342. Orders under section 339, 340342A. Recovery of excessive pension contributions(1) Without prejudice to the generality of section 339(2) or 340(2), an order under either of those sections with respect to a transaction or preference entered into or given by an individual who is subsequently adjudged bankrupt may (subject as follows) -
(a) require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the trustee of the bankrupt's estate as part of that estate;
(b) require any property to be so vested if it represents in any person's hands the application either of the proceeds of sale of property so transferred or of money so transferred;
(c) release or discharge (in whole or in part) any security given by the individual;
(d) require any person to pay, in respect of benefits received by him from the individual, such sums to the trustee of his estate as the court may direct;
(e) provide for any surety or guarantor whose obligations to any person were released or discharge (in whole or in part) under the transaction or by the giving of the preference to be under such new or revived obligations to that person as the court thinks appropriate;
(f) provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the preference; and
(g) provide for the extent to which any person whose property is vested by the order in the trustee of the bankrupt's estate, or on whom obligations are imposed by the order, is to be able to provide in the bankruptcy for debts or other liabilities which arose from, were released or discharged (in whole or in part) under or by, the transaction or the giving of the preference.
(2) An order under section 339 or 340 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the individual in question entered into the transaction or, as the case may be, the person to whom the preference was given; but such an order -
(a) shall not prejudice any interest in property which was acquired from a person other than that individual and was acquired in good faith, for value and without notice of the relevant circumstances, or prejudice any interest deriving from such an interest, and
(b) shall not require a person who received a benefit from the transaction or preference in good faith, for value and without notice of the relevant circumstances to pay a sum to the trustee of the bankrupt's estate, except where he was a party to the transaction or the payment is to be in respect of the preference given to that person at a time when he was a creditor of that individual.
(3) Any sums required to be paid to the trustee in accordance with an order under section 339 or 340 shall be comprised in the bankrupt's estate.
(4) For the purposes of this section the relevant circumstances, in relation to a transaction or preference, are -
(a) the circumstances by virtue of which an order under section 339 or 340 could be made in respect of the transaction or preference if the individual in question were adjudged bankrupt within a particular period after the transaction is entered into or the preference given, and
(b) if that period has expired, the fact that the individual has been adjudged bankrupt within that period.
342B. Orders under section 342A(1) Where an individual is adjudged bankrupt and -
(a) he has during the relevant period made contributions as a member of an occupational pension scheme, or
(b) contributions have during the relevant period been made to such a scheme on his behalf,
the trustee of the bankrupt's estate may apply to the court for an order under this section.
(2) If, on the application for an order under this section, the court is satisfied that the making of any of the contributions ("the excessive contributions") has unfairly prejudiced the individual's creditors, the court may make such order as it thinks fit for restoring the position to what it would have been if the excessive contributions had not been made.
(3) The court shall, in determining whether it is satisfied under subsection (2), consider in particular -
(a) whether any of the contributions were made by or on behalf of the individual for the purpose of putting assets beyond the reach of his creditors or any of them,
(b) whether the total amount of contributions made by or on behalf of the individual (including contributions made to any other occupational pension scheme) during the relevant period was excessive in view of the individual's circumstances at the time when they were made, and
(c) whether the level of benefits under the scheme, together with benefits under any other occupational pension scheme, to which the individual is entitled, is excessive in all the circumstances of the case.
342C. Orders under section 342A: supplementary(1) Without prejudice to the generality of section 342A(2), an order under that section may include provision -
(a) requiring the trustees or managers of the scheme to pay an amount individual's trustee in bankruptcy,
(b) reducing the amount of any benefit to which the individual (or his spouse, widow, widower or dependant) is entitled, or to which he has ab accrued right, under the scheme,
(c) reducing the amount of any benefit to which, by virtue of any assignment, commutation or surrender of the individual's entitlement (or that of his spouse, widow, widower or dependant) or accrued right under the scheme, another person is entitles or has an accrued right,
(d) otherwise adjusting the liabilities of the scheme in respect of any such person as is mentioned in paragraph (b) or (c).
(2) The maximum amount by which an order under section 342A may require the assets of an occupational pension scheme to be reduced is the lesser of -
(a) the amount of the excessive contributions, and
(b) the value (determined in the prescribed manner) of the assets of that scheme which represent contributions made by or on behalf of the individual.
(3) Subject to subsection (4) and (5), an order under section 342A must reduce the amount of the liabilities of the scheme by an amount equal to the amount of the reduction made in the value of the assets of the scheme.
(4) Subsection (3) does not apply where the individuals entitlement or accrued right to benefits under the scheme which he acquired by virtue of the excessive contributions (his, "excessive entitlement") has been forfeited.
(5) Where part of the individual's excessive entitlement has been forfeited, the amount of the reduction in the liabilities of the scheme required by subsection (3) is the value of the remaining part of his excessive entitlement.
(6) An order under section 342A in respect of an occupational pension scheme shall be binding on the trustees or managers of the scheme).
343. Extortionate credit transactions(1) Nothing in -
(a) any provisions of section 159 of the Pension Schemes Act 1993 or section 91 of the Pensions Act 1995 (which prevent assignment, or orders being made restraining a person from receiving anything which he is prevented from assigning, and make provision in relation to a person's pension on bankruptcy),
(b) any provision of any enactment (whether passed or made before or after the passing of the Pensions Act 1995) corresponding to any of the provisions mentioned in paragraph (a), or
(c) any provision of the scheme in question corresponding to any of those provisions,
applies to a court exercising its powers under section 342A.
(2) Where any sum is required by an order under section 342A to be paid to the trustee in bankruptcy, that sum shall be comprised in the bankrupt's estate.
(3) Where contributions have been made during the relevant period to any occupational pension scheme and the entitlement or accrued right to benefits acquired thereby has been transferred to a second or subsequent occupational pension scheme("the transferee scheme"), sections 342A and 342B and this section shall apply as though the contributions had been made to the transferee scheme.
(4) For the purposes of this section and sections 342A and 342B -
(a) contributions are made during the relevant period if -
(i) they are made by or on behalf of the individual at any time during the period of 5 years ending with the day of presentation of the bankruptcy petition on which the individual is adjudged bankrupt, or
(ii) they are made on behalf of the individual at any time during the period between the presentation of the petition and the commencement of the bankruptcy, and
(b) the accrued rights of an individual under an occupational pension scheme at any time are the rights which have accrued to or in respect of him at that time to future benefits under the scheme.
(5) In this section and section 342A and 342B -
"occupational pension scheme" has the meaning given by section 1 of the Pension Schemes Act 1993, and
"trustees or managers", in relation to an occupational pension scheme, means -
(a) in the case of a scheme established under a trust, the trustees of the scheme, and
(b) in any other case, the managers of the scheme.
344. Avoidance of general assignment of book debts(1) This section applies where a person is adjudged bankrupt who is or has been a party to a transaction for, or involving, the provision to him of credit.
(2) The court may, on the application of the trustee of the bankrupt's estate, make an order with respect to the transaction if the transaction is or was extortionate and was not entered into more than 3 years before the commencement of the bankruptcy.
(3) For the purposes of this section a transaction is extortionate if, having regard to the risk accepted by the person providing the credit -
(a) the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit, or
(b) it otherwise grossly contravened ordinary principals of fair dealing;
and it shall be presumed, unless the contrary is proved, that a transaction with respect to which an application is made under this section is or, as the case may be, was extortionate.
(4) An order under this section with respect to any transaction may contain such one or more of the following as the court thinks fit, that is to say -
(a) provision setting aside the whole or part of any obligation created by the transaction;
(b) provision otherwise varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held;
(c) provision requiring any person who is or was party to the transaction to pay the trustee any sums paid to that person, by virtue of the transaction, by the bankrupt;
(d) provision requiring any person to surrender to the trustee any property held by him as security for the purposes of the transaction;
(e) provision directing accounts to be taken between any persons.
(5) Any sums or property required to be paid or surrendered to the trustee in accordance with an order under this section shall be comprised in the bankrupt's estate.
(6) Neither the trustee of a bankrupt's estate nor an undischarged bankrupt is entitled to make an application under section 139(1)(a) of the Consumer Credit Act 1974 (re-opening of extortionate credit agreements) for any agreement by which credit is or has been provided to the bankrupt to be re-opened.
But the powers conferred by this section are exercisable in relation to any transaction concurrently with any powers exercisable under this Act in relation to that transaction as a transaction at an undervalue.
345. Contracts to which bankrupt is a party(1) The following applies where a person engaged in any business to make a general assignment to another of his existing or future book debts, or any class of them, and is subsequently adjudged bankrupt.
(2) The assignment is void against the trustee of the bankrupt's estate as regards book debts which were not paid before the presentation of the bankruptcy petition, unless the assignment has been registered under the Bills of Sale Act 1878.
(3) For the purposes of subsections (1) and (2) -
(a) "assignment" includes an assignment by way of security or charge on book debts, and
(b) "general assignment" does not include -
(i) an assignment of book debts due at the date of the assignment from specified debtors or of debts becoming due under specified contracts, or
(ii) an assignment of book debts included either in a transfer of a business made in good faith and for value or in an assignment of assets for the benefit of creditors generally.
(4) For the purposes of registration under the Act of 1878 an assignment of book debts is to be treated as if it were a bill of sale given otherwise by way of security for the payment of a sum of money; and the provisions of that Act with respect to the registration of bills of sale apply accordingly with such necessary modifications as may be made by rules under that Act.
(1) The following applies where a contract has been made with a person who is subsequently adjudged bankrupt.
(2) The court may, on the application of any other party to the contract, make an order discharging obligations under the contract on such terms as to payment by the applicant or the bankrupt of damages for non-performance or otherwise as appear to the court to be equitable.
(3) Any damages payable by the bankrupt by virtue of an order of the court under this section are provable as a bankruptcy debt.
(4) Where an undischarged bankrupt is a contractor in respect of any contract jointly with any person, that person may sue or be sued in respect of the contract without the joinder of the bankrupt.