Zakaria Yatim J:

This is an application by a company, Perusahaan Jenwatt Sdn. Bhd. (hereinafter referred to as the company) seeking the order of the Court that the winding-up petition filed by the petitioning creditor on 15 February 1988 be set aside. The company also asks that the costs of and incidental to these proceedings be paid by the petitioning creditor in any event.

In the affidavit in support of the application, the managing director of the company averred, inter alia that in para. 6 of the petition, the petitioning creditor stated that the indebtness of the company was in the sum of RM29,548.46. He then referred to the notice of demand, dated 16 June 1987 sent by the petitioning creditor under s. 218 of the Companies Act 1965 . In the notice a demand was made by the petitioning creditor for a sum of RM295,584.46. According to the deponent, the notice was invalid as the company did not owe the petitioning creditor the amount stated in the notice.

I shall now examine the petition itself. In para. 5 of the petition it is stated that the company was indebted to the petitioning creditor in the sum of RM29,584.46. In para. 6 of the petition the petitioning creditor states that it has made application to the company for the payment of its debt by serving a notice of demand dated 16 June 1987 pursuant to s. 218(2)(a) of the Companies Act by leaving a copy of the said notice at the registered office of the company. According to the petitioning creditor, no payment had been received after service of the said notice. A copy of the said notice is annexed to the petition and marked DTCI. The said notice is reproduced below:

Jabatan Hasil Dalam Negeri,

Cawangan Pungutan,

(Tingkat 7-12),

Blok 11, Komplek Bangunan Kerajaan,

Jalan Duta,

50600 Kuala Lumpur.

Telefon: K.L.2540066 & 2547055.

Ruj. Kami: X/C 884026 - 01 dlm. PJA.

Saya, Teo Tee Cheam Penolong Pengarah Kanan, Hasil Dalam Negeri, Komplek Bangunan Kerajaan, Jalan Duta, 50600 Kuala Lumpur, dengan ini menuntut bayaran sepertimana yang diperuntukkan dalam s. 218(2)(a) Akta Syarikat 1965, dalam tempuh TIGA (3) minggu dari tarikh penyerahan Notice Tuntutan ini bagi jumlah dalam Hukuman Guaman Sibil No. P859/1985.

Jumlah Tuntutan dalam Hukuman $295,584.46

Bertarikh 16 June 1987.

t.t.

(Teo Tee Cheam)

Penolong Pengarah Kanan, Hasil Dalam Negeri,

Kompleks Bangunan Kerajaan, Jalan Duta,

50600 Kuala Lumpur.

Kepada:

Perusahaan Jenwatt Sdn. Bhd.

MY Business Consultants Sdn. Bhd.,

33B, 2nd Floor, (Front), Wisma CL Yap,

Jalan Tengku Kelana, Kelang.

Paragraph 7 of the petition states that the company is unable to pay its debt and in the circumstances it is just and equitable that the company be wound-up.

It is clear that the notice of demand relied upon by the petitioning creditor in the petition is the notice reproduced above and as pointed by Mr. Pathmanathan, Counsel for the company, the amount stated in the notice far exceeded the amount stated in the petition.

It appears that the petitioning creditor filed the petition on the basis of a judgment debt. The judgment which was obtained in default of appearance was in the sum of RM25,987.50 plus interest at the rate of 8% per annum from the date of judgment to the date of realization and costs of RM225.

The petitioning creditor in its affidavit affirmed on 23 May 1988 averred that the correct amount claimed by the petitioning creditor based on the judgment debt was RM29,584.64 and not RM295,584.46 as claimed by the company. According to the petitioning creditor the original notice was served on the company on 16 June 1987. Exhibited to the said affidavit is a copy of the notice stating the amount of RM29,584.46. According to the deponent the original notice was sent to the company.

In considering the present application the Court has to consider the petition and the notice annexed to it. It is clear that the amount stated in the notice far exceeds the amount due as stated in para. 5 of the petition. The question that arises here i