A creditor may initiate winding-up proceedings without a prior judgment based on the company's inability to pay debts, evidenced by admission of debt by the company's directors.

JUDGMENT

Nadzarin Wok Nordin JC:

Introduction

[1] The petitioner herein, Jacdex Interlogistics Sdn Bhd (Petitioner) had commenced winding up proceedings (Petition) against Action Apparel Sdn Bhd (Respondent) in encl 1 hereto pursuant to ss 465(1)(e) and 466(1)(a) of the Companies Act 2016 for the failure of the Respondent to pay the sum of RM1,997,973.71 (Debt) via a statutory notice of demand dated 9 May 2019 (Statutory Notice).

[2] There is also before this Court an application in encl 38 by CIMB Bank Berhad to inter alia intervene and appoint Datuk Ng Seng Liong and Ng Choon Jin of M/s SL Ng Corporate Solutions Sdn Bhd as joint liquidators of the Respondent (Enclosure 38).

Background

[3] The Respondent carries on business of inter alia fabrics, clothing and other related articles.

[4] The Respondent had between 12 May 2018 and 3 July 2018 made various purchases from the Petitioner for inter alia fabrics, zipper, ladies dress, and jump suits amongst others amounting to RM1,997,973.71 of which the petitioner had charged interest at the rate of 2% per month on the amounts due and is claiming a sum of RM718,287.27 from the respondent as late payment interest.

[5] After receiving 3 part payments from the Respondent, the Respondent had thereafter issued 12 post dated cheques in January 2019 amounting to RM2,414,356.60 to the Petitioner but had sought indulgence and extension of time to delay the deposit of the said post dated cheques until April 2019 which the Petitioner had agreed. There were further requests to delay depositing the remaining post dated cheques.

[6] After some time, the Petitioner had issued the Statutory Notice on 9 May 2019 and due to the Respondent failing to make payment within the 21 day provided in the same, the Petitioner had commenced to file this Petition.

Petitioner's Case

[7] It is submitted by the Petitioner that the Petition is essentially grounded on the Respondent's inability to pay the debt due and owing by the Respondent to the Petitioner in the sum of RM2,600,743.25 for goods sold and delivered to the Respondent and a further sum of RM718,287.27 for late payment charges and less 3 payments made which have been accepted, admitted and acknowledged by the Respondent.

[8] It is further submitted by the Petitioner that in accepting, admitting and acknowledging the debt, the Respondent had issued 12 post dated cheques amounting to RM2,414,356.60 but never the less sought indulgence and extension of time to delay the deposit of the said post dated cheques until April 2018 which the Petitioner agreed. Never the less when the first post dated cheque was deposited, the said cheque did not clear and was returned. Thereafter there was a request by the Respondent on 3 other occasions to delay depositing the remaining post dated cheques.

[9] It is alleged by the Petitioner that after the Statutory Notice was issued, the respondent's director and shareholder, one Amara Singam Vamakulasingan (Amara) had proposed 2 settlement options to the petitioner's solicitors which were eventually not accepted and that another director and shareholder from the Respondent, Chan Chuen Pooi (Chan) had simultaneously requested from the Petitioner via whatsapp communication for indulgence and extension of time to settle the Debt.

Respondent's Contentions

[10] The Respondent claims that the identity of the party from whom the Respondent purchased the goods have been intentionally omitted and that the Petitioner had not exhibited any sales vouchers to prove that the Respondent actually purchased the goods from the Petitioner and that the SSM search on the Petitioner only shows that the Petitioner's business is described as an indent sales agent and that there are not in the business of clothing.

[11] It is contended by the Respondent that the Petitioner is involved in unlicensed money lending and that the sums being demanded by the Petitioner is illegal and unenforceable and this Court was then invited to consider certain evidence.

[12] It is t