Abu Mansor Ali JCA:

[1] On 21 July 1995 we struck out this appeal because we unanimously held that the appeal was not properly before us and we said we would give our reasons at a later date.

[2] The facts as found by the learned Judge were as follows:

Background facts

Rich's Supercentre Sdn Bhd ("the company") rented the premises described as Nos 1-21, Jalan Temoh, 41400 Klang, Selangor Darul Ehsan ("the premises") from the applicant at the rate of RM30,000 per month and car-park at the rate of RM3,000 per month. A tenancy agreement was executed between the parties on 17 November 1978 for a term of three years (see exhibit TSC-1). Under cl 3.03 the company deposited three (3) months' rental of RM90,000 with the applicant. By way of cl 7.02 the company is given the option to purchase the premises in the event the applicant, as the landlord, shall desire to sell the premises or any part thereof. In the purported exercise of the right under cl 7.02, the applicant vide letter dated 22 April 1989 gave the company one month's notice of option to purchase the premises. Apparently the company appeared to have not responded to the offer of option to purchase. The applicant then issued a notice dated 10 June 1989 to that effect and at the same time giving the company one month's notice to vacate the premises by 1 August 1989 for the applicant to exercise its rights under cl 7.02 of TSC-1.

At the time the applicant gave the one month's notice to vacate, that is, 10 June 1989, there was already a petition filed in the High Court, Johor Bahru on 15 May 1989 by Success Sports company for the winding-up of the company vide companies (winding-up) NO 28 67 of 1989 in which a winding-up order was subsequently made on 7 December 1999 by the High Court. The premises was surrendered to the applicant on 19 December 1989 by the liquidator (see exhibit TSC-3). Apparently, the rents for the months of June to December were not paid and by way of notice dated 7 November 1990 (TSC-3), the applicant claimed the arrears at double rents which make a total sum of RM396,000 and purported to adjust the deposit sum of RM90,000 in which case the sum due should be RM306,000. How in TSC-3 the figure of RM429,000 was arrived at for all arrears due, I do not know. Be that as it may, the applicant is now claiming a sum of RM339,000 (after adjusting the deposit of RM90,000) from the liquidator as arrears of rental due to it from the company. On the other hand, the liquidator filed notice of originating motion No 25-13-92 dated 2 April 1992 against the applicant (respondent in the case) praying for refund of the deposit of RM180,000 (now agreed by Mr Ong Ban Chai should be RM90,000). The originating motion of the liquidator, as agreed, was stood down pending the disposal of this originating motion.

[3] The learned Judge found he had two issues for the consideration vis:

1. Whether the applicant is entitled to forfeit the deposit of RM90,000 towards the payment of the arrears of rental.

2. Whether the applicant can claim for the arrears of rental from the liquidator by way of this originating motion.

[4] When the learned Judge was at the point of examining issue No 2 he held:

1

In any event, it would seem clear that this originating motion was filed after the winding-up order was made by the Court and thus would require leave of the Court under s 226(3) of the Act which reads:

3. When a winding-up order has been made or a provisional liquidator has been appointed no action or proceeding shall be proceeded with or commenced against the company except:

(a) by leave of the Court; and

(b) in accordance with such terms as the Court imposes.

As s 226(3) has not been complied with by the applicant, this originating motion, in my view, is not properly before the Court and should therefore be struck out.

In the circumstances this originating motion is dismissed with costs.

[5] If the reason for the dismissal of the applicant's application as found by the learned Judge under s 226(3) of