No requirement for a 'sealed' copy of a petition for winding up under the Companies (Winding Up) Rules; valid service of statutory notice affirmed by unrefuted affidavit.

RULING

Proceeding:

This is a petition for winding up of the Respondent but at the outset of the hearing the Respondent raised three objections which are as follows:

1. Non compliance of Rule 26 of the Companies (Winding Up) Rules 1972 ,

2. Non compliance of Rule 32(1) (b) & (c) of the Companies (Winding Up) Rules, 1972 and

3. Non compliance of sec 218(2) (a) of the Companies Act 1965 in so far as service of notice is concerned.

Objection 1:

Rule 26 states as follows:

Every petition for the winding up of a company by the Court shall be verified by an affidavit referring thereto. The affidavit in Form 7 shall be made by the Petitioner or by one of the petitioners, if more than one, or, in case the petition is presented by a corporation, by some director, secretary or other principal officer thereof, and shall be sworn after and filed within four days after the petition is presented, and the affidavit shall be prima facie evidence of the statement in the petition.

If I understand the counsel for the Respondent correctly, he is contending that the petition attached as exhibit A in enclosure 4 - affidavit verifying petition - is not a sealed copy as required by Rule 26 and hence this non compliance renders the petition null and void. The issue which confronts me now is whether Rule 26 requires a 'sealed' copy of the petition to be attached to the affidavit verifying petition? With respect to counsel for the Respondent, I cannot sustain the contention as the word 'sealed' does not appear in the rule. If the legislature wants a sealed petition to be attached to the affidavit verifying petition, they would have put the word 'sealed' in the rule. There is no dispute that the copy of the petition is the same as the sealed copy of the petition, hence there is no way that the Respondent had or could have been misled as what it is faced with in the petition. Neither is there any doubt that the affidavit verifying petition was sworn after the petition was filed and filed within the four days.

2^nd Objection:

Rule 32(1) (b) & (c) of the Companies (Winding Up) Rules, 1972 states as follows:

Rule 32(1) After a petition has been presented, the petitioner or his solicitor shall on a day to be appointed by the Registrar attend before the Registrar and satisfy him that:-

(b) The prescribed affidavit verifying the statements therein and the affidavit of service, if any, have been filed;

(c) The consent in writing of the approved liquidator nominated by the petitioner has been obtained and filed;

In view of my conclusion on Rule 26 , non compliance of Rule 32(1) (b) had been complied. As for submission rule (c), as pointed by counsel for the petitioner, the said rule does not apply as there is no appointment of an approved liquidator.

Objection 3:

This objection concerns the contention that the sec 218(2)(a) of the Companies Act was not served properly as prescribed in that the statutory notice was not served by leaving at the registered office of the Respondent. Counsel for the Respondent relies on the cross out endorsement of the words 'Y C Management Services Sdn Bhd' on the statutory notice and the fact that Y C Management Services Sdn Bhd is not an officer, director, secretary of the Respondent to support his contention.

With respect I again find the contention to be without merit. The affidavit of service of the process server specifically states that he had left a copy of the petition at the registered office of the Respondent and that has not been specifically rebutted by the Respondent.

Accordingly I granted an OIT as prayed for in the petition - enclosure 2.

(DAVID WONG DAK WAH)

Judge