Mohamed Dzaiddin Haji Abdullah FCJ:

[1] This was an appeal from the decision of the High Court Kuala Lumpur given on 6 March 1992 dismissing the creditor's petition filed against the debtor under s 6 of the Bankruptcy Act 1967 (the Act).

Facts

[2] Datuk Ong Kian Seng, the debtor, was indebted to the Development & Commercial Bank Berhad (the bank), the petitioning creditor, under two banking facilities granted by the bank to him for a total amount of RM441,404.96. On 7 April 1988, a final consent judgment was obtained by the bank against the debtor for the aforesaid sum together with interest. The consent order reads as follows:

By consent it is ordered that the plaintiff be at liberty to enter summary judgment against the defendant in the sum of RM441,404.96 together with interest on the sum of RM294,752.87 at the rate of 18% per annum from 1 May 1986 to date of final payment and further interest on RM146,652.09 at the rate of 18% per annum from 1 May 1986 to date of final payment and costs of RM225 and by consent it is ordered that the sum of RM280,000 obtained from the purported sale of the defendant's property held under Geran Mukim No GM 915 Lot No 5026 Mukim of Batu to one Lim Chiew Kee and in the event the sale is not abortive the sum of RM280,000 shall be deducted from the judgment sum and that in the event the purported sale is abortive the plaintiff shall be entitled to recover the total judgment amount due hereinbefore mentioned and by consent it is further ordered that the defendant do pay the plaintiff the balance outstanding judgment sum together with all the accrued interest thereon by equal monthly installments of RM25,000 commencing from 1 May 1988 until full settlement thereof and by consent it is further ordered that in the event the defendant default in any one of the aforesaid instalment payment the plaintiff shall be at liberty to enforce the judgment order herein for the whole outstanding amount then due and owing and by consent it is lastly ordered that the defendant do pay the agreed legal fees of RM5,000.

Dated 7 April 1988.

sgd

Senior Assistant Registrar,

High Court, Kuala Lumpur

[3] After the judgment but before the issue of the bankruptcy notice, certain payment from the proceeds of sale of the debtor's property was credited to his account leaving a balance sum of RM322,642.72. The figures showing how this balance was arrived at are set out in the following "Particulars" in the bankruptcy notice:

[4] Having failed to pay the aforesaid debt, the bank then issued a bankruptcy notice on 14 June 1991 which was served on the debtor on 8 July 1991. The notice required the debtor within 7 days after the service of the notice to pay to the bank the said sum of RM322,642.72 being the amount due on a final judgment obtained for a total amount of RM441,404.96. This was followed by the filing of the creditor's petition on 22 August 1991. On 18 February 1992, the debtor filed an affidavit opposing the petition contending that the bankruptcy notice was invalid on the ground that the interest specified in the said notice as shown in the "Particulars" was wrongly calculated.

[5] At the hearing of the creditor's petition, Counsel for the bank raised a preliminary objection with respect to the debtor's affidavit which was used to oppose the petition. Counsel submitted that the said affidavit was not a proper notice to oppose the creditor's petition under r 117 of the Bankruptcy Rules 1969 (the Rules). The debtor must file a notice in Form 16 with the registrar specifying the statements in the petition which he intends to deny or dispute. The learned Judge overruled the objection and held that the said affidavit was sufficient to give notice to the bank that the debtor intended to oppose the petition on the ground that the bankruptcy notice was bad in law. He also held that the debtor's failure to file a notice under r 117 was only a formal defect which did not cause substantial injustice to the bank. His Lordship follow