PENGURUSAN DANAHARTA NASIONAL BERHAD ACT 1998
(1) This Act may be cited as the Pengurusan Danaharta Nasional Berhad Act 1998 .
(2) This Act shall apply throughout Malaysia.
(3) This Act comes into operation on such date as the Minister may, by notification in the Gazette, appoint; and the Minister may appoint different dates for the coming into force of different provisions of this Act in different parts of Malaysia.
In this Act, unless the context otherwise requires-
"acquiree" means any person to whom the Corporation disposes an asset under section 19;
"asset" includes any credit facility, property and business or enterprise of any kind;
"authorised depository agent" has the meaning assigned to it in the Securities Industry (Central Depositories) Act 1991;
[ Act 453]
"Board" means the board of directors of the Corporation;
"books" includes a register, a document, an account or accounting records, however compiled, recorded or stored, and any other record of information;
"business" means any activity carried on for the purpose of gai
The Corporation incorporated under the Companies Act 1965 under the name "Pengurusan Danaharta Nasional Berhad" shall have the main objective of carrying on business as an asset management company and acquiring, managing, financing and disposing of assets and liabilities.
(1) Without prejudice to its powers as prescribed in its Memorandum and Articles of Association, the Corporation shall have the power to-
(a) carry on business as an asset management company and to acquire the whole or any part of any asset or liability of whatever form of any person, and to manage, finance and dispose of such asset or liability; and
(b) carry out, manage or enter into any activity in relation to such asset or liability.
(2) The powers conferred on the Corporation under subsection (1) shall be in addition to and not in derogation of any of the rights, powers, liberties, privileges and benefits conferred on the Corporation by this Act or any other law.
(3) In addition to the powers vested in the Corporation by its Memorandum and Articles of Association and this Act, the Corporation may exercise such other powers as may be expedient or reasonably necessary for o
(1) The board of directors of the Corporation, which shall be responsible for the policy and general administration of the affairs and business of the Corporation, shall comprise the following members who, notwithstandingthe provisions of section 128 of the Companies Act 1965, shall be appointed by the Minister:
[Act 125]
(a) a non-executive Chairman;
(b) a Managing Director;
(c) two Federal Government officials;
(d) three members from the private sector; and
(e) two members from the international community.
(2) For the purposes of subsection (1), the Minister may appoint such persons as he thinks fit and proper to act and assist the Corporation in achieving its objectives.
(3) The Managing Director shall be the chief executive officer of the Corporation and shall be entrusted with the day-
(1) Any matter not provided for in this Act shall be determined in accordance with and regulated by the Memorandum and Articles of Association of the Corporation.
(2) Where there is any conflict or inconsistency between the provisions of this Act and the provisions of the Memorandum and Articles of Association of the Corporation, the provisions of this Act shall prevail.
(1) A member of the Board or any committee formed by the Board having directly or indirectly any interest in relation to any matter under discussion by the Board or the committee shall disclose to the Board or the committee the existence of his interest and the nature of that interest.
(2) A disclosure under subsection (1) shall be recorded in the minutes of the Board or the committee.
(3) Upon the disclosure under subsection (1) the member-
(a) shall not take part nor be present in any deliberation or decision of the Board or the committee; and
(b) shall be disregarded for the purpose of constituting a quorum of the Board or the committee,
relating to the matter.
(4) A member of the Board or the committee who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment
(1) The Corporation shall cause to be kept accountsin accordance with the Companies Act 1965 [Act 125 ].
(2) The Corporation shall cause its statement of accounts to be audited by such auditors as it may appoint.
(3) The Corporation shall as soon as practicable send a copy of the audited statement of accounts together with a copy of the auditor's report thereon to the Minister.
(4) The provisions of the Statutory Bodies (Accounts and Annual Reports) Act 1980 shall not apply to the Corporation.
[Act 240]
(1) The share capital of the Corporation shall initially be acquired and held by the Minister of Finance on a date appointed by the Minister.
(2) The Minister of Finance may exercise all rights and powers as the holder of shares in the capital of the Corporation as prescribed under its Memorandum and Articles of Association.
(3) Notwithstanding subsection 147(6) of the Companies Act 1965, where the Minister of Finance is beneficially entitled to the whole of the issued shares of the Corporation, a minute signed by a duly authorised representative of the Minister of Finance stating that any act, matter or thing, or any ordinary or special resolution required by the Companies Act 1965 or by the Memorandum or Articles of Association of the Corporation to be made, performed or passed by or at an ordinary general meeting or an extraordinary general meeting of the Corporation has been made, performed, or passed, that act, matter, thing, or re
Section 14 of the Financial Procedure Act 1957 shall apply to the Corporation.
[Act 61]
If any sum is paid out of the funds of the Government under a guarantee issued under this Part, the Corporation shall repay that sum to the Government in such manner and at such time or by such instalments as the Minister may direct.
Without prejudice to section 11, the terms and conditions which may be agreed to by the Government may include, in respect of any guarantee given or agreement concluded under this Part or under any bond, debenture, promissory note or other instrument issued pursuant to any such guarantee or agreement, provision for submission by the Corporation or the Government or both of them to the jurisdiction of the courts of the country in which the above-mentioned facility is provided.
(1) The Corporation may with the consent of the seller-
(a) elect to acquire any asset pursuant to the statutory vesting provisions set forth in this Part, in which case all of the rights and obligations of the Corporation set forth in this Part shall apply and such election shall be conclusively made and evidenced by the Corporation's issuance of a vesting certificate pursuant to subsection 14(7);
(b) acquire an asset without the benefit of the provisions of this Part, in which case no vesting certificate shall be issued by the Corporation and the Corporation shall acquire and hold such asset pursuant to all provisions of applicable law other than those set forth in this Part.
(2) The seller shall disclose to the Corporation in writing prior to the vesting date all specific claims within his knowledge relating to the asset.
(3) Where a subsidiary of the Corporation prescribed
(1) The Corporation may acquire any asset, whether such asset is held by the seller alone or jointly with any other person and upon such acquisition such asset shall, on. and from the vesting date, vest in the Corporation either alone or jointly with that other person, as the case may be.
(2) A vesting under subsection (1) shall have effect according to the provisions of this Part and, notwithstanding the provisions of the Civil Law Act 1956 or any otherlaw, shall be binding on any person thereby affected in the manner provided in this Part.
[Act 67]
(3) The Corporation shall, on and from the vesting date for an asset, acquire all of the seller's present and future rights, title and interest in and disclosed obligations with respect to such asset, free of any encumbrance or claim save for any registered interest prevailing as at the vesting date and disclosed claims.
(4) Without prejudice to subsec
(1) The Corporation may issue a new vesting certificate to replace any vesting certificate it has previously issued in order to rectify any omission or error in the vesting certificate.
(2) Any replacement vesting certificate issued under subsection (1) executed under the seal of the Corporation stating that an asset has been vested in the Corporation shall be conclusive evidence of such vesting as of the vesting date specified in the replacement vesting certificate.
(3) If any law stipulates a time period within which a transfer of any of the assets stated to be the subject of a replacement vesting certificate issued under subsection (1) shall be registered or filed, that period shall commence from the date the replacement vesting certificate is issued.
(4) Any act done by the Corporation, seller, Special Administrator or any other person in reliance of a vesting certificate previously issued shall not be affected by any omissi
(1) A person who is precluded from making a claim against the Corporation or is precluded from raising a defence against the Corporation under section 14, shall be entitled to seek compensation against the seller in respect of such claim.
(2) Where the Court is satisfied that the person referred to in subsection (1) has a claim against the seller including any prior equitable interest in the asset which that person could have raised or claimed but is precluded by section 14, that person shall be entitled to such compensation from the seller in respect of such claim as the Court considers fair and reasonable.
(1) Notwithstanding the provisions of the National Land Code [ Act 56/65] , the Land Ordinance of Sabah, the Land Code of Sarawak or any other law, any caveat or prohibitoryorder which was registered, endorsed or entered prior, on or after to the vesting date shall not prevent a transfer of any interest in land of the seller to the Corporation.
[Am. Act A1087]
(2) Where a vesting certificate vests in the Corporation any interest in land-
(a) in Peninsular Malaysia, on receipt of-
(i) payment of the prescribed fee; and
(ii) the applicable form-
(A) with the vesting certificate attached to it; and
(B) showing the identity of the person and particulars of the land affected by the vesting,
the Registrar under the National Land Code [Act 56/65] shall without the need for any furthe
17 PART V ACQUISITION AND DISPOSITION BY THE CORPORATION-17. Other Registrars to give effect to vesting certificate.
(1) Notwithstanding the provisions of any other law, every Registrar of the High Courts, the Registrar of Companies, the Registrar General of Ships, a central depository, an authorised depository agent, and any person maintaining a register or record of ownership, interest or security, as the case may be, shall, on receipt of-
(a) payment of the prescribed fee; and
(b) the applicable form-
(i) with the vesting certificate attached to it;and
(ii) showing the identity of the person or asset affected by the vesting,
without the need for any further application or filing of any further documents, do all things and make all entries in any register or record kept by that person as may be necessary to give effect to the vesting of the asset to which the vesting certificate relates.
(2) For the purpose of this section, subsection 11 2A( 1) of
18 PART V ACQUISITION AND DISPOSITION BY THE CORPORATION-18. Vesting of asset outside Malaysia.
A vesting certificate issued under section 14 may relate to any asset of the seller outside Malaysia and, if it so relates, effect may be given to it either in accordance with any reciprocal arrangements relating to enforcement of judgments that may exist between Malaysia and the country, territory or place outside Malaysia where such asset is located, or where there are no such arrangements, in accordance with the law applicable in such country, territory or place.
19 PART V ACQUISITION AND DISPOSITION BY THE CORPORATION-19. Disposition by the Corporation.
(1) The Corporation may, in accordance with the provisions of this section, dispose of any of the Corporation's assets whether vested or not in the Corporation and any property over which the Corporation has a security whether as a chargee, mortgagee, assignee, lien-holder or otherwise.
[Subs. Act A1087]
(2) Subject to the approval of the relevant regulatory body and State Authority having jurisdiction over the disposition of an asset by the Corporation, such disposition to any acquiree shall have the effect of an acquisition of an asset by the Corporation as if that acquiree were the Corporation under section 14 and the provisions of sections 15 to 18 shall apply to that acquiree as they apply to the Corporation except that-
(a) a reference to the "seller" shall be construed as a reference to the Corporation;
(b) a reference to the "Corporation" shall be construed as
19A PART V ACQUISITION AND DISPOSITION BY THE CORPORATION-19A. Replacement transfer certificate.
(1) The Corporation may issue a new transfer certificate to replace any transfer certificate it has previously issued in order to rectify any omission or error in the transfer certificate.
(2) Any replacement transfer certificate issued under subsection (1) executed under the seal of the Corporation stating that an asset has been transferred to the acquiree shall be conclusive evidence of such transfer as of the date of disposition specified in the replacement transfer certificate.
(3) If any law stipulates a time period within which a transfer of any of the assets stated to be the subject of a replacement transfer certificate issued under subsection (1) shall be registered or filed, that period shall commence from the date the replacement transfer certificate is issued.
(4) Any act done by the Corporation, seller, Special Administrator or any other person in reliance of a transfer certificate previously issued shall not be affe
20 PART V ACQUISITION AND DISPOSITION BY THE CORPORATION-20. Permitted disclosure.
(1) Any disclosure by a seller for purposes of an evaluation of, or relating to, a proposed acquisition by the Corporation and any disclosure by the Corporation for any purpose shall not place the seller, the Corporation or any other person in breach of the provisions of section 97 of the Banking and Financial Institutions Act 1989 [Act 372] or any other law or agreement prohibiting, restricting or regulating the disclosure of information.
[Am. Act A1087]
(2) Where a seller is a person licensed under the Banking and Financial Institutions Act 1989, such seller shall be deemed to be permitted to disclose information relating to its affairs or the affairs or the account of its customer to the Corporation.
(3) Any information disclosed by a seller or the Corporation under subsection (1) shall not be treated as information made lawfully available to the public for the purposes of subsection 97(2) of t
21 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-21. Interpretation in relation to Part VI.
(1) In this Part, unless the context otherwise requires-
"affected person" means-
(a) any company owing a duty or liability under a credit facility to the Corporation or any subsidiary of the Corporation, whether present, future, vested or contingent;
(b) any subsidiary of the company referred to in paragraph (a) ;
(c) any company which has provided security for the performance of or discharge of a duty or liability owed by any person to the Corporation or any subsidiary of the Corporation, whether present, future, vested or contingent; or
(d) any company where at least two per cent of its share capital has been charged, pledged or mortgaged by any person to secure the performance of or discharge of a duty or liability owed by any person to the Corporation or any subsidiary of the Corporation, whether present, future, vested or contingent;
22 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-22. Establishment and functions of the Oversight Committee.
(1) There is hereby established a committee by the name of the "Oversight Committee" whose functions shall be-
(a) to approve the appointment of a Special Administrator under this Act;
[Am. Act A1087]
(b) to approve the appointment of an Independent Advisor in the manner set out under section 26;
(c) to approve the recommendations made by the Corporation for the extension or termination of any moratorium in effect pursuant to section 41; and
[Am. Act A1087]
(d) to approve the recommendation of the Corporation for the termination of the appointment of a Special Administrator appointed under this Act or for the termination of the administration of an affected person.
[Am. Act A1087]
(2) The Oversight Committee shall consist of the following members who shall be
23 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-23. Application by affected person for appointment of Special Administrator.
Subject to section 25, the board of directors or the majority of the members of an affected person may apply to the Corporation and the Corporation may recommend to the Oversight Committee for the appointment of a Special Administrator of the affected person. ".
[Subs. Act 1087]
24 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-24. Recommendation by Corporation for appointment of Special Administrator.
Subject to section 25, the Corporation may, on its own motion, recommend to the Oversight Committee for the appointment of a Special Administrator of any affected person.
[Subs. Act A1087]
25 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-25. Criteria for appointment of Special Administrator.
The Corporation may recommend the appointment of a Special Administrator under section 23 or 24 if the Corporation is satisfied that it would serve public interest to do so or if the Corporation is satisfied that-
(a) the primary affected person-
(i) is unable or likely to be unable to pay its debts; or
(ii) is unable or likely to be unable to fulfil its obligations to its creditors;
(b) the survival of the primary affected person and the whole or any part of its assets as a going concern may be achieved;
(c) a more advantageous realisation of the primary affected person's assets may be achieved than on a winding up; or
(d) the appointment may achieve a more advantageous realisation or a more exped
25A PART VI MANAGEMENT OF ASSETS AND LIABILITIES-25A. Appointment of Special Administrator.
(1) For the purposes of sections 23 and 24, the Corporation may, with the approval of the Oversight Committee, appoint the Special Administrator of the affected person.
(2) The Corporation may at any time after the appointment of the Special Administrator under subsection (1) , with the approval of the Oversight Committee, appoint an additional Special Administrator and may, at any time, appoint a new Special Administrator to replace any existing Special Administrator.
(3) Any decision of the Corporation under this section and sections 23, 24 and 25 shall be final and binding and shall not be reviewed, quashed, appealed against or set aside by any court.
[Ins. Act A1087]
26 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-26. Appointment of Independent Advisor.
(1) Where a Special Administrator is or is to be appointed under section 23 or 24, of the Oversight Committee on the recommendation of the Corporation may approve the appointment of an Independent Advisor.
(2) The Corporation may, with the approval of the Oversight Committee, appoint the Independent Advisor.
[Ins. Act A1087]
27 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-27. Circumstances where Special Administrator cannot be appointed.
A Special Administrator shall not be appointed-
(a) in respect of an affected person if the affected person has been wound up by the court and the winding up order is still subsisting;
(b) unless the written approval of the relevant regulatory body has first been obtained, in respect of an affected person that is-
(i) licensed under the Insurance Act 1996 [Act 553] ;
(ii) licensed under the Banking and Financial Institutions Act 1989;
(iii) a dealer, fund manager or investment adviser as defined in the Securities Industry Act 1983;
(iv) a futures broker, futures fund manager or futures trading adviser as defined in the Futures Industry Act 1993;
(v) a stock exchange as defined in the Secu
28 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-28. Duration of administration.
(1) Subject to subsection (2), the administration of the affected person by the Special Administrator appointed under section 23 or 24 shall commence from the date of appointment of the Special Administrator and shall continue until it is terminated by the Corporation with the approval of the Oversight Committee.
[Am. Act A1087]
(2) The Special Administrator shall be released from his appointment upon the approval of the termination of his appointment by the Oversight Committee on the recommendation of the Corporation.
(3) Where the Special Administrator is released from his appointment under this section, he shall, with effect from such release, be discharged from all duties and liabilities in respect of his administration or otherwise in relation to his conduct as a Special Administrator.
(4) Nothing in
29 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-29. Notification of appointment of Special Administrator.
(1) Where a Special Administrator has been appointed under section 23 or 24, the Special Administrator shall-
(a) within two days after such appointment give written notice thereof to the affected person;
(b) within seven days after such appointment lodge a notice of the Special Administrator's appointment with the Registrar of Companies in the form prescribed under this Act; and
(c) within seven days after such appointment cause a notice of the Special Administrator's appointment to be published in at least two national daily newspapers, one of which shall be in the national language.
(2) Every invoice, order for goods or services, business letter, cheque, credit note or negotiable instrument or bill of lading which, after the appointment of a Special Administrator in relation to the affected person, is issued by or on behalf of the affected person or the Special Adm
29A PART VI MANAGEMENT OF ASSETS AND LIABILITIES-29A. Effect of appointment of Special Administrator.
The appointment of a Special Administrator under section 23 or 24 shall not-
(a) be regarded as placing the Special Administrator, the affected person or any other person in breach of or in default under any contract, or in breach of confidence;
(b) be regarded as giving rise to a right for any person to-
(i) terminate, cancel or modify an agreement;
(ii) enforce or accelerate the performance of an obligation; or
(iii) require the performance of an obligation not otherwise arising for performance;
(c) be regarded as placing the Special Administrator, the affected person or any other person in breach of any law or agreement prohibiting, restricting or regulating the assignment, sale, disposition or transfer
30 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-30. General powers of Special Administrator.
The Special Administrator shall have the powers specified in the Second Schedule.
31 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-31. General duties of Special Administrator.
(1) Without prejudice to sections 36, 38 and 39, the Special Administrator shall, on his appointment, take into his custody or under his control all the asset to which the affected person is or appears to be entitled.
(2) The Special Administrator shall manage the asset and affairs of the affected person-
(a) at any time prior to the approval of the proposal by the secured creditors of the affected person under section 46, in accordance with any directions given by the Corporation; and
(b) at any time after the approval of the proposal by the secured creditors of the affected person under section 46, in accordance with that proposal as it may be modified from time to time in accordance with section 48.
(3) Any Special Administrator who contravenes this section commits an offence and shall on conviction be liable to a fine not exceeding two hundred and fifty thousand ringgit or
32 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-32. Special Administrator as affected person's agent.
The Special Administrator shall, in the administration of the affected person, be deemed to be acting as the agent of the affected person.
33 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-33. Officers of affected person to perform or exercise function with written approval.
(1) No person, including the board of directors of the affected person, other than the Special Administrator shall perform or exercise or purport to perform or exercise a function as an officer of the affected person, except with the prior written approval of the Special Administrator.
(2) For the purpose of subsection (1) the Special Administrator shall be entitled to exercise all the functions of the board of directors of the affected person.
(3) In this section-
(a) an "officer" in relation to the affected person includes a receiver, receiver and manager, provisional liquidator and director; and
(b) an employee of the affected person shall not be construed as an officer solely by virtue of him being an employee of the affected person.
(4) Any person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding two hundre
34 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-34. Dealings with affected person's assets.
(1) If an affected person purports to enter into, or any person purports to enter into on behalf of the affected person, a transaction or dealing with any asset of the affected person, that transaction or dealing shall be void unless-
(a) it is a transaction or dealing entered into by the Special Administrator; or
(b) the prior written consent of the Special Administrator was obtained for the transaction or dealing.
(2) Any person who purports to enter into a transaction or dealing in contravention of subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both.
35 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-35. Compensation.
(1) Where a Court finds a person guilty of an offence under section 34 and the Court is satisfied that the affected person or another person has suffered loss or damage thereby, the Court may order the person guilty of the offence to pay compensation to the person who has suffered loss or damage.
(2) Notwithstanding subsection (1) the Special Administrator may commence civil proceedings against any person to recover the asset of the affected person or compensation in lieu thereof.
36 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-36. Obligations of officer of affected person.
(1) An officer or employee of the affected person shall within seven days after the appointment of the Special Administrator-
(a) deliver to the Special Administrator all books of the affected person in the possession of the officer; and
(b) if the officer or employee knows the location of other books relating to the affected person, inform the Special Administrator of the location of those books.
[Am. Act A1087]
(2) An officer or employee of an affected person shall-
(a) attend to the Special Administrator at such times; and
(b) give the Special Administrator such information concerning the affected person's assets, affairs and financial circumstances, as the Special Administrator may reasonably require.
[Am. Act A1087]
(3) In this section, "officer" in r
37 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-37. Investigation of affairs.
(1) The Special Administrator may require any of the persons specified in subsection (2), within twenty-one days thereof or such extended time as the Special Administrator may grant, to verify and submit to the Special Administrator a statement as to the affairs of the affected person in a form determined by the Special Administrator containing-
[Am. Act A1087]
(a) the particulars of the affected person's assets and liabilities;
(b) the name and addresses of the creditors of the affected person;
(c) the securities held by the creditors of the affected person referred to in paragraph (1 ) (b) ;
(d) the dates when the securities referred to in paragraph (1) (c) were given;
[Am. Act A1087]
(da) a statutory declaration made pursuant to the provisions of the Statutory Declarations
38 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-38. Special Administrator's rights to the books of the affected person.
(1) No person is entitled, as against the Special Administrator-
(a) to retain possession of the books of the affected person; or
(b) to claim or enforce a lien on the books of the affected person.
(2) The Special Administrator may give notice to a person and such person shall deliver to the Special Administrator the books so specified in the notice that are in his possession.
(3) Subsections (1) and (2) shall not apply in relation to any books-
(a) to which a secured creditor of the affected person is entitled to possession otherwise than because of a lien; or
(b) of the affected person impounded by any regulatory body,
but the Special Administrator shall be entitled to inspect and make copies of such books.
(4) Any person who contravenes subsection (1) or (2) commits an offence and shall on convicti
39 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-39. Special Administrator's rights to assets of the affected person.
(1) The Special Administrator may require any person who has in his possession or control assets or books to which the affected person appears to be entitled to deliver, convey, surrender or transfer the assets or books to the Special Administrator forthwith or within such period as the Special Administrator may direct.
(2) Where the Special Administrator seizes any property which is not property of the affected person and at the time of the seizure, believes, and has reasonable grounds for believing, that he is entitled to seize that property, then, the Special Administrator is not liable to any person in respect of any loss or damage resulting from the seizure unless that loss or damage is caused wilfully by the Special Administrator or any person who acts on his behalf or by the Special Administrator's own negligence.
(3) Any person who fails to comply with the requirement of the Special Administrator under subsection (1) commits an
39A PART VI MANAGEMENT OF ASSETS AND LIABILITIES-39A. Effect of obstructing or hindering the Special Administrator.
(1) No person shall obstruct or hinder the exercise of any duty, right or power by a Special Administrator.
(2) Any person who contravenes subsection (1) commits an offence and shall on conviction be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding three years or to both. ".
[Ins. Act A1087]
40 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-40. Disclaimer.
(1) Subject to subsection (3), where any part of the asset of the affected person consists of-
(a) any interest in land which is burdened with onerous covenants;
(b) shares in corporations;
(c) unprofitable contracts; or
(d) any other asset that is not saleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money,
the Special Administrator may within twelve months after he becomes aware of any of the above-mentioned asset, disclaim any such asset.
(2) The rights of any person affected by the Special Administrator pursuant to the exercise of his power to disclaim under subsection (1) shall be dealt with in the manner set out in the proposal and any compensation to such person shall rank as an unsecured debt.
(3) The Special Administrator may
41 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-41. Effect of appointment of Special Administrator.
(1) Subject to subsection (6), on the appointment of the Special Administrator, a moratorium shall take effect during which-
(a) any petition for the winding up of the affected person shall be dismissed by the court;
(b) no resolution may be passed or order made for the winding up of the affected person;
(c) no receiver, receiver and manager or provisional liquidator, except any receiver, receiver and manager or provisional liquidator appointed by the relevant regulatory body in respect of any of the persons referred to in paragraph 27(c), may be appointed, or if appointed, his appointment shall immediately cease and he shall vacate his office;
(d) no steps may be taken-
(i) to create, perfect or enforce any security over any asset of the affected person;
(ii) to enforce a judgment over any asset of the affected person;
(iii) to
42 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-42. Undue preference.
(1) On the appointment of the Special Administrator, any transfer, any mortgage,execution, attachment, obligation, settlement, charge, assignment, delivery of goods, payment or other act relating to any asset made, incurred or done by or against the affected person which, had it been done by or against an individual, would in his bankruptcy under the law of bankruptcy be void, voidable or recoverable, may be avoided or recovered by the Special Administrator.
[Am. Act A1087 - Prior text read - "(1) On the appointment of the Special Administrator, any transfer, any mortgage, delivery of goods, payment or other act relating to any asset made or done by or against the affected person which, had it been done by or against an individual, would in his bankruptcy under the law of bankruptcy be void or voidable, may be avoided by the Special Administrator."]
(2) For the purposes of this section, where reference is made in
42A PART VI MANAGEMENT OF ASSETS AND LIABILITIES-42A. Recovery of cash considerations from assets acquired or sold before the appointment of Special Administrator.
(1) Where any asset has been acquired by the affected person for a cash consideration within a period of two years before the appointment of a Special Administrator under this Act-
(a) from a person who was at the time of the acquisition a director of the affected person; or
(b) from a company of which, at the time of the acquisition, a person was a director who was also a director of the affected person,
the Special Administrator may recover from the person or company from which the asset was acquired any amount by which the cash consideration for the acquisition exceeded the value of the asset at the time of its acquisition.
(2) Where any asset has been sold by the affected person for a cash consideration within a period of two years before the appointment of a Special Administrator under this Act-
(a) to a
43 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-43. Vacation of office of receiver, etc.
(1) Any receiver, receiver and manager, or provisional liquidator who vacates his office pursuant to liquidator paragraph 41(1)(c) shall immediately hand over all the assets and books of the affected person to the Special Administrator.
(2) All sums properly incurred in respect of the costs, expenses and remuneration of such receiver, receiver and manager, or provisional liquidator, as the case may be, shall be charged on and paid out of the realised proceeds of the affected person in the manner set out in the proposal.
44 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-44. Special Administrator to prepare proposal.
(1) The Special Administrator shall as soon as reasonably practicable from the date of his appointment prepare and submit to the Corporation a proposal setting forth the Special Administrator's plan with respect to the affected person.
(1A) The proposal of the Special Administrator or any modification to the proposal under section 48 may include any provision as the Special Administrator thinks fit.
[Ins. Act A1087]
(1B) Without prejudice to the generality of the foregoing, the proposal may include provision for-
(a) a compromise or arrangement between the affected person and its creditors or any class of them or between the affected person and its members or any class of them or between the affected person and its debtors or any class of them;
(b) the alteration or reduction of all or part of the share capital of the affected person;
(c) the
45 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-45. The Corporation to consider proposal.
(1) The Corporation shall consider the proposal submitted by the Special Administrator.
(2) The Corporation may approve the proposal for implementation once the Corporation has received the proposal together with the Independent Advisor's report.
46 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-46. Secured creditors meeting.
(1) The Special Administrator shall, after the approval of the proposal by the Corporation, send by prepaid registered post or in such manner prescribed under this Act to the last known address of the affected person and each of the secured creditors of the affected person known to the Special Administrator-
[Am. Act A1087 - Prior text read - "(1) The Special Administrator shall, after the approval of the proposal by the Corporation, send by prepaid registered post or in such manner prescribed under this Act to the last known address of the affected person and each of the secured creditors of the affected person in respect of a disclosed claim-"]
(a) a copy of the proposal;
(b) a copy of the report of the Independent Advisor;
(c) where the Corporation deems appropriate, a memorandum from the Corporation setting out such matters which in the view of the Corpor
47 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-47. Implementation of proposal.
(1) Subject to sections 46, 48 and 49, the Special Administrator shall implement the proposal in accordance with its terms.
(2) The Special Administrator shall-
(a) within fourteen days from the date of the approval of the proposal by the secured creditors of the affected person under section 46;
(b) where there are no secured creditors known to the Special Administrator, within fourteen days from the date of the approval of the proposal by the Corporation under subsection 45(2) ; or
(c) within fourteen days from the date of the approval of the proposal under subsection 48(6) ,
cause to be published in at least two national daily newspapers, one of which shall be in the national language, the approval of the proposal and the time and place for any creditor of the affected person to examine the details of the proposal.
[Subs. Act A108
48 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-48. Modifications to the proposal.
(1) The Special Administrator may at any time after-
(a) the approval of the proposal by the secured creditors of the affected person under section 46; or
(b) where there are no secured creditors known to the Special Administrator, the approval of the proposal by the Corporation under subsection 45(2) ,
propose modifications to the proposal.
[Subs. Act A1087 - Prior text read - "(1) The Special Administrator may at any time after approval of the proposal by the secured creditors of the affected person propose modifications to the proposal."]
(2) The Independent Advisor appointed in relation to the affected person shall review the reasonableness of the proposed modifications and shall determine the necessity to convene a meeting of the secured creditors to approve the proposed modifications.
(3) The decision of the Independent Advisor unde
49 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-49. Regulatory approval conditions.
(1) If-
(a) the approval of any regulatory body is required to implement the proposal; or
(b) the approval of any regulatory body is required to implement any proposed modifications to the proposal,
and approval conditions are imposed by such regulatory body, the Corporation may, notwithstanding that the secured creditors of the affected person have agreed to the proposal under section 46 or 48, direct the Special Administrator to abandon the proposal or otherwise discontinue the implementation of the proposal if the Corporation thinks that such approval conditions are not in the interest of the affected person.
(2) The decision of the Corporation under subsection (1) shall be binding on the affected person, all members and creditors of the affected person and any other person affected by the proposal, whether or not the person had knowledge or notice of the proposal.
50 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-50. Rejection or discontinuance of proposal.
Where the Corporation directs the Special Administrator to abandon the proposal or otherwise discontinue the implementation of the proposal under section 49 or the proposal is not approved under section 46 or 48, the Corporation may consider other options to deal with the management and disposition of the assets of the affected person and may-
(a) request the Special Administrator to submit a new proposal;
(b) remove the moratorium imposed under section 41; or
(c) appoint a replacement Special Administrator.
51 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-51. Qualifications of Special Administrator.
(1) No person shall be appointed as a Special Administrator unless-
(a) the person is a natural person; and
(b) he has consented in writing to his appointment and has not withdrawn his consent as at the date of his appointment.
(2) The following persons shall be qualified to be appointed as a Special Administrator:
(a) a company auditor approved under the Companies Act 1965;
[Act 125]
(b) a person who has, in the opinion of the Corporation, the requisite experience; or
(c) a person who is, in the opinion of the Corporation, capable of performing the duties of a Special Administrator.
(3) The following persons shall not be qualified to be appointed as a Special Administrator:
(a) a corporation;
(b) an undischarged bankrupt;<
52 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-52. Qualifications of Independent Advisor.
No person shall be appointed as an Independent Advisor unless-
(a) the person has consented in writing to the appointment and has not withdrawn its consent as at the date of its appointment; and
(b) the person is-
(i) a merchant bank;
(ii) a firm of accountants; or
(iii) a person (other than a natural person) who, in the opinion of the Corporation, has the requisite experience or is capable of performing the duties of an Independent Advisor.
53 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-53. Two or more Special Administrators.
Where two or more persons are appointed as the Special Administrators of an affected person-
(a) the functions or the powers of the Special Administrator may be performed or exercised by any one of them or by both or all of them jointly;
(b) a reference to the Special Administrator in this Act shall be a reference to whichever one of the persons appointed, as the case may be.
54 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-54. Report of misconduct.
If an investigation into the affairs of an affected person by the Special Administrator reveals any fraud, misfeasance or other misconduct in connection with the promotion or formation of the affected person or in the management of an affected person or its affairs, or where there has been any misappropriation or wrongful retention of any asset which belongs to an affected person, the Special Administrator shall report such fraud, misfeasance or misconduct to the appropriate regulatory or enforcement body.
55 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-55. Validity of transaction.
Any payment made, transaction entered into, or any other act or thing done in good faith by, or with the consent of the Special Administrator, is valid and effective for the purposes of this Act and shall not be void or voidable nor be considered as an undue preference in the winding up of the affected person.
56 PART VI MANAGEMENT OF ASSETS AND LIABILITIES-56. Extension of time.
Where-
(a) for any purpose an act is required to be done within a particular period or before a particular time under the provision of any law or any agreement; and
(a) this Part prevents the act from being done within that period or before that time,
the period is deemed to be extended or the time is deemed to be deferred for the duration of the period that such act is prevented by this Part from being done.
57 PART VII ADDITIONAL RIGHTS-57. Entitlement to dispose assets by private treaty.
(1) Notwithstanding any other law and in addition to any other power the Corporation may have under any contract or any other law, the Corporation or the acquiree as holder of any security, whether as chargee, mortgagee, assignee, lien-holder or otherwise, over any property shall be entitled-
(a) to dispose of such property or any part of such property by way of private treaty; and
(b) where such property consists of land, to take all steps as it deems fit to preserve the value of the land or to facilitate the disposal of the land by way of private treaty, including entering the land (whether by itself or by any person authorised by it) to inspect, protect, secure, maintain or repair the land.
(2) A sale by private treaty under subsection (1) may be effected by private contract, auction, tender or any other mode of sale.
(3) For the purposes of subsection (1) , the Corporation
58 PART VIII APPLICATION OF OTHER ACTS-58. Application of other Acts.
(1) Notwithstanding the provisions of the Islamic Banking Act 1983 the Corporation may-
[Act 276]
(a) provide any credit facility in accordance with Islamic banking concepts;
(b) receive deposits (other than on current account or savings account) from any person in accordance with Islamic banking concepts; and
(c) carry on such other activities as may be approved by the Minister.
(2) The provisions of the Moneylenders Act 1951 shall not apply to the Corporation.
[Act 400]
(3) The provisions of section 132G of the Companies Act 1965 shall not apply to an acquisition or disposition by the Corporation under Part V or to any transfer referred to in section 59.
[Act 125]
59 PART IX APPLICATION OF THE ACT-59. Transfers to and between subsidiaries of the Corporation.
The Corporation may effect-
(a) any transfer of an asset by the Corporation to any subsidiary of the Corporation;
(b) any transfer of an asset between any subsidiary of the Corporation; or
(c) any transfer of an asset to the Corporation from any subsidiary of the Corporation,
[Am. Act A1087 - Prior text read - "(a) any transfer by the Corporation to any subsidiary of the Corporation; (b) any transfer between any subsidiary of the Corporation; or (c) any transfer to the Corporation from any subsidiary of the Corporation,"]
by issuing a vesting certificate under section 14 which shall have effect of vesting all rights and liabilities of the transferor to the transferee.
60 PART IX APPLICATION OF THE ACT-60. Application of the Act to subsidiaries of the Corporation.
(1) Subject to subsections (2), (3) and (4), the provisions of Parts IV, V, VII, VIII and X of this Act shall apply to every subsidiary of the Corporation prescribed under subsection (2) as if the subsidiary is the Corporation itself.
(2) The Minister may, on the recommendation of the Corporation, by notification in the Gazette , prescribe such subsidiaries of the Corporation for the purpose of subsection (1).
(3) Subsection (1) shall immediately cease to apply when a subsidiary prescribed under subsection (2) is no longer a subsidiary of the Corporation.
(4) Where a subsidiary does not carry on activities pursuant to the objectives of the Corporation, the Corporation shall inform the Minister.
(5) The Minister may, upon being informed by the Corporation under subsection (4) or upon being otherwise satisfied that a subsidiary does not carry on activities pursuant to the objectives of the Corporation, revoke the p
61 PART IX APPLICATION OF THE ACT-61. Power of Minister to direct certain provisions not to apply.
(1) Where the Minister of Finance holds fifty per cent or less of the issued share capital of the Corporation, the Minister may, on and from a specified date, by notice in the Gazette , direct that all or any such provisions of this Act as specified in the notice shall no longer apply to the Corporation from that date and any such direction may contain such transitional provisions as the Minister thinks fit.
(2) Any direction under subsection (1) may be revoked at any time by the Minister, by notice in the Gazette , if the Minister is satisfied that the circumstances that led to the giving of the direction no longer exist.
62 PART IX APPLICATION OF THE ACT-62. Application of Part IV to be continued.
For the avoidance of doubt, notwithstanding that the Minister of Finance holds fifty per cent or less of the issued share capital of the Corporation, any guarantee given by the Government pursuant to Part IV shall continue to subsist and be fully effective and valid in accordance with its terms and the provisions of Part IV shall continue to apply.
63 PART IX APPLICATION OF THE ACT-63. Judicial notice.
The Court shall take judicial notice of-
(a) any fact or matter required to be published under this Act; and
(b) any fact or matter set out in any certificate issued under this Act.
64 PART IX APPLICATION OF THE ACT-64. Offer to the Corporation.
(1) An offer or invitation made to the Corporation with respect to shares or debentures shall not be deemed to be an offer to the public for the purposes of the Companies Act 1965.
(2) Without prejudice to subsection (1), an offer or invitation with respect to shares or debentures made to the Corporation shall be taken to be an offer or invitation that is not deemed to be an offer to the public under subsection 4(6) of the Companies Act 1965.
[Act 125]
65 PART IX APPLICATION OF THE ACT-65. Obligation of secrecy.
(1) No member of the Board or the Oversight Committee or officer, employee or agent of the Corporation or person attending any meeting of the Board shall disclose any information which has been obtained by him in the course of his duties or in the course of such meeting and which is not published in pursuance of this Act except-
[Am. Act A1087 - Prior text read - "(1) No member of the Board or any officer, employee or agent of the Corporation or any person attending any meeting of the Board shall disclose any information which has been obtained by him in the course of his duties or in the course of such meeting and which is not published in pursuance of this Act except-"]
(a) for any of the purposes of this Act;
(b) for the purpose of any civil or criminal proceedings under any written law;
(c) in respect of any information available to the public; or
66 PART IX APPLICATION OF THE ACT-66. Immunity.
[Am. Act A1087 - Previous marginal note read - "Indemnity"]
(1) The Corporation, any member of the Board, any member of the Oversight Committee, and any employee or agent of the Corporation shall not be liable to be sued in any Court for loss or damages for or on account of, or in respect of any act or matter done or ordered to be done or omitted to be done by him in good faith and in the intended exercise of any power or discharge of any duty conferred on him or it under this Act.
(2) A Special Administrator or an Independent Advisor appointed under this Act shall not be liable to any action or other proceedings in a Court by any party for any loss or damage caused by any act or matter done or statement made or omitted to be done by him in good faith and in the intended exercise of any function or power, conferred or imposed on him under this Act except where such loss or damage is due to the wilful misconduct or
66A PART IX APPLICATION OF THE ACT-66A. Indemnity.
(1) The Special Administrator, the Corporation and any other person are entitled to be indemnified out of the affected person's property for-
(a) in the case of the Special Administrator, his costs, expenses and remuneration as approved by the Corporation;
(b) in the case of the Corporation, the repayment of any credit facility provided by the Corporation to the Special Administrator or the affected person during the administration of the affected person;
(c) in the case of any other person, the repayment of any credit facility provided by that person to the Special Administrator or the affected person during the administration of the affected person with the approval of the Corporation.
(2) Notwithstanding any other law, a right of indemnity under subsection (1) shall have priority over the assets of the affected person and shall be paid in priority to all other secu
66B PART IX APPLICATION OF THE ACT-66B. Offences committed by company.
(1) Where a person charged with an offence under this Act is a company, every person who at the time of the commission of the offence is a director or officer of the company may be charged jointly in the same proceedings with the company, and where the company is convicted of the offence charged, every such director or officer shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge and that he has exercised all such diligence as he ought to have exercised, having regard to all the circumstances.
(2) Any person who would be liable under this Act to any penalty for anything done or omitted if the thing had been done or omitted by him personally shall be liable to the same penalty if the thing had been done or omitted by his agent, unless he proves that he took all reasonable precautions to prevent the doing or omission of the thing.
(3) In this section, "direc
67 PART IX APPLICATION OF THE ACT-67. No petition to wind up the Corporation.
(1) Notwithstanding the provisions of the Companies to Act 1965 or any other law, no person other than the Minister may present a petition for the winding up of the Corporation or appoint a receiver, receiver and manager, trustee, custodian, intervenor or take any proceedings similar in purpose or effect as an arrangement or liquidation proceeding in respect of the Corporation.
[Act 125]
(2) The Corporation, its officers or employees shall not at any time be taken for any purpose, or declared by any Court or person, as carrying on the business of the Corporation with intent to defraud creditors or to have committed any offence by reason of the fact that the Corporation is carrying on business when it is insolvent or likely to be insolvent.
(3) No officer of the Corporation shall be held liable or be guilty of an offence in any proceedings related to subsection (2).
(4) No officer or employee of the
68 PART IX APPLICATION OF THE ACT-68. Power to make regulations.
(1) The Minister may, on the recommendation of the Corporation, make such regulations as may be expedient or necessary for the better carrying out of the provisions of this Act.
(2) Without prejudice to the generality of subsection (1), regulations may be made for prescribing-
(a) forms (including forms of notification, notices and certificates) for the purposes of this Act; and
(b) any other matter which is authorised or required or permitted by this Act to be prescribed or which is necessary or expedient to be prescribed for carrying this Act into effect.
69 PART IX APPLICATION OF THE ACT-69. Things done in anticipation of the enactment of this Act.
All things done by any person on behalf of the Corporation in the preparation of and towards the proper implementation of any of the provisions of this Act, and any expenditure incurred in relation thereto, in anticipation of the enactment of this Act shall be deemed to have been authorised by this Act, and all rights acquired or obligations incurred on behalf of the Corporation from anything so done shall upon the coming into operation of this Act be deemed to be the rights and obligations of the Corporation.
70 PART IX APPLICATION OF THE ACT-70. Power to terminate operation of this Act.
(1) If at any time it appears to the Minister that it is no longer necessary that this Act should remain in operation, the Minister may, with the concurrence of the Minister of Finance, direct the Board to call a general meeting of the members of the Corporation for the purpose of terminating the Act.
(2) As soon as possible after a Board's meeting pursuant to subsection (1), the Minister may by order published in the Gazette declare that this Act shall cease to remain in operation, and such an order may contain such consequential or transitional provisions as the Minister may deem necessary or expedient.
71 PART IX APPLICATION OF THE ACT-71. Acts done in good faith.
Without prejudice to the application of any provision of this Act, a breach of this Act or any other law by the Corporation, Special Administrator, Independent Advisor or the Oversight Committee does not invalidate any act done by them in good faith.
[Ins. Act A1087]
72 PART IX APPLICATION OF THE ACT-72. Limits on the grant of orders of court.
Notwithstanding any law, an order of a court cannot be granted-
(a) which stays, restrains or affects the powers of the Corporation, Oversight Committee, Special Administrator or Independent Advisor under this Act;
(b) which stays, restrains or affects any action taken, or proposed to be taken, by the Corporation, Oversight Committee, Special Administrator or Independent Advisor under this Act;
(c) which compels the Corporation, Oversight Committee, Special Administrator or Independent Advisor to do or perform any act,
and any such order, if granted, shall be void and unenforceable and shall not be the subject of any process of execution whether for the purpose of compelling obedience of the order or otherwise.
[Ins. Act A1087]
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