Section 21

Where there is evidence which satisfies the Court that the interest charged in respect of the sum actually lent is excessive and that the transaction is harsh and unconscionable or substantially unfair, the Court shall reopen the transaction and take an account between the licensee and the person sued and shall, notwithstanding any statement or settlement of account or any agreement purporting to close previous dealings and create a new obligation, reopen any account already taken between them and relieve the person sued from

50 Laws of Malaysia ACT 400

payment of any sum in excess of the sum adjudged by the Court to be fairly due in respect of such principal, interest and legal costs as the

Court, having regard to the risk and all the facts and circumstances

(including facts and circumstances arising or coming to the knowledge of the parties after the date of the transaction) may adjudge to be reasonable, and, if any such excess has been paid or allowed in account by the debtor, may order the creditor to repay it and may set aside either wholly or in part or revise or alter any security given or moneylending agreement made in respect of money lent by the licensee and, if the licensee has parted with the security, may order him to indemnify the borrower or other person sued:

Provided that nothing in this subsection shall prevent any further or other relief being given in circumstances in which a Court of equity would give such relief.

Any court in which proceedings might be taken for the recovery of money lent by a licensee shall have and may, at the instance of the borrower or surety or other person liable or of the trustee in bankruptcy, exercise the like powers as may be exercised under this section where proceedings are taken for the recovery of money lent, and the Court shall have power, notwithstanding any provision or agreement to the contrary, to entertain any application under this Act by the borrower or surety or other person liable notwithstanding that the time for repayment of the loan or any instalment thereof may not have arrived.

On any application relating to the admission or amount of a proof by a licensee in any bankruptcy proceedings the Director

General of Insolvency shall exercise the like powers as may be exercised by the Court under this section when proceedings are taken for the recovery of money:

Provided that if the licensee is dissatisfied with the decision of the

Director General of Insolvency the Court may, on the application of the licensee made under the Bankruptcy Act 1967 reverse or vary that decision.

Moneylenders 51

The foregoing provisions of this section shall apply to any transaction whatever its form may be that is substantially one of moneylending by a licensee.

Nothing in the foregoing provisions of this section shall affect the rights of any bona fide assignee or holder for value without notice.

Nothing in this section shall be construed as derogating from the existing powers or jurisdiction of any court.

For the purposes of this section, interest charged in respect of money lent by a licensee is excessive when the rate of that interest exceeds the maximum rate of interest permitted under this Act.