Facts
On 18 January 2007, Y. served X. SA with a payment order in the context of a debt enforcement proceeding for bills of exchange, to which the defendant filed an opposition. By judgment of 27 February following, the Court of First Instance of the Canton of Geneva declared this opposition partially admissible.
On 8 March 2007, the defendant brought an action to annul the debt enforcement proceeding based on art. 85a DEBA. On 30 March 2007, the plaintiff filed a bankruptcy petition against the defendant; the latter requested postponement of the bankruptcy under art. 173 para. 1 or 2 DEBA.
By judgment of 8 May 2007, the Court of First Instance of the Canton of Geneva declared the defendant bankrupt, with effect as of that day at 2:15 pm. X. SA has filed a civil law appeal with the Federal Tribunal against this judgment, requesting its annulment; alternatively, it requests its annulment and remittal of the case to the Geneva judicial authorities for judgment by a higher court.
Considerations
The appellant argues that the previous authority arbitrarily violated art. 173 para. 1 DEBA by ruling on the bankruptcy petition before the request for provisional suspension of the debt enforcement proceeding and by refusing to postpone the declaration of bankruptcy.
The Federal Tribunal examined the relationship between art. 85a para. 2 and 173 para. 1 DEBA and concluded that, if the defendant intends to obtain a provisional suspension of the debt enforcement proceeding in order to benefit from a postponement of the bankruptcy, it must file its request before the bankruptcy hearing. If the defendant has done so, the judge may not declare bankruptcy before the outcome of the request for suspension of the debt enforcement…