[*409] 1986 February 19.
(KALLI S , D.J.)
IN THE DISTRICT COURT OF NICOSIA
In Bankruptcy: Re Polydoros Kyriacou,
Ex Parte : Galanos Brothers,
Applicants.
Bankruptcy notice - Issue of - Whether sanction of the Court required.
M. Montanios, for the Applicant.
RULING
The following ruling was delivered by:
KALLIS, D.J.: On February 5, 1986, learned counsel for the applicant presented to the Registry of this Court a request for the issue of a Bankruptcy Notice; and as, at the same time, he submitted to the Registrar that he could only issue the Bankruptcy notice upon the leave or sanction of the Court, the Registrar fixed a day (10.2.86) with a view to hearing counsel on his above submission.
It was the submission of learned counsel for the applicant before this Court that before the Registrar issues a Bankruptcy notice such issue should be sanctioned by the Court; and he relied, in support of his submission on the phrase "By the Court" in Form 4 of the Bankruptcy Rules, on Tonks v. Tonks, 21 C.L.R. 108, and on Halsbury's Laws of England, 3rd ed., Vol. 2, para. 523, p.281. [*410]
Let me say straightaway that the submission is not born out by anything contained in the last two citations; and I will hereafter proceed to consider whether it is born out by the said Form 4 of the Bankruptcy Rules.
The request for the issue - and the issue itself - of the Bankruptcy Notice is governed by rules 38-41 of the Bankruptcy Rules which, so far as relevant, run as follows:-
"38. - (1) A bankruptcy notice may be issued by the registry of any Court in which a bank ruptcy petition might be filed.
(2) A bankruptcy notice shall not be invalid by reason that it is issued by a wrong Court or a wrong registry, but in such a case the Court may, if it thinks fit, order the notice to be set aside on such terms as to costs or otherwise as may be just.
39. A creditor, desirous that a bankruptcy notice may be issued, shall produce to the Registrar an office copy of the judgment or order on which the notice is founded and file the notice, together with a request for issue. The creditor shall at the same time lodge with the Registrar two copies of the bankruptcy notice to be sealed for service.
40. - (1) Every bankruptcy notice shall be endorsed with the name of the advocate actually suing out the same [*411]
40. - (2) There shall also be indorsed an intimation to the debtor that if he has a counterclaim, set-off, or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid, and which he could not have set up in the action or proceeding in which the judgment or order was obtained, he must, within the time specified in the notice, file an affidavit to that effect with the Registrar. Such affidavit shall be indorsed with an address within the town in which the registry of the Court is situated at which notices to the debtor be left by the Registrar.
(3) In the case of a notice served in Cyprus the time shall be three days after service. In the case of a notice served elsewhere the Registrar shall fix the time when issuing the notice.
41. The filing of such affidavit shall operate as an application to set aside the bankruptcy notice, and thereupon the Registrar shall fix a day for hearing such application, and not less than three days before the day so fixed shall give notice thereof both to the debtor and the creditor at the addresses given by them under rule 40. If the application cannot be heard until after the expiration of the time specified in the bankruptcy notice as the day on which the act of bankruptcy will be complete, the Court shall extend the time, [*412] and no act of bankruptcy shall be deemed to have been committed under the notice until the application has been heard and determined.
42. Subject to the power of the Court to extend the time, a bankruptcy notice to be served in Cyprus shall be served within one month from the issue thereof."
From a mere reading of the above Rules it is clear that the request for the issue of the Bank- ruptcy notice is filed with the Registrar (rule 39); and the notice is issued by the Registry (rule 38(1)) or the Registrar (rule 40(3)). By virtue of the above Rules the Court expressly assumes jurisdiction for the purpose of setting aside the notice (rule 38(2)), for the purpose of extending the time within which to hear an application for the setting aside of a Bankruptcy notice (rule 41) and for the purpose of extending the time within which to serve a bank- ruptcy notice (rule 42). So it is clear that where the legislator wished to involve the Court it did so in clear and express language.
Now, as already stated, learned counsel relied on the words "By the Court" which appear at the end of the Bankruptcy notice - Form 4 of the Bankruptcy Rules; and it is therefore pertinent to set out in full hereunder the Bankruptcy notice with a view to evaluating the significance of its wording. Form 4 provides: [*413]
"BANKRUPTCY FORM No. 4.
Bankruptcy Notice (r. 40) - (Title)
Form No.4
To the above-named debtor of .............. Take notice that within (seven) days after service of this
notice on you, you must Day to ............. of .............. (or to..............of .............. his (or their) agent duly authorized) the sum of £.............. claimed by the said .............. as being the amount due on a final judgment or order obtained by him or them against you in the..............Court of ............................, Registry of .............., dated .............. whereon execution has not been stayed, or you must secure or compound for the said sum to his or their satisfaction or to the satisfaction of his or their said agent) or to the satisfaction of this Court; or you must satisfy this Court that you have a counterclaim, set-off, or cross - demand against him or them which equals or exceeds the sum claimed by him or them and which you could not set up in the action or other proceedings in which the judgment or order was obtained.
Dated this.............. day of .............., 19......
By the Court,
(Sign.) ..............
Registrar".
Under the definition section - 2 - of the Bankruptcy Law, Cap. 5 "the Court" means the Court having jurisdiction in Bankruptcy under this Law; and under section 87 of the same Law "the Courts having jurisdiction in Bankruptcy shall be the District Courts and in the [*414] exercise of such jurisdiction shall subject to the provisions of this Law have all the powers conferred on District Courts as in the trial of a civil action".
Having anxiously considered the wording of the relevant phrase I cannot construe it as meaning that the issue of a Bankruptcy Notice must be sanctioned by the Court. It merely means that the bankruptcy notice is issued by the Court having jurisdiction in Bankruptcy as above defined. Had the intention of the Legislature been to involve the Court in the way suggested by counsel it would have said so in clear and unequivocal language and not to leave such involvement to the words "by the Court". From a mere reading of the rules governing issue of a Bankruptcy notice it is clear that the legislature has bestowed such issue in clear and express terms to the Registrar without interference by the Court.
And it is well-settled by now that a Court cannot assume jurisdiction on a given matter unless such jurisdiction is given to it by the Law; and "a trial and decision by an inferior Court on a matter on which it has no jurisdiction is a nullity" (see Central Co-operative Bank v. C.Y.M.S. (1984) 1 C.L.R. 435 at p. 438). In the instant case the Law or Rules do not confer jurisdiction on the Court to act in any way before the issue of a Bankruptcy notice, as suggested by learned Counsel, and his submission cannot, therefore, be upheld.
Having concluded as above I would add that my conclusion finds support in the wording of rule 11 of the Bankruptcy Rules which runs as follows:
"All notices and other process issued by the Court shall be sealed". [*415]
Goinq through the various Bankruptcy Rules and Forms we find that many processes, such as for example Creditor' s petition are filed with the Registrar, they are sealed and served on the respondent, and thus emanate from the Court, but the Court has no involvement up to the date of hearing. And even though the Court has no involvement they can be described as "process issued by the Court" within the meaning of rule 11.
In the result the submission cannot be sustained.
Submission not sustained.