Ramly Ali JCA:

[1] This is an appeal against the decision of the learned judge of the Kuala Lumpur High Court (KL - D8) dated 17 January 2008 in setting aside the winding - up order earlier made by the Ipoh High Court on 21 June 2007 vide the Ipoh High Court Companies (Winding - Up) Petition No: 28 - 1 - 2007 (Ipoh Winding - Up) against the respondent.

Factual Background

[2] The appellant is a sub - contractor for the respondent who was the main contractor for the Flood Mitigation Works carried out for the benefit of the Department of Irrigation and Drainage Malaysia, at Kampung Gajah, Teluk Intan, Perak Darul Ridzuan.

[3] It is not in dispute that the respondent owed the appellant a sum of RM479,825. 52. The appellant then issued a statutory notice pursuant to s 218(1)(e) of the Companies Act 1965 and served it on the respondent on 5 October 2006. The respondent did not pay the debt even after expiry of the 21 days.

[4] On 5 January 2007, the appellant filed a winding up Petition No: 28 - 1 - 2007 at the Ipoh High Court and the petition was fixed for hearing on 21 June 2007. The said petition was duly served on the respondent on 23 February 2007. The Ipoh High Court then issued a Registrars' Certificate of Due Compliance pursuant to r 32(1)(d) of the Companies (Winding - Up) Rules 1972 on 30 May 2007.

[5] On the date of hearing of the petition on 21 June 2007 the respondent failed to turn up even though the petition was duly served on it. The Ipoh High Court then proceeded to hear the submissions on merits by the appellant's counsel and after the official receiver from the Insolvency Department, Ipoh Office confirmed that the papers are in order, the learned judge then ordered that the respondent be wound up.

[6] The Ipoh High Court was also informed on the hearing date that an official search with the Registrar of Companies does not disclose existence of any winding - up order on the respondent company and there is also no other winding - up notice in the Ipoh Official Receiver's records on the date of hearing.

[7] After the winding - up order was granted by the Ipoh High Court, the official receiver then requested that the matter be transferred to the jurisdiction of Kuala Lumpur High Court as the respondent has its registered address in Kuala Lumpur. This case was subsequently transferred to the Kuala Lumpur High Court (Commercial Division) and registered as the Companies (Winding - Up) Petition No: D8 - 28 - 570 - 2007 (KL - D8).

[8] On 5 July 2007, the respondent filed a Notice of Appeal to the Court of Appeal vide Court of Appeal Civil Appeal No: A - 02 - 674 - 2007 through M/s Shamsuddin & Co against the winding - up order made by the Ipoh High Court.

The Proceedings In The Kuala Lumpur High Court

[9] In the Kuala Lumpur High Court, the respondent filed a notice of motion dated 20 July 2007 (encl 18) for a stay order against the Ipoh Winding Up Order dated 21 June 2007. On 24 October 2007, the date of hearing of the respondent's notice of motion for a stay order, a different officer from the Insolvency Department, Kuala Lumpur office, informed the Court that there was an earlier winding up petition vide Kuala Lumpur High Court Companies (Winding Up) Petition No: D2 - 28 - 372 - 2005 (D2 Petition).

[10] After hearing oral submissions, on the same day on 24 October 2007, the learned judge of the Kuala Lumpur High Court (KL - D8) dismissed the respondent's motion for stay. Instead the learned judge on his own volition concluded that once there is in existence a winding - up petition in D2 Court, it is impossible to have another winding - up proceeding against the same company in the Ipoh High Court. Therefore the learned judge concluded that leave is required to file the Ipoh Winding - Up Petition under s 226(3) of the Companies Act 1965. Since no leave was given in the Ipoh High Court for the petition therein the learned judge then set aside the Ipoh High Court winding up order.

[11] On the same day (24 October 2007) the lear