Facts
In a bankruptcy opened on December 21, 1959 over Parkhof AG in Basel, the creditors, at the request of the bankruptcy administrator, passed a resolution authorizing the bankruptcy administration to sell the main asset of the estate, the property at Aeschengraben 21, by private sale after the final decision on the existence or non-existence of the mortgage rights asserted thereon. On the complaint of a bankruptcy creditor, the cantonal supervisory authority overturned this resolution as premature.
On December 6, 1961, a bankruptcy creditor informed the bankruptcy administrator that an interested party was willing to purchase the property for 12 million Swiss francs, which would be sufficient to fully satisfy all registered claims. The bankruptcy administrator rejected this offer. Thereupon, the bankruptcy creditor filed a complaint requesting that the bankruptcy administrator be instructed to conclude the private sale to the interested party.
Considerations
The Federal Court states that the complaint was filed late, but can be accepted as a complaint for delay of justice within the meaning of Art. 17 para. 3 DEBA. The bankruptcy administrator had only provisionally rejected the purchase offer, as he considered a private sale at that time to be premature.
The Federal Court affirms the standing to file a complaint of the Board of Directors of Parkhof AG, as it can represent the interests of the company in bankruptcy. The individual shareholders, on the other hand, lack standing to file a complaint.
On the merits, the Federal Court holds that under Art. 128 para. 2 DEBA, an early realization of a property in bankruptcy before the completion of the collocation…