Mahadev Shankar J:

The issue here is whether this Court has the power to allow a petitioning creditor to file a further affidavit verifying the contents of a bankruptcy petition where the first affidavit was affirmed before the petition was actually filed. If so whether such power should be exercised in this case.

The petitioning creditor (Tan) obtained a judgment against Lee Boon Hooi and Lee Boon Ming for RM1,500 general damages and RM14,585 for special damages and RM463.50 costs on 11 January 1989. The defendants were represented by solicitors in that suit but the solicitors absented themselves when judgment was given and again when damages were assessed.

Not a cent was paid. On 21 September 1990 a bankruptcy notice valid till 20 December 1990 was issued by this Court against Lee Boon Hooi (hereafter referred to as the judgment debtor). Three unsuccessful attempts were made in November 1990 to effect personal service on the judgment debtor at his residence in Kedah. So Tan's solicitors applied for and obtained an extension of the validity of the notice for six months from the date of expiry and an order for substituted service. The petition was advertised in theStar on 4 February 1991 and posted on the Court notice Board on 5 February 1991. In accordance with the order the bankruptcy notice was deemed served twelve days later that is 18 February 1991.

By s. 3(1) of the Bankruptcy Act (the Act) the judgment debtor committed an act of bankruptcy when he did not, within seven days after service of the notice, comply with the requirements of the notice or satisfy the Court that he had a cross demand which equalled or exceeded the judgment debt.

Section 5(1)(a) to (d) of the Act sets out four conditions which must be fulfilled before a creditor can present a bankruptcy petition. Every one of these conditions was satisfied, when, on 19 March 1991, Tan's solicitors paid a deposit of RM300 to the Official Assignee and filed this petition. Tan had signed the petition in the presence of his solicitor. In accordance with the practice in this Registry the date of the presentation of the petition and the date of hearing was left blank for the Court to fill in. These dates were 19 March 1991 and 4 September 1991 respectively. Owing to the volume of work here the petition was actually registered only on 2 May 1991 and sealed by this Court. Tan however affirmed the affidavit of truth of the statements in the petition on 18 March 1991, before a Commissioner for Oaths.

The necessity for this affidavit be it noted is not provided for by the Act, but by r. 106 of the Bankruptcy Rules (the Rules) which merely says:

A creditor's petition shall be verified by affidavit.

Nowhere in the Rules is there any specific reference as to when this affidavit has to be affirmed.

Once again an unsuccessful attempt was made to effect personal service and an order of substituted service obtained on 17 September 1991. Copies of the petition were posted on the Court notice Board and advertised in theStar . Service was deemed effected on 25 October 1991. That same day service of the cause papers in the bankruptcy was effected on the Official Assignee.

The matter then came up in Open Court for disposal on 25 March 1992. Be it noted that the judgment debt. still remained unsatisfied. The judgment debtor was not challenging the petition, nor did he appear.

When it was pointed out that the petition had been affirmed before it had been filed, Counsel sought to rectify the matter by asking for leave to file a fresh affidavit verifying the matters alleged in the petition.

Referring to Sobri bin Arshad v. AssociatedTractors Sdn. Bhd.[1991] 2 MLRH 349, [1991] 3 MLJ 32 it was suggested that Counsel's application to file a fresh affidavit verifying the existing petition should be refused and that the only way to remedy the position was to dismiss the Petition with liberty to file afresh.

I adjourned Court to consider the matter further. The opinion of this Court now follows.