Hj. Abdul Malek bin Hj. Ahmad J:

The petitioner had taken out the petition against the respondent on 15 August 1992 based on the judgment obtained on 22 May 1986 for RM2,284,627.94 together with interest thereon at the rate of 15 per cent per annum calculated from 1 November 1985 to the date of full realisation and costs of RM458. The judgment also specifically states that there will be no stay of execution.

No payment had been made and on 17 September 1990, the petitioner had sent a notice of demand to the respondent under s. 218 of the Companies Act 1965 (hereinafter "the Act") . Despite that notice, the respondent had yet to make payment.

In their affidavit, the petitioner had stated that the respondent also owed the Director-General of Inland Revenue RM1,755,710.02 and Perunding Aziz Sehu Sdn. Bhd. (hereinafter "PAS") RM69,000 and with their paid-up capital of RM1.8 million, it was abundantly clear that the liabilities of the respondent had exceeded their assets. For the judgment on which the petition is based alone, the petitioner had also affirmed that the sum had now become RM4,997,623.61 as at 1 October 1993 due to the accumulated interest. Apart from that, the respondent had charged all their movable properties to two of the opposing creditors namely UMBC Finance Berhad and Visia Finance Berhad (hereinafter "the chargees"). It should be pointed out that two other opposing creditors namely Kam Foong Development Sdn. Bhd. and Incorporated Organisa- tion Sdn. Bhd. were not present at the hearing. In addition, learned Counsel for the petitioner had also asked for costs against the chargees for the earlier adjournment when they had asked for the postponement before that to reply to the affidavits but had withdrawn as opposing creditors just before this hearing.

The petitioner had alleged that the stand of the chargees was in bad faith and was an abuse of the process of Court as they had filed an originating summons No. 24- 49-91 in the High Court at Ipoh after this petition was filed to seek a declaration that the realisation by way of sale, private or otherwise, transfer or assignment of the charged properties after the presentation of this petition was not avoided under s. 223 of the Act , and other consequential orders. They had also filed the notices to appear in this petition. They had then applied to have the originating summons in the Ipoh case adjudicated first whereupon this matter was adjourned sine die. This had caused a considerable amount of delay as the petitioner had only received from the chargees' solicitors a copy of the Ipoh order on 27 July 1993. On 20 August 1993, the chargees had sent to the petitioner a notice of discontinuance in their capacities as opposing creditors. The petition was then fixed for 26 October 1993 but on 21 October 1993 the chargees had again filed their notices of intention to oppose the petition which we know had now again been withdrawn.

In the meantime, the respondent had made proposals to pay but the petitioner's view was that the proposed sum of RM30,000 a month was not acceptable as it could not even cover the interest accrued and which was only equivalent to three monthly payments based on the amount of their 1993 profits as stated in their auditor's report. The petitioner had intimated that they would accept any payment proposals only if the monthly payment was RM200,000 payable over three years.

Learned Counsel for the respondent had in fact wanted to raise preliminary objections at the outset but I had refused to hear them then in view of the Supreme Court decision in Morgan Guaranty Trust Company Of New York V. Lian Seng Properties Sdn. Bhd [1991] 2 BLJ 92 which had ruled that a petitioner should not be prevented from pursuing their petition and that it should not be struck out in limine but should be heard on its merits so that the Court would be able to consider all the evidence and determine whether it should exercise its discretion to order a winding-