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Rules 92 (1) (C) : of Mohamad Shariff Bin Haji Hussain), It Was Held That An Order, Even If Irregular, Is Valid

The judgment debtor raised several issues to set aside the bankruptcy notice, including that the notice did not comply with insolvency laws, was not dated, required leave, and the debtor had no knowledge of it. The judgment creditor disputes each point. The creditor argues the notice was properly issued and served according to insolvency rules. The debtor's contentions are mere denials and the application to set aside was made too late. The creditor obtained a final judgment for a sum owed plus 5% interest as prescribed. The debtor's arguments regarding improper interest calculation and limitation periods are without merit according to case law cited. The creditor will seek to strike out the debtor's affidavit as frivolous.

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Onn Kit Ooi
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84 views3 pages

Rules 92 (1) (C) : of Mohamad Shariff Bin Haji Hussain), It Was Held That An Order, Even If Irregular, Is Valid

The judgment debtor raised several issues to set aside the bankruptcy notice, including that the notice did not comply with insolvency laws, was not dated, required leave, and the debtor had no knowledge of it. The judgment creditor disputes each point. The creditor argues the notice was properly issued and served according to insolvency rules. The debtor's contentions are mere denials and the application to set aside was made too late. The creditor obtained a final judgment for a sum owed plus 5% interest as prescribed. The debtor's arguments regarding improper interest calculation and limitation periods are without merit according to case law cited. The creditor will seek to strike out the debtor's affidavit as frivolous.

Uploaded by

Onn Kit Ooi
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DALAM MAHKAMAH TINGGI DI KUALA LUMPUR

DALAM WILAYAH PERSEKUTUAN, MALAYSIA


DALAM KEBANKRAPAN NO. WA-________________
ANTARA

LIM CHEE HOE


(K/P NO. 20519-10-5843)
(CARRY ON BUSINESS
UNDER THE NAME OF
“BLUE CLOUD STUDIO”)
(REGISTRATION NO. 002316827-U) … JUDGMENT CREDITOR

DAN

SANTHRASKARAN A/L RAJOO


(K/P NO. 620519-10-5843) … JUDGMENT DEBTOR

SUBMISSION

The Judgment Debtor raised several issues in his affidavit dated 14 Nov 2019 for an
application to set aside the bankruptcy notice dated 15 Aug 2019. The Judgment Creditor
disputes each and every Judgment Debtor’s contentions.

Judgment Debtor contends that:

i) Bankruptcy Notice did not comply with the latest Insolvency Act.

Judgment Creditor’s (JC) Reply


-The Bankruptcy Notice (BN) is duly complied with Insolvency Act. Judgment Debtor
contention is a mere denial. The said Bankruptcy Notice will be exhibited in the Chamber.

-BN was served on 12th Sept 2019 and JD’s affidavit to set aside the BN was made on 14 Nov
2019 which was out of the time limited for setting aside the BN, S.3(i) , S.3(2)(i), Insolvency
Rules 92 (1)(c)

“Hassan Ishak; Exparte:Bank Pembangunan Malaysia Berhad, it was held that the time
for JD to set aside BN is within the 7 days after the service of BN.”
-High Court Shah Alam

“Tioh Ngee Heng; ex p Yap Kiu Lian @ Norhashimah Yap (Administratrix of the estate
of Mohamad Shariff bin Haji Hussain), it was held that an order, even if irregular, is valid
until set aside.” -Malaysia Legal Review High Court
Therefore, unless BN is set aside, JD has committed an Act of Bankruptcy 7 days after the
service of BN. JC is entitled to petition for Bankruptcy proceeding against the JD.
Azzubair Abdul Rahman V. Bank Muamalat Malaysia Berhad
“JD’s application to set aside the BN is grounded on irregularity which shall not be a ground
to invalidate Bankruptcy Proceeding unless there is substantial injustice as provided in S.131
IA.” -High Court Shah Alam

ii) Bankruptcy Notice was not dated.

JC’s Reply
Refer to the same in (i). BN will be exhibited in Chamber.

iii) No leave was obtained in the filling of BN as required by law.

JC’s Reply
This contention is frivolous. There is no requirement that leave is needed to file a Bankruptcy
Notice under the law. JC’s BN is founded on the Final Judgment and that would entitle the JC
to file a BN, S.3(i) IA. BN was issued accordingly with IA rules 90.

iv) No knowledge of the BN

JC’s Reply
This is a lie. As shown in the Affidavit of Service, deponent states that the JD has
acknowledged his name on the BN and also accepted the service. Affidavit of Service will be
exhibited in the Chamber.

v) No judgment sum was owed.

JC’s Reply
JC has obtained a final judgment against the JD for a sum of RM122,969-00 with 5% post
judgment interest calculated from the judgment date until the full settlement. The final
judgment has also been served on the JD.

vi) Interest calculated by the JC was out of the time prescribed in the Limitation Act;
and

JC’s Reply
Final judgment was obtained against the JD on 09.04.2019 with interest fixed at 5% as
prescribed by Chief Justice Practice Direction and O42, r17. S.6 (3) Limitation Act (LA)
provides that interest cannot be recovered after 6 years which is not applicable here.

vii) Improper calculation of interest.

JC’s Reply
The prescribed interest was calculated based on the judgment sum which was RM122.969-00
up to the date of issue of BN. The sum was also quantified up to the date of BN.

“P Mukundan Pk Kunchu Kurup & Ors V. Daniel Anthony & Another Appeal, As long
as the sum owed is quantified up to the date of service, the BN is valid and in accordance
with the IA. There is no requirement that the interest must be quantified from the starting date
until full settlement as it is not capable of quantified at that point of time.”

O.18 r19 shall be invoked to strike out JD affidavit on the ground that it was frivolous.

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