Rigby J:

This is an application by the defendant Lee Kee Pin trading as Hin Chuan & Co, under O. 25 r. 4 of the Rules of the Supreme Court, for an Order that the claim brought against him by the plaintiffs, the Bank of China for the recovery of some $574,000 odd - which I will loosely describe as an overdraft due and owing from the defendant to the Bank - should be dismissed. The application is brought on the ground that the Bank's claim to recover these moneys, some of which it has lent to the defendant and some of which it has paid out on his behalf and on his instructions, is frivolous, vexatious and an abuse of the process of the Court; that it discloses no reasonable cause of action and that it should be dismissed.

The application itself is wholly devoid of an equitable merits and depends for its success solely upon a particular construction of certain provisions of the Banking Ordinance, 1958. That Ordinance came into force with effect from the 26 January 1959. The general purpose and effect of that Ordinance was to provide:

(1)That no banking business should be transacted in the Federation except by a company in possession of a licence in writing from the Minister of Finance authorising it to do so; and

(2)That no licences should be granted to banks, whether local or foreign, which did not possess the necessary requirements with regard to paid up capital as stipulated in s. 4 of the Ordinance.

However, s. 32 of the Ordinance contained certain transitional provisions which empowered the Minister, in the case of local banks not possessing the necessary financial qualification, to issue a licence to carry on banking business up to a maximum period of ten years, and in the case of foreign banks to a maximum period of three months.

As an immediate result of this Ordinance the Bank of China was compelled to close down and to cease banking business within the Federation. On the 30 July 1959, the Bank instituted these proceedings against the defendant to recover the moneys allegedly owing to it.

The practical question for consideration is whether the Bank of China, in attempting to recover the debts due to it, is carrying on business and thereby expressly contravening the provisions of s. 3 of the Banking Ordinance in that it is transacting business without a licence.

Section 5(1) of the Ordinance enacts that:

5.(1)Except with the consent in writing of the Minister -

(a) a person or body of persons, not being a licensed bank, shall not assume or use in relation to the business or any part of the business carried on by that person or body of persons the word 'bank' or any of its derivatives or any word indicating the carrying on of banking business either in Malay or English or in any other language;

The additional point is taken that the plaintiffs, being a licensed Bank, and in the absence of consent in writing of the Minister, by bringing this action under the name and title of "The Bank of China", are assuming in relation to their business the word "bank" in direct contravention of the provisions of s. 5.

It is said that the effect of the Ordinance in so far as the plaintiffs are concerned - the transitional period having elapsed three months after the coming into effect of the Ordinance, namely, on 25 April 1959, - was not to extinguish debts due to the plaintiffs, but only to take away from them the right to sue under the name and title of "The Bank of China". It is said that for this Court to entertain the action would be to disobey the Legislature and to quote the words of Lord Shaw of Dunfermline in the case of Vacher & Sons, Ltd. v. London Society of Compositors [1913] AC 107 at 127 - "would on the part of the judiciary constitute a usurpation". It was suggested that if the plaintiffs had outstanding debts due to them after the transitional period of three months had elapsed then their remedy might well be to apply to the Court, under the Companies Ordinance, for the Bank to be wound up and a receiv