Edgar Joseph Jr J:

In these bankruptcy proceedings the creditor's petition was dated 10 November 1989, but the affidavit verifying the creditor's petition was affirmed to on 9 November 1989 (the affidavit) that is to say, one day before the date of the creditor's petition. The Bankruptcy Act 1967, by s. 6 and the Bankruptcy Rules 1969, by r. 106 require that the creditor's petition must be verified by an affidavit as to the truth of the contents thereof. Counsel for the judgment debtor has therefore sought to impugn the bankruptcy petition on this ground.

It would appear that the validity of the creditor's petition depends on there being filed in Court an affidavit verifying the truth of the allegations therein. So, for example, the case of Anon [1861] 5 LT 527 is authority for the proposition that every petition for adjudication of bankruptcy must be accompanied with an affidavit verifying the allegations therein or it would not be received.

Furthermore, the Procedural Tables No. 6 of Atkin's Court Forms on Bankruptcy and Insolvency (2nd Edn., Vol. 7, 1988 Issue) Step No. 7 pp. 119, 120 reinforce that view.

There are also general considerations which supported the contention of Counsel for the judgment debtor.

It is trite law that an affidavit must be made in some cause or matter pending in Court. An affidavit cannot support an "unborn petition" as a petition comes to life only when presented. In Western Benefit Building Society [1864] 33 Beav. 368; 55 ER 409, Sir John Romly MR decided that an affidavit sworn before the presentation of the petition "amounts to nothing". That case was followed in the local case of Chin Yoon Timber Co. V. Overseas Lumber Bhd. where Syed Othman J (as he then was) struck out a winding-up petition because the affidavit was sworn before the presentation of the petition.

I therefore agree with submissions of the Counsel for the judgment debtor that the flaw in the proceedings hereinbefore mentioned vitiates the creditor's petition and cannot be cured by the discretionary powers of the Court conferred by s. 133 of the Bankruptcy Act. Nor, for that matter, is it open to me to extend the time for filing as there is no valid petition before the Court? As was well put in the case of Chin Yoon Timber Company (ibid)

The question of extension or abridgment to which this rule relates, does not arise. The affidavit cannot therefore be said to relate to any proceedings. Extending what the Master of the Rolls said in the Re Western Benefit Building Society you cannot verify to an unborn petition; a petition comes to life only when presented

Lest I be accused of an oversight, I should perhaps refer to the case of Sari Atlantic Sdn. Bhd. v. Aik Kim Enterprise [1988] 1 MLJ 201, a company winding-up case, which was cited for the proposition that a defect in an affidavit such as in the present case is curable by the Court by allowing an extension of time to re-file the affidavit.

It would appear that the judgment in Chin Yoon Timber Company (ibid) was not cited to or by the Court in the Sari Atlantic case (ibid). With respect, therefore, the judgment in the latter case would appear to have been given per incuriam.

Moreover, even if I should follow Sari Atlantic case, the application by Counsel for the judgment creditor made orally in open Court to re-file the affidavit was not supported by any explanation as to how the flaw in the proceedings arose. No special circumstances and/or good cause has been shown for extension of time as required under r. 275 of the Bankruptcy Rules.

Under the circumstances, even if it were open to me to grant an extension of time, I am not prepared to do so in view of the fact that there is no material before me to exercise my discretion to enable the judgment creditor to re-file an affidavit.

In any event, more than eleven months have lapsed since the alleged act of bankruptcy. Any affidavit verifying the petition to be re-sworn and refiled must be re-filed within six months fr