect of a deposit?taker. | 9. (1) Where the Central Bank is satisfied that any person is a deposit?taker, it may do one or more of the following: | ||||||||
| (a) | require the deposit?taker to forthwith cease all or any transactions or activities relating to its business, and refund all monies paid by any depositor in such manner as the Central Bank may direct; | ||||||||
| (b) | assume control of and carry on the whole or any part of the business of the deposit?taker as the Central Bank deems fit, or appoint any person to do so on the Central Bank?s behalf; | ||||||||
| (c) | apply to the High Court to appoint a receiver to manage the affairs and property of the deposit?taker and for such incidental or ancillary orders or directions in relation to such appointment as may, in the opinion of the Central Bank, be necessary or expedient; | ||||||||
| Act 125. | (d) | in the case of a corporation, present a petition to the High Court for the winding up of the corporation, and the court shall accordingly have the power to make an order for the winding up of the corporation; | PU(A) 274/1991. | ||||||
| Act 287. | (e) | in the case of a West Malaysian co-operative society, require the Registrar-General of Co-operative Societies or, in the case of a Sabah or Sarawak co-operative society, require the Registrar of Co-operative Societies, to make an order for the cancellation of the registration of the co-operative society, and the said Registrar-General or the said Registrar, as the case may be, shall accordingly cancel the registration of such co-operative society, and where there is a manager (not being the Central Bank itself) for such co-operative society, the manager shall for the purpose of the liquidation of the co-operative society and the winding up of its affairs and business be the liquidator of the society, and the following provisions shall apply: | PU(A) 274/1991. | ||||||
| (A) | the co-operative society shall cease to exist as a corporate body from the date of the cancellation of the registration of the co-operative society (hereinafter referred to as the ?date of dissolution?): | ||||||||
| Act 287. | Provided that any privileges conferred on the co-operative society by or under sections 14, 15, 16 and 17 of the Co-operative Societies Act 1948 and the respective Ordinances shall be deemed to be vested in the liquidator; | ||||||||
| (B) | in the case of a West Malaysian co-operative society, sections 42, 43, 44, 45, 47, 48, 49 and 50 of the Co-operative Societies Act 1948; | ||||||||
| (C) | in the case of a Sabah or Sarawak co-operative society, sections 42, 43, 44, 45, 47, 48, 49, 50, 51 and 52 of the respective Ordinance, | ||||||||
| with the following modifications: | |||||||||
| (i) | all references therein to the Registrar-General or Registrar, as the case may be, shall be construed as references to the Central Bank; | ||||||||
| (ii) | all references therein to priority, distribution, or scheme of distribution shall be subject to regulation 9A; | ||||||||
| (iii) | paragraphs (f) and (i) of section 42(1) of the Co-operative Societies Act 1948, and paragraphs (e) and (h) of subsection (1) of section 42 of the respective Ordinance, shall not apply; | ||||||||
| (iv) | paragraph (k) of section 42(1) of the Co-operative Societies Act 1948, and paragraph (j) of subsection (1) of section 42 of the respective Ordinance, shall be substituted with a paragraph (k) or (j), as the case may be, as follows: | ||||||||
| P.U.(A) 237/86. | ?exercise any of the powers, or do any act, which a manager may exercise or do under subparagraphs (a), (b), (c) and (d) of paragraph (1) of regulation 9B of the Essential (Protection of Depositors) Regulations 1986;?; | ||||||||
| Sabah Ord. 3/58. | (v) | section 42(4) of the Co-operative Societies Act 1948, and subsection (3) of section 42 of the Co-operative Societies Ordinance 1958 of Sabah, shall be read as if the words ?or at such lesser intervals as the Central Bank may direct,? were inserted after the word ?months,? in those subsections; | |||||||
| (vi) | the words ?order made by a liquidator? in sections 43 (a) and 44 respectively, of the Co-operative Societies Act 1948, and in paragraph (a) of section 43, and in section 44, respectively, of the respective Ordinance, shall be substituted by the words ?decision given by a liquidator?; | ||||||||
| (vii) | the word ?Minister? in sections 48 and 50 of the Co-operative Societies Act 1948, and in sections 49 and 52 of the respective Ordinance, shall be substituted by the words ?Minister of Finance?; | ||||||||
| (viii) | the words ?two months from the date of the award and in such manner as may be prescribed? in section 49(3) of the Co-operative Societies Act 1948 shall be substituted by the words ?fourteen days from the date of the award?; and | ||||||||
| (ix) | the words ?such period and in such manner as may be prescribed? in subsection (3) of section 51 of the respective Ordinance shall be substituted by the words ?fourteen days from the date of the award; | ||||||||
| Act 81. | (f) | in the case of a pawnbroker, direct any licensing officer appointed under subsection (2) of section 10 of the Pawnbrokers Act 1972 to cancel the licence granted under the Act to the pawnbroker, and such licensing officer shall accordingly cancel the licence and shall have the power to do so on being so directed. | PU(A) 274/1991. | ||||||
| Act 215. Act 287. Sabah Ord. 3/58. Swk.Cap.66. Act 81. Act 360. |
(1A). The provisions of subparagraphs (d), (e) and (f) of paragraph (1) shall have full force and effect in every respect and for all purposes notwithstanding anything inconsistent therewith or contrary thereto in the Companies Act 1965, the Co-operative Societies Act 1948, the Co-operative Societies Ordinance 1958 of Sabah, the Co-operative Societies Ordinance of Sarawak, the Pawnbrokers Act 1972, the Bankruptcy Act 1967, or any subsidiary legislation under any such Act or Ordinance. | PU(A) 274/1991. | |||||||
| Act 287. | (1B). In this regulation? | PU(A) 274/1991. | |||||||
| (a) | ?West Malaysian co-operative society? means a co-operative society to which the Co-operative Societies Act 1948 applies; | ||||||||
| (b) | ?Sabah or Sarawak co-operative society? means a co-operative society to which the respective Ordinance applies; and | ||||||||
| Sabah Ord. 3/58. Swk.Cap.66. |
(c) | ?respective Ordinance? means the Co-operative Societies Ordinance 1958 of Sabah or the Co-operative Societies Ordinance of Sarawak, as the case may be, which is applicable to a Sabah or Sarawak co-operative society. | |||||||
| (2) The powers of the Central Bank under paragraph (1) shall not be exercised in relation to a co?operative society unless the Central Bank is satisfied that the co?operative society is unable, or is likely to become unable, to meet its deposit liability to any extent. | |||||||||
| (3) Pursuant to subparagraph (b) of paragraph (1)? | |||||||||
| (a) | the Central Bank or any person appointed for the purpose by the Central Bank shall assume control and carry on the whole or any part of the business of the deposit?taker until such time as? | ||||||||
| (i) | the deposit liabilities of the deposit?taker have been repaid or the Central Bank is satisfied that suitable provision has been made for their repayment; or | ||||||||
| (ii) | in the opinion of the Central Bank it is no longer necessary or expedient to do so; and | ||||||||
| (b) | the deposit?taker or any person associated with the deposit?taker in the manner specified in paragraph (2) of regulation 4 shall? | ||||||||
| (i) | submit the business to the control of the Central Bank or the person appointed for the purpose by the Central Bank; and | ||||||||
| (ii) | provide the Central Bank or the person appointed for the purpose by the Central Bank all such facilities or assistance as may be reasonably required to carry on the whole or any part of the business. | ||||||||
| Special provisions relating to the priority of payment of unsecured debts of a deposit-taker. Act 125. Act 287. Sabah Ord. 3/58. Swk.Cap.66. Act 81. Act 360. |
9A. (1) Notwithstanding anything contained in the Companies Act 1965, the Co-operative Societies Act 1948, the Co-operative Societies Ordinance 1958 of Sabah, the Co-operative Societies Ordinance of Sarawak, the Pawnbrokers Act 1972, the Bankruptcy Act 1967, or in any other written law, relating to the priority of payment of debts in a winding up, liquidation, or bankruptcy of a deposit-taker, where? | ||||||||
| (a) | any deposit-taker is being wound up in pursuance of subparagraph (d) of paragraph (1) of regulation 9; or | ||||||||
| (b) | any liquidation proceedings are being taken against any deposit-taker in pursuance of subparagraph (e) of paragraph (1) of regulation 9, | ||||||||
| Act 360. | the priority of payment of unsecured debts of such deposit-taker in such winding up, or liquidation, as the case may be, shall, without prejudice to the rights of secured creditors as defined in section 2 of the Bankruptcy Act 1967, rank in the following order: | ||||||||
| (A) | firstly? | ||||||||
| (i) | all proper costs, charges and expenses, including the remuneration, as provided under regulation 13, of the then manager, or of any previous manager, of the deposit-taker; | ||||||||
| Act 287. Sabah Ord. 3/58. Swk.Cap.66. |
(ii) | in the case of a deposit-taker which is a co-operative society, the remuneration of the liquidator as provided under section 43 (g) of the Co-operative Societies Act 1948, or the Co- operative Societies Ordinance 1958 of Sabah, or the Co-operative Societies Ordinance of Sarawak, as may be applicable; and | |||||||
| Act 125. | (iii) | in the case of a deposit-taker which is being wound up in pursuance of subparagraph (d) of paragraph (1) of regulation 9, the costs and expenses of the winding up, including the taxed costs of the Central Bank in its capacity as petitioner payable under section 220 of the Companies Act 1965, the remuneration of the liquidator and the costs of any audit carried out pursuant to section 281 of the Companies Act 1965; | |||||||
| (B) | secondly, all monies (including any interest or other payments that may be due on such monies) paid by any person, including? | ||||||||
| (i) | the Government of Malaysia; | ||||||||
| (ii) | the Central Bank; or | ||||||||
| (iii) | any person acting on the request, direction or instruction, of the Government of Malaysia or the Central Bank, | ||||||||
| to a deposit-taker, or any other person, regardless whether such payment was made by way of a deposit, a loan, or in any other form or manner whatsoever, where in respect of such monies a certificate is issued by the Minister under his hand expressly for the purpose of the determination of priority of payment of unsecured debts of the deposit-taker under this regulation, certifying that such monies were paid for the purpose of enabling, directly or indirectly, the deposit- taker?s deposit liabilities or any other liabilities to be met; | |||||||||
| (C) | thirdly, all deposit liabilities of the deposit-taker, other than deposit liabilities which already rank second in priority under subparagraph (B); | ||||||||
| (D) | fourthly, all wages or salary (whether or not earned wholly or in part by way of commission) including any amount payable by way of allowance or reimbursement under any contract of employment or award or agreement regulating conditions of employment of any employee of the deposit-taker, but not including any termination or retirement benefits payable on cessation of employment for any reason; | ||||||||
| (E) | fifthly, all amounts due in respect of worker?s compensation under any written law relating to worker?s compensation in relation to physical injury to a worker employed by the deposit-taker; | ||||||||
| (F) | sixthly, all monies payable to any person, whether in respect of remuneration or compensation, in relation to the death of any employee of the deposit-taker; | ||||||||
| (G) | seventhly, all payments due to any public authority under any written law by way of tax or otherwise; and | ||||||||
| (H) | eighthly, all other debts of the deposit-taker due to any unsecured creditor. | ||||||||
| (2) Where there have been mutual credits, mutual debts, or other mutual dealings between a deposit-taker to which paragraph (1) applies and any other person proving or claiming to prove a debt due from such deposit-taker, an account shall be taken of what is due from one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set-off against any sum due from the other party, and the balance of the account and no more shall be claimed or paid form either side respectively. | |||||||||
| (3) The debts in each class specified in paragraph (1) shall rank in the order specified therein, but as between debts of the same class shall rank equally between themselves, and shall be paid in full, unless the property of the deposit-taker is insufficient to meet them, in which case they shall abate in equal proportions between themselves. | |||||||||
| (4) The right of a depositor to recover his deposit together with all rights and interests attaching thereto shall not be prejudicially affected by anything done by the deposit-taker which is in contravention of, or contrary to, or inconsistent with, any written law or anything contained in the constitution of the deposit-taker. | |||||||||
| Powers of manager. | 9B. (1) Subject to these Regulations, a manager may take all action as may be necessary in relation to the business, affairs and property of the deposit-taker, or for the purpose of protecting the interests of the depositors, creditors or customers, or persons having any lawful dealings or transactions with the deposit-taker, and, without prejudice to the generality of such power, the manager may, in particular, do all or any of the following: | ||||||||
| (a) | sell, convey, transfer, assign, exchange, surrender and yield up, lease, mortgage, charge, recover, re-assign, or otherwise howsoever deal with, all or any part of the properties of the deposit-taker, and deal with the proceeds thereof in any manner for the benefit, or in the interests, of the deposit-taker or the depositors, creditors, customers, or persons having any lawful dealings or transactions with the deposit-taker; | ||||||||
| (b) | enter into any arrangement, agreement, or scheme, with any person whereby all, or any part of the properties of the deposit-taker are sold, conveyed, transferred, assigned, exchanged, surrendered and yielded up, leased, mortgaged, charged, re-assigned, or otherwise howsoever disposed of, to any person in consideration of such person agreeing to meet all, or a specified part, of the liabilities of the deposit-taker, including, in particular, the deposit liabilities of the deposit-taker; | ||||||||
| (c) | enter into any arrangement, agreement, composition, compromise, or scheme, with any depositors, creditors, customers, or persons having any lawful dealings or transactions with the deposit- taker, whereby any right of any such person, or any liability of the deposit-taker to any such person, is made subject to the arrangement, agreement, composition, compromise or scheme entered into by the manager; | ||||||||
| (d) | employ any person as an employee of the deposit-taker, or terminate the employment of any employee of the deposit-taker, in accordance with the terms of the contract of service, or take such action including disciplinary action and punishment, as may be deemed necessary, appropriate or expedient in respect of such employment, termination or disciplinary action; | ||||||||
| (e) | give his consent to the assignment or transfer by a depositor to any person of any deposit or any part thereof, or of any right, interest, or title in any deposit or in any part thereof, held by the depositor with the deposit-taker, and where such consent has been given the assignment or transfer shall be valid notwithstanding? | ||||||||
| (i) | that the deposit is by its terms not assignable or transferable; | ||||||||
| (ii) | that the assignment is inconsistent with the terms of the deposit; or | ||||||||
| (iii) | any other term or circumstance whatsoever of, or relating to, the deposit; or | ||||||||
| (f) | apply the assets of the deposit-taker which are at any time in his possession, or under his custody or control, during the course of carrying on the business of the deposit-taker or the management of the affairs and property of the deposit- taker, subject to regulation 13, to meet the deposit liabilities of the deposit-taker in preference to all other unsecured liabilities of the deposit-taker. | ||||||||
| (2) Where there have been mutual credits, mutual debts or other mutual dealings between a deposit-taker in respect of which there is a manager and any other person claiming a debt from the deposit- taker, the manager shall take an account of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set-off against any sum due from the other party, and the balance of the account and no more shall be claimed or paid on either side respectively. | |||||||||
| (3) Where prior to the publication of this regulation in the Gazette, a manager, being a receiver as is referred to in subparagraph (b) of the definition of ?manager? in regulation 2, has been conferred with any powers, functions or duties by the High Court under any order made by the High Court on the application of the Central Bank, the provisions of such order shall be in addition to the powers conferred on such manager under subparagraph (a), (b), (c), (d) or (e) of paragraph (1). | |||||||||
| (4) The Central Bank may generally, or in any particular case, at any time issue such directions in writing as it deems fit to a manager (not being the Central Bank itself) with regard to the exercise by the manager of the powers conferred upon it under paragraph (1), and the manager shall comply with and act in accordance with such directions, and where the Central Bank is itself the manager, it may do all such things which it has the power to direct as aforesaid another manager to do. | |||||||||
| Ord. 61/58. | (5) Where the Central Bank has taken any action in relation to a deposit-taker under any provision of these Regulations, section 31B of the Central Bank of Malaysia Ordinance 1958 may also be applied in relation to such deposit- taker. | ||||||||
| (6) Anything done by or on behalf of the Central Bank, or by a manager, in pursuance or in purported pursuance of? | |||||||||
| (a) | this regulation; | ||||||||
| (b) | section 31B of the Central Bank of Malaysia Ordinance 1958; | ||||||||
| (c) | any order made under subsection (1) of the said section 31B; or | ||||||||
| (d) | any order of the High Court made on an application by the Central Bank, | ||||||||
| shall be lawful and valid, notwithstanding that anything so done, or anything previously done by or on behalf of the deposit-taker in relation thereto, was contrary to or inconsistent with any law applicable thereto, including, in particular, the provisions of? | |||||||||
| Act 287. Sabah Ord. 3/58. Swk.Cap.66. |
(i) | the Co-operative Societies Act 1948 or the Co-operative Societies Ordinance 1958 of Sabah or the Co-operative Societies Ordinance of Sarawak; | |||||||
| Act 136. | (ii) | the Contracts Act 1950; | |||||||
| Act 67. | (iii) | the Civil Law Act 1956; | |||||||
| Act 125. | (iv) | the Companies Act 1965; | |||||||
| Ord. 61/58. | (v) | any provision, other than the said section 31B, of the Central Bank of Malaysia Ordinance 1958; or | |||||||
| (vi) | any procedural provision of any written law.?. | ||||||||
| (2) The new regulation 9B introduced into the principal Regulations by paragraph (1) shall be deemed to have come into force on the date of the commencement of the principal Regulations, save that in its application to section 31B of the Central Bank of Malaysia Ordinance 1958, it shall be deemed to have come into force as from the date of commencement of the said section 31B, that is, the 1st January 1988. | |||||||||
| ?Application to High Court for vesting order. | 9C
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