Abu Mansor Ali JCA:

My learned brother had, in his grounds of judgment, dealt with the preliminary points raised by the respondent. I had read the judgment and I agree with him. In this grounds of judgment I shall deal with the substantive aspect of the appeal.

Cik Rohaine for the judgment creditor submitted that this appeal originated from the decision of the senior assistant registrar to the judge in chambers. The learned senior assistant registrar refused to strike out the bankruptcy notice of the judgment creditor dated 24 January 1996. The judgment debtor's ground for applying to strike out was because it was alleged that the amount of interest claimed was excessive as it included a sum, in the bankruptcy notice, which was said to be time barred under s. 6(3) of the Limitation Act 1953. As already stated above, the learned judicial commissioner held the bankruptcy notice was invalid. The appellant judgment creditor appealed.

The appellant herein contended that they followed the authority of Re Yamaha (Malaysia) Sdn Bhd [1990] 3 MLJ 317. On the authority of Yamaha, judgment was handed down on 19 May 1978. Interest was claimed up to 19 May 1984 which interest was from date of judgment plus six years. It was held that the claim of interest was properly made.

In our present case the appellant contended that judgment was obtained on 15 October 1987. The appellant in the bankruptcy notice is claiming interest up to 14 October 1993, a period of not later than six years, although the bankruptcy notice was filed much later on 24 January 1996. It might be they have quantified interest up to the filing of the bankruptcy notice, the appellant was actually claiming interest up to only 14 October 1993. The appellant relies substantially on this Yamahacase.

The respondent judgment debtor on the other hand had asked that this appeal be dismissed with costs on the ground that the bankruptcy notice served by the appellant is bad and the respondent had disputed the sum within seven days by filing a summons in chambers therefore.

The respondent referred the court to p. 37 of the appeal record where the appellant, in this case, claimed interest is alleged to be due from 1 April 1986 on a judgment sum of RM95,864.93. The judgment was on 15 October 1987. As stated in the bankruptcy notice the interest claimed is from 1 April 1986, a period of 18 months prior to the judgment up to 24 January 1996, when the bankruptcy notice was filed.

The respondent argued strongly that if the appellant says that the date the interest became was due on 1 April 1986, as claimed by him then the respondent submitted, if at all the appellant is entitled to claim interest it would be clearly six years from 1 April 1986 which falls on 31 March 1992. The respondent emphasised further that if the bankruptcy notice was to be filed interest could only be claimed up to 31 March 1992. Therefore the respondent submitted that since the bankruptcy notice was filed out of time on 24 January 1996 no interest could be claimed at all.

In support of their argument the respondent relied on the case of Malaysian Soil Investigation Holdings Sdn Bhd v. EMKO[1994] 1 CLJ 267where the claim for interest made was within the six years period whereas in the present case under appeal the claim of interest is made after the expiry of six years' period.

After hearing and considering the submissions of both counsels I uphold the substantial submission of the respondent's counsel that the bankruptcy notice in this appeal had as not only having included interest prior to the judgment but also the claim of interest was after the six years period barred by s. 6(3) of the Limitation Act 1953. Section 6(3) of the Limitation Act 1953provides:

Section 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 to of any judgment debt shall be recovered after the expiratio