Abdul Malek Ahmad FCJ:

On 15 October 1987, the appellant had obtained summary judgment against the respondent for RM95,864.93 on the overdraft account together with interest at fifteen percent per annum thereon with monthly rests from 1 April 1986 until full realisation, and for RM66,051.74 on the overdue trust receipt account together with interest at sixteen percent per annum thereon until full settlement, and RM350 costs. Consequently, as no payments were made, the appellant on 24 January 1996 had filed a bankruptcy notice against the judgment debtor amounting to RM229,563.68 including accrued interest thereon.

For the purposes of this judgment, it is necessary to reproduce the particulars in the bankruptcy notice:

PARTICULARS

(I) Judgment sum RM95,864.93

plus interest on RM95,864.93

at 15% per annum with

monthly rests from 1.4.86

till 24.1.96 (Interest stops RM106,863.04

running after 14.10.93)

Less Payment RM112,000.00

RM 90,727.97

(II) Judgment Sum RM 66,051.74

plus interest thereon at the rate

of 16% per annum on the

sum of RM60,000.00 from

1.4.86 until 24.1.96 (interest RM 72,433.97

stops running after 14.10.93)

(III) Costs RM 350.00

Outstanding sum as at RM229,563.68

24.1.96 ===========

N.B. Full particulars as per Statement of Account enclosed

The respondent had filed a summons in chambers to set aside the bankruptcy notice which was dismissed by the learned senior assistant registrar. However, he was successful in his appeal to the judge in chambers who on 25 June 1996 held that the bankruptcy notice was invalid. The appeal by the appellant to the Court of Appeal filed on 22 July 1996 was heard on 23 and 24 February 1998 and was dismissed with costs almost three years later on 10 February 2001. It is somewhat disturbing to note that the appeal took four years and seven months to be disposed of in the Court of Appeal.

At one glance, it is apparent to us that the learned senior assistant registrar was correct in holding that the bankruptcy notice was valid, and both the High Court and the Court of Appeal were wrong in holding otherwise, as the particulars in the bankruptcy notice specifically limited the interest claimed up to 14 October 1993 which is exactly six years from the date the summary judgment was granted.

On 25 April 2001, this court granted leave to the appellant to appeal on the following question:

What is the proper construction of s. 6(3) of the Limitation Act 1953 (hereinafter "the Act"), in respect of the second limb, that is, "No arrears of interest of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due"?

It is relevant to restate s. 6(3) of the Act at this point:

6(3) An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

The learned High Court judge concluded his judgment in the following manner:

I hold that the claim of interest at the rate of interest as agreed to by the parties commencing from the date of default would be time barred by virtue of subsection 6(3) of Act 254 if claimed 6 years after the date of commencement. The judgment creditor would however be entitled to claim the 8% per annum on the judgment debt commencing from the date of judgment until the date of realisation as this is a mandatory provision. This would be the proper interpretation bearing in mind that, in as much as a judgment creditor who chooses to sit on his judgment must suffer the consequence of the period of limitation working against him, judgment debtors also cannot take their own sweet time to pay the judgment debt. Hence where the action for recovery is taken within the limitation period the judgment creditor would be entitled to the higher agreed rate of interest but if he only takes action to r