Chua J:

The facts and arguments sufficiently appear in the judgment of Ambrose J below.

I have had the opportunity of reading the judgment of Ambrose J.

I agree with the reasons Ambrose J gives for dismissing this appeal and I have nothing to add of my own.

JUDGMENT

Wee Chong Jin J:

This is an appeal from the High Court in Bankruptcy refusing an application made under s. 104(1) of the Bankruptcy Ordinance by Peter Wong, a debtor, asking the Court to annul the adjudication order made against him on 11 February 1957. Section 104(1) provides as follows:

104.(1) Where in the opinion of the Court a debtor ought not to have been adjudged bankrupt, or where it is proved to the satisfaction of the Court that the debts of the bankrupt are paid in full ... the Court may annul the adjudication.

The debtor had been adjudged bankrupt on a petition presented by a creditor. The act of bankruptcy relied on was that the Sheriff had made a return that the debtor was possessed of no property liable to seizure under a writ of seizure and sale. At the hearing of the petition on 11 February 1957 the debtor disputed the alleged act of bankruptcy and filed an affidavit in support in which he affirmed that he had goods in stock worth more than $38,000 and was interested in a big housing scheme. The learned Judge sitting in Bankruptcy after hearing the oral testimony of the solicitor for the petitioning creditor who testified that the debtor had interviewed him in his office on 15 January 1957 and had informed him at that interview that he had no assets, having sold them all previously and applied them in part payment of his debts, made a receiving order and an adjudication order against the debtor.

Subsequently the debtor made an application under s. 104(1) to annul the adjudication on the ground that the act of bankruptcy relied on, namely, the Sheriff's nulla bona return, was not a valid act of bankruptcy since the debtor was, in fact, possessed of property liable to seizure at the date of the Sheriff's return. In support of his application the debtor adduced additional evidence that at the date of the Sheriff's return he was in fact possessed of property liable to seizure. The Court below accepted the additional evidence adduced but decided that it had a discretion under s. 104(1) to grant or refuse applications for annulment of adjudications and, in the particular circumstances of this case, refused to exercise its discretion in favour of the debtor.

The only point for the determination of this Court is whether or not, the Sheriff's return being in fact incorrect, the power conferred upon the Court by s. 104(1) is discretionary or not. In the course of the argument, Counsel for the debtor abandoned the other point raised in his Memorandum of Appeal, namely, that assuming the Court below had a discretion in the matter, the discretion had been wrongly exercised. In any event I am of the opinion, for the reasons set out by Ambrose J whose judgment I have had the opportunity of reading, that there had been no wrongful exercise of discretion by the Court below.

Counsel for the debtor contended as follows. Once the Court had come to the conclusion that at the date of the Sheriff's return the debtor was possessed of property liable to seizure and that therefore the Sheriff's nulla bona return was, in fact, incorrect then the debtor had not committed the act of bankruptcy relied on by the petitioning creditor. As there was no act of bankruptcy it followed, so Counsel contended, that the debtor ought not to have been adjudged bankrupt because the very foundation of the Court's jurisdiction to make an adjudication order, namely an act of bankruptcy committed by the debtor, is removed. Counsel relying on the decision of the Court of Appeal in the case of Yap E Boon [1933] MLJ 217 has therefore invited this Court to say that as the debtor ought not to have been adjudged bankrupt the adjudication must be annulled, the Court having no discret