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COURT OF APPEAL, KUALA LUMPUR
K BALASUBRAMANIAM – Appellant
Versus
MBF FINANCE BHD & ORS – Respondent
[Appeal No: W-02-17-1994]
JUDGMENT
Mohd Saari Yusoff JCA:
On 30 September 1993, the appellant ("liquidator") obtained various ex parte orders which were subsequently set aside on 8 July 1994. Reliefs prayed for by the liquidator in the court below are as follows:
(1) (not applicable);
(2) commence legal proceedings against MBF Finance Berhad (hereinafter referred to as MBF) for the return of RM4 million and a further RM5.75 million;
(3) give notice to all creditors including secured creditors to prove their debts;
(4) acquire from the Receivers & Managers (hereinafter referred to as R&M) inter alia , the accounts, documents, ledgers & monies and other valuables ("the acquiring order");
(5) transfer Originating Summons No. D6-24-018-92 to this court.
Against the order of setting aside, the liquidator appeals.
Antecedent Facts
On 17 November 1982, Kosmopolitan Credit & Leasing Sdn Bhd ("KCL") created a debenture ("the debenture") in favour of a co-operative society known as Koperasi Serbaguna Kosmopolitan Berhad ("Koperasi").
Subsequently, the rights under the debenture were assigned by Koperasi to Kewangan Utama Malaysia Berhad ("KUMB") by virtue of a deed of assignment dated 16 November 1990.
On 8 February 1991, the 2nd respondent was appointed by the secured creditor as R&M pursuant to the terms of the debenture.
On 16 May 1991, on a petition presented by a creditor under s. 218 of the Companies Act 1965 ("the Act"), the High court ordered the winding-up of KCL and appointed the appellant as the liquidator.
KUMB was subsequently acquired by the 1st respondent. By virtue of a vesting order dated 30 October 1991, all the rights and liabilities of KUMB became vested in the 1st respondent.
Subsequently, on 14 May 1992, the liquidator filed Originating Summons No. D6-24-98-92 seeking, inter alia , a declaration that the debenture was null and void. This matter has yet to be determined by the High court.
The central issue for determination is whether the court has jurisdiction to grant the acquiring order.
Excerpts from the judgment of the Federal court in Kimlin Housing Development Sdn Bhd (Appointed Receiver and Manager) (in liquidation) v. Bank Bumiputra (M) Bhd & Ors , [1997] 2 MLJ 805 at p. 302 reads:
The position in this country is different. Because a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument is by definition (see s. 4(1)(b) of the Act ) an officer of the corporation - and all officers of a corporation, whether past or present, are obliged under pain of prosecution under s. 300(1) of the Act , to deliver up to the liquidator appointed by the court or as he direct
(i) all the moveable and immovable property of the corporation in his custody or under his control; or
(ii) all books and papers in his custody or control belonging to the corporation, being by law required to deliver up the same (see s. 300(1)(b)(i) and (ii) - the clear implication is that liquidation does not merely terminate the agency of a receiver and manager but also his powers on winding up, since there is no estate for the receiver and manager to administer.
For the liquidator, it is submitted that the present case is on all fours with Kimlin 's case. With greatest respect, we disagree. We are of the view that Kimlin 's case is distinguishable from the present case on the following grounds:
(i) The present case is concerned with application by the liquidator for an acquiring order in respect of movable asset pursuant to s. 233(1) and s. 277(5) of the Act ; whereas, Kimlin 's case is concerned with statutory charge of land under NLC.
ii) In Kimlin 's case, it was an application for leave to sell lands which were subject to the charge, without taking proceedings under NLC to obtain judicial sale. In that case, the Federal court held that Sowman and Others v. David Samuel Trust Ltd. and Another [1978] 1 All ER 616 had no application to charged land under NLC. But the Federal court made no mention that Sowman 's case had no appl
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