Arifin Jaka J:

[1] This application by way of notice of motion (encl 17) is made by Mawar Biru Sdn Bhd (the company) for an order that:

(a) All further proceedings in the winding up of the company be stayed absolutely. Alternatively

(b) All proceedings in relation to the winding up of the company be stayed on such terms and conditions as this Honourable Court thinks fit.

[2] The company was incorporated on 9 November 1984 as a limited company under the Companies Act 1965 with its registered office at S2-36 & S2-37 Wisma Abad, Century Garden, Johor Bahru. The paid up capital of the company is RM325,004 as against the authorised capital of RM2,000,000 divided into 2,000,000 shares of RM1 each.

[3] The main objects for which the company was established are as follows:

(a) To carry on the business of an investment company and for that purpose to acquire and hold either in the name of the company or in that of any nominee shares, stock, debentures, notes, bonds or securities by original subscription, purchase, exchange and to subscribe for the same subject to such terms and conditions (if any) as may be thought fit. Provided always that no surplus arising upon any such sale shall be available for distribution through the profit and loss account.

(b) To buy, take on lease, or otherwise acquire any real and personal property, lands, buildings, houses, apartments, condominium, flats, rights and assessments of every kind which the company may think necessary or convenient for the purposes of its business and to issue and allot fully or partly paid shares in the capital of the company in payment or part payment of any real or personal property purchased or otherwise acquired by the company or any services rendered to the company.

[4] Provided always that no surplus arising upon any such sale shall be available for distribution through the profit and loss account and other objects set forth in the memorandum of association thereof.

[5] On 21 July 1993 a petition for winding up the company was filed by Ting Yuk Kiong (the petitioner) who was a creditor of the company. In para 5 of the petition it is alleged that the company is indebted to the petitioner in the sum of RM36,057.21 being the taxed costs awarded to the petitioner in respect of Originating Summons No: 24-677 of 1989 in the High Court of Malaya at Johor Bahru and Appeal No: 03-73 of 1990 in the Supreme Court in Kuala Lumpur.

[6] The statutory notice of demand pursuant to s 218(2)(a) of the Companies Act 1965 was served on 3 June 1993 by leaving it at the registered office of the company. The said notice of demand required the company to pay to the petitioners solicitors the said sum of RM36,057.21 within twenty one (21) days from the service of the notice on the company failing which it would be deemed to be unable to pay its debts and appropriate action would be taken for winding it up. The company has neglected and failed to pay the debt after a lapse of the specified period of 21 days. The petitioner filed the petition for winding up the company on the ground that it is unable to pay its debts. The petition was duly served on the company on 16 August 1993, on the Official Receiver on 10 August and on the Registrar of Companies on 12 August 1993.

[7] The petition was heard on 22 February 1994 when it was ordered by the Court:

(i) that the company be wound up by the Court under the provisions of the Companies Act 1965;

(ii) that the Official Receiver Malaysia be appointed as Provisional Liquidator of the company; and

(iii) that the petitioner be allowed the costs of and incidental to the winding up which is to be taxed by the proper officer of the Court and paid by the Liquidator out of the assets of the company.

[8] At the hearing of the petition the company was not represented by any Counsel although the petition was duly served on it.

[9] Some four months later ie, on 21 June 1994 the present application for stay of all further proceedings in relation to the winding up of the compa