Malaysia legislation
Section 49
Section 49
(a)
the Bank informs the Minister—
(i)
that it is insolvent;
(ii)
that it is likely to become unable to meet all or any of its obligations; or
(iii)
that it is about to suspend payment to any extent;
or
(b)
whether after an examination is made under section 45
or 46 or otherwise, the Minister is satisfied that the Bank—
(i)
is carrying on its business in a manner detrimental to the interest of its depositors, or its creditors, or the public generally;
(ii)
is insolvent, or has become or is likely to become unable to meet all or any of its obligations, or is about to suspend payment to any extent; or
(iii)
has contravened any provision of this Act or any provision of any written law, regardless that there has been no criminal prosecution in respect thereof, the Minister may, by order in writing, exercise any one or more of the following powers, as he deems necessary:
(aa) require the Bank to take any steps, or any action, or to do or not to do any act or thing, in relation to the Bank, or its business, or its directors or officers, which the
Minister may consider necessary and which he sets out in the order, within such time as may be set out therein;
(bb) prohibit the Bank from extending any further credit facility for such period as may be set out in the order and make the prohibition subject to such exceptions, and impose such conditions in relation to the exceptions, as may be set out in the order, and, from time to time, by further order similarly made, extend the aforesaid period;
(cc)
notwithstanding anything in any written law, or any limitations contained in the constituent documents of the
Bank, for reasons to be recorded by him in writing, remove from office, with effect from such date as may be set out in the order, any officer of the Bank;
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Bank Simpanan Nasional Berhad
(dd)
notwithstanding anything in any written law, or any limitations contained in the constituent documents of the
Bank, and, in particular, notwithstanding any limitation therein as to the minimum or maximum number of directors, for reasons to be recorded by him in writing—
(i)
remove from office, with effect from such date as may be set out in the order, any director of the
Bank; or
(ii)
appoint any person or persons as a director or directors of the Bank, and provide in the order for the person or persons so appointed to be paid by the Bank such remuneration as may be set out in the order; or
(ee) appoint a person to advise the Bank in relation to the proper conduct of its business, and provide in the order for the person so appointed to be paid by the Bank such remuneration as may be set out in the order.
(2)
Where any of the circumstances set out in paragraphs (1)(a)
and (1)(b) exist in respect of the Bank, the Minister may, whether or not he had exercised any of his powers under paragraph (1)(aa),
(1)
(bb), (1)(cc), (1)(dd), or (1)(ee)—
(a)
assume control of the whole of the property, business and affairs of the Bank, or assume control of such part of its property, business and affairs, or by order published in the Gazette appoint any person to do so on his behalf;
(b)
appoint any person to carry on the whole or any part of the business and affairs of the Bank for which control has been assumed by the Minister;
(c)
apply, or authorize any person by order published in the
Gazette to apply, to the High Court to appoint a receiver or manager to manage the whole of the business, affairs and property of the Bank, or such part thereof as may be set out in the order, and for all such incidental, ancillary or consequential orders or directions of the High Court in relation to such appointment as may, in the opinion of the Minister, be necessary or expedient; or
(d)
present, or authorize any person by order published in the Gazette to present, a petition to the High Court for the winding up of the Bank.
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(3)
The costs and expenses incurred in relation to the assumption of control under paragraph (2)(a) or the remuneration of the person appointed under that paragraph or paragraph (2)(b), as the case may be, shall be payable out of the funds and properties of the
Bank as a first charge thereon.
(4)
An order of the Minister under subsection (1) or (2), may, from time to time, be modified, amended, altered, varied or replaced either prospectively, or where it is not impracticable or unjust to do so, retrospectively, by a further order under subsection (1) or
(2)
, as the case may be.
(5)
No order under subsection (1) or (2), or by virtue of subsection
(4)
, shall be made unless the Bank, and in the case of an order under paragraph (1)(cc) or subparagraph (1)(dd)(i), also the officer or director who is to be removed from office, has been given a reasonable opportunity of making representations against, or otherwise in respect of, the proposed order:
Provided that if in the opinion of the Minister, in the case of an order to be made by the Minister under subsection (1) or (2), or by virtue of subsection (4), any delay would be detrimental to the interests of the Bank, or its depositors or creditors, or the public generally, the order may be made first and the opportunity to make representations against or otherwise in relation to the order shall, in such case, be given immediately after the order has been made, and the order may, in consequence of such representations either be confirmed, or be modified, amended, altered, varied or replaced under subsection (4), or be revoked under subsection (6), subject to such conditions, if any, as the Minister thinks fit to impose.
(6)
An order of the Minister made under subsection (1), or by virtue of subsection (4), may at any time be revoked by an order similarly made by the Minister and any such order may contain all such orders, directions or provisions of an incidental, ancillary, or consequential nature, as may be deemed necessary or expedient by the Minister.
(7)
Where the Bank fails to comply with—
(a)
paragraph (1)(aa) or (1)(bb), it shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ten million ringgit and, in the case of a continuing
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Bank Simpanan Nasional Berhad offence, to a further fine not exceeding ten thousand ringgit for each day during which the offence continues after conviction;
(b)
subparagraph (1)(dd)(ii) or paragraph (1)(ee), it shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one million ringgit and, in the case of a continuing offence, to a further fine not exceeding one thousand ringgit for each day during which the offence continues after conviction.
(8)
Where the Bank is guilty of an offence under paragraph
(1)
(aa) or (1)(bb), any person who at the time of the commission of the offence was a person responsible for the Bank shall also be guilty of that offence and shall on conviction be liable to a fine not exceeding ten million ringgit or to imprisonment for a term not exceeding ten years or to both and, in the case of a continuing offence, to a further fine not exceeding ten thousand ringgit for each day during which the offence continues after conviction.
(9)
Any person who contravenes subsection (5) or (6) shall be guilty of an offence and shall on conviction be liable to a fine not exceeding ten million ringgit or to imprisonment for a term not exceeding ten years or to both and, in the case of a continuing offence, to a further fine not exceeding ten thousand ringgit for each day during which the offence continues after conviction.
Provisions in relation to an appointment under section 49