Mohamed Dzaiddin bin Hj Abdullah SCJ:

This was an appeal from the decision of Abdul Hamid JC (as he then was) granting the receiving and adjudication orders against the appellant on 27 January 1992. We dismissed the appeal and now give our reasons for the decision.

The facts of the case had been clearly set out in the judgment of the learned Judicial Commissioner reported in [1992] 3 CLJ 1449 . However, for the purpose of the appeal, we would like to state briefly the salient facts. On 27 April 1989, Malayan Banking Bhd. (the respondent) issued a bankruptcy notice against the appellant requiring him to pay the sum of RM2,603,913.28, being the amount due on a final judgment including interests, professional charges and costs. The notice was served on the appellant on 2 May 1989. On 6 May 1989, he filed an affidavit (enclosure 3) purportedly to be an affidavit to set aside bankruptcy notice under Rule 95 of the Bankruptcy Rules 1969 1 (the Rules). About 5 / months later, that is, on 2 2 October 1989, the respondent filed the creditor's petition against the appellant, which was served on him on 29 November 1989 and one month thereafter, on 29 December 1989, the appellant filed another affidavit, described as an "Affidavit in Opposition" (enclosure 15). This was a lengthy affidavit which contained several grounds, including the two grounds which he had deposed in the earlier affidavit (enclosure 3).

After hearing the creditor's petition and the submissions of Counsel on 27 January 1992, the learned Judicial Commissioner was satisfied that the appellant had not shown sufficient cause why the receiving and adjudication orders should not be made. Accordingly, he made the orders in terms.

Before us, Encik Ooi Teik Hoe, Counsel for the appellant, raised several grounds of appeal contending that the learned Judicial Commissioner was wrong in law on his decision. In dismissing the appeal, we hasten to state that we have no reason to disagree with the decision of the learned Judicial Commissioner. However, we would like to elaborate on the effect of the two affidavits (enclosures 3 and 15) vis-a-vis the bankruptcy petition.

In dealing with the two affidavits in enclosures 3 and 15, the learned Judicial Commissioner made the following observations:

Enclosure 3 is an affidavit in which the judgment debtor disputed that he was indebted to the judgment creditor in the sum of RM2,603,913.28 stated in the bankruptcy notice. Enclosure 3 itself gives no particulars. But particulars are given in the 'affidavit in opposition' - encl 15. (p. 549).

Enclosure 15 is an 'affidavit in opposition' and filed one month after the creditor's petition was served on the judgment debtor. By right it should be a notice to show cause pursuant to r. 117. But it also contains attacks on the bankruptcy notice, including grounds raised in encl 3, besides new grounds. It also contains grounds as to why the creditors's petition should be dismissed. (p. 551).

Enclosure 3

This affidavit was filed on 6 May 1989 which reads as follows:

1. I am the Judgment Debtor abovenamed and the facts deposed to hereto are within my personal knowledge in all respects true unless the contrary is shown.

2. I have read and caused to be explained to me the bankruptcy Notice dated 27 April 1989.

3. I deny and further dispute that I am indebted to the judgment creditors in the sum of RM2,603,913.28 as stated therein. In this respect, I state that the figure was based on an erroneous calculation and grossly exaggerated.

4. In the premises, I am accordingly advised by my solicitors and verily believe that the Bankruptcy Notice is bad ab initio and I am therefore not obliged to comply with same. My solicitors will submit on points of law at the hearing.

We would observe here that the above affidavit, pur- portedly an affidavit to set aside bankruptcy notice, fails to follow, both in form and substance, Form No. 7 of the Rules, which contains the requirements of s. 3(1)(i) per