The court upheld that a judgment is valid and enforceable unless set aside, and proper service of a Bankruptcy Notice can be established through evidence of posting.

Nadzarin Wok Nordin JC:

Background Facts

[1] The Judgment Debtor (JD), one Tambi Bin Nasirun had entered into an agreement dated 11 June 2009 with one Eoncap Islamic Bank Berhad for a financing facility known as as "Pembiayaan Gratuti-I" under the Bal Ai-Inah concept (Financing Facility) wherein the said Eoncap Islamic Bank (who later merged with the Judgment Creditor, Hong Leong Islamic Bank Bhd, herein) wherein the JD was given a personal facility of RM46,000. Under the said Financing Facility, the JD was to pay to Eoncap Islamic Bank the total sum of RM54,586.66, vide an agreed sale price under the Financing Facility by way of 32 monthly instalments. Amongst the terms of the Financing Facility was that the JD was to inform Eoncap Islamic Bank in the event the JD was to retire early (ie there was a premature retirement on the party of the JD).

[2] The JD had in consideration of the Financing Facility issued an Irrevocable Standing Instructions to Eoncap Islamic Bank allowing them to deduct any gratuity received from the Jabatan Perkhidmatan Awam (JPA) of which the JD was under the service of. The sum under the Financing Facility was later disbursed into the JD's savings account on 11 June 2009.

[3] The JD had retired on 1 July 2010 which was earlier than the JC's due date for retirement and the JD had failed to inform Eoncap Islamic Bank of the same. On 12 July 2010 JO had approved and disbursed into the JD's savings account the gratuity amount of RM76,026.27. On the very next day, ie 13 July 2010, there was a withdrawal of RM50,000 form the JD's savings account and subsequent to the same there were many other withdrawals made. JPA had also disbursed a monthly pension of RM1,407.89 into the JD's monthly savings account on a monthly basis.

[4] On 24 October 2011 by way of a Court order vide Petition No D26A-1-10 (Muamalat)-2011 (Court Order), the Court had granted a vesting order and a transfer of all its assets etc to the JC herein.

[5] It was alleged that the JD had breached the terms of the Financing Facility and the JC had then made a demand for the full sum under the said Financing Facility which the JD had failed, refused and/or neglected to repay and consequently the JC thereafter terminated the Financing Facility. On 13 February 2015 the Judgment Creditor (JC) had commenced an action against the JD vide the Kuala Lumpur Magistrate's Court Suit No A72M-3380-02/2015 for the amount outstanding under the Financing Facility.

[6] The JC had duly served the Writ of Summons and Statement of Claim on the JD by way of AR Registered post and obtained Judgment in Default (JID) of appearance against the JD on 30 March 2015. Thereafter the JC had on 29 March 2019 amended the JID by correcting or amending the words "Kemudahan pinjaman peribadi' to "Kemudahan pembiayaan peribadi'. A copy of the said Amended JID dated 1 April 2019 was then posted to the JD's address by the JC' Solicitors.

[7] On 29 May 2019 the JD had filed a Summons In Chambers at encl 13 to set aside the Bankruptcy Notice (BN) filed by the JC on 18 April 2019. There is now an appeal, at encl 39, against the decision of the Senior Assistant Registrar (SAR) on 18 October 2019 allowing the JD's application to set aside the BN at encl 13.

[8] The JD had argued in his Summons In Chambers (SIC), encl 11, which were supported by and thereafter averred in 3 more of the JD's affidavits, being encls 12, 20, 23 and 35 and which were also summed up in the JD's written submissions in opposition to encl 39 namely that:

i. The JD never received the Amended Judgment In Default dated 29 March 2019 (Amended JID) and that the JC had not complied with the pre requisite requirement to serve the Amended JI, the judgment is therefore not a final one, causing prejudice to the JD;

ii. JD had paid off the debt fully through the payment of gratuity as part of the JD's pension after the JD's retirement from service which was to be paid into the EonCap Islamic account/loan account by way of automa