Siti Norma Yaakob J:

The plaintiff in this suit is a public listed company whose share are traded on the stock exchanges of Malaysia and Singapore.

On 13 February 1988, in civil suit 22-174-86, the defendant had obtained an order from George J which, inter alia, provides that a sale and purchase agreement dated 1 February 1986, entered into between the plaintiff and the defendant be specifically enforced by the plaintiff completing the purchase of 1,108,000 shares of RM1 each fully paid in Seasion Corporation Sdn. Bhd. from the defendant and paying the defendant RM845,970.91, being the purchase price of the shares within 14 days of the date of the order.

The plaintiff failed to complete the sale within the time stipulated and on 1 August 1988, the defendant sent a notice to the plaintiff under s. 218(1)(e) of the Companies Act 1965, (the Act), demanding payment of the sum of RM845,970.91 under the judgment within 21 days, failing which the defendant would proceed to present a winding up petition against the plaintiff.

On 16 August 1988, five days before the expiry of the 21 days stated in the notice, and in an effort to prevent the defendant from presenting a winding up petition against it, the plaintiff filed this originating summons seeking inter alia, a declaratory relief that under the order of Court dated 13 February 1988, the defendant is not a creditor but is only a vendor and as such has no locus standi to present a winding up petition against it.

Before me, Mr. M.S. Murthi, Counsel for the plaintiff, argued that since the threatened petition for winding up is based on the plaintiff's inability to pay its debt, the defendant will be presenting such a petition in its capacity as a creditor, under s. 217(1)(b) of the Act, and since the Act contains no definition of the term"creditor", the only issue raised in this originating summons is who in law can be treated as a creditor, and whether by the order of Court dated 13 February 1988, the defendant can be regarded as one to entitle it to present a winding up petition against the plaintiff.

Text book writers have approached the subject in many ways.

Halsbury Law of England, 4th Edn., Vol. 7(2) lists the following persons as creditors.

1. The assignee of a debt, if the assignment is not made while the creditor's petition is pending.

2. The equitable assignee of part of a debt.

3. The executor of a creditor, even before probate.

4. A creditor in respect of a debt incurred by voluntary liquidation.

5. A secured creditor.

6. A judgment creditor.

7. The holder of a debenture bond of an insolvent company which has not yet matured for payment.

8. Generally any creditor whose debt is not genuinely disputed by the company on substantial grounds.

McPherson J in his book "The Law of Company Liquidation", 3rd Edn. at p. 45 sums up the situation in the following manner.

It is obviously not easy to formulate a test, at once both simple and comprehensive, for determining who is entitled to apply for a winding up in the capacity of creditor. The applicant must be one who has a claim to be paid a sum of money by the company, but that sum need not be liquidated and it need not be presently payable. Nor is it essential that it should be recoverable by action for in Re North Bucks Furniture Depositories Ltd., [1939] Ch D 690, a local authority to which the company was indebted for unpaid rates, was held entitled to present a petition, although payment of its rates could be enforced only by distress and not by action. Conversely, the mere fact that there is some means of enforcing payment by the company is not itself sufficient to transfer the sum payable into a debt. A garnishee order does not as between the company and the garnishor, create a relationship of debtor and creditor as to confer as a right to have the company wound up. See the case of In re Combined Weighing And Advertising Machine Company [1989] 43 Ch D 99.

It would appear that the facts of each case have to be closely