JUDGMENT

Sulaiman Daud JCA:

[1] This is an appeal from the decision of the learned judge of the High Court at Shah Alam allowing the respondent creditor's appeal against the order of the deputy registrar in setting aside its creditor's petition. After hearing submissions of counsel from both parties, we dismissed the appeal with costs. We now give our reasons for the decision.

[2] On 1 September 1995 the respondent creditor ("the creditor") obtained a judgment against the appellant debtor ("the debtor") in the Sessions Court for the principal sum of RM33,155.58 together with interest at the rate of 0.067% per day from 5 December 1986 to the date of judgment and 8% per annum from the date of judgment to the date of full settlement, plus late payment charge of RM12 per month to the date of full settlement and costs ("the judgment debt"). The debtor failed to pay the judgment debt or any part thereof.

The Bankruptcy Proceedings

[3] On 12 August 1996, the creditor issued to the debtor a bankruptcy notice claiming the judgment debt for the total sum of RM112,025.01 comprising the outstanding principal sum and interest together with late charge and costs. The bankruptcy notice was personally served on the debtor on 13 August 1996 at his residential address No. 53 Jalan 4M, &ang Jaya 68000, Selangor ("the said address").

[4] Subsequently on 13 November 1996, the creditor filed the creditor's petition alleging failure by the debtor to comply with the requirements of the bankruptcy notice within the time stipulated therein. The petition was made returnable before the Court on 9 October 1997.

[5] When the matter was called for hearing before the deputy registrar on 9 October 1997, the debtor was not ready to proceed and applied for an adjournment to engage counsel. The application was allowed and the proceedings was adjourned to 8 January 1998.

[6] At the adjourned hearing on 8 January 1998, Mr. J.S. Gill, counsel for the debtor, filed a 'notice by the debtor of intention to oppose the petition' ("notice of intention to oppose the petition") setting out three grounds as follows:

(a) First, he complained that the bankruptcy notice and the creditor's petition have not been properly served on him;

(b) Second, he claimed that the calculation of late charge which included the month of August 1996 is incorrect as the bankruptcy notice was only filed on 12 August 1996.

(c) Third, he alleged that the bankruptcy proceedings are irregular.

[7] The deputy registrar, on the application of the debtor's counsel, further adjourned the hearing of the creditor's petition to 12 February 1998.

[8] Prior to the hearing date on 12 February 1998, the debtor had, on 4 December 1998, filed an affidavit denying service of the creditor's petition on him ("the debtor's affidavit"). He averred that at the time of the alleged service he was in Penang and not at home. The debtor also filed a notice of intention to cross-examine the deponent of the affidavit of service which was later withdrawn.

[9] At the hearing on 12 February 1998, the deputy registrar, having considered the creditor's petition, the notice of intention to oppose the petition and the debtor's affidavit, made an order dismissing the petition with costs ("the said order"). The creditor appealed to the judge in chambers against the decision.

[10] Despite the said order, the debtor still proceeded to file an application by way of summons in chambers dated 25 May 1998 praying, inter alia , for the same relief that was earlier granted in the said order.

[11] The creditor's appeal to the judge in chambers was heard on 30 July 2004, whereby the learned judge allowed the appeal and made the receiving and adjudicating orders against the debtor, and hence this appeal.

[12] Based on the grounds raised in the memorandum of appeal and submission of learned counsel for both parties, we are of the view that the present appeal may be disposed of upon the determination of the following issues, namely:

(a) whether the filing of notice