JUDGMENT

The bankruptcy notice was served on the JUDGMENT debtor on 19 August 1995.

On 25 August 1995 the judgment debtor filed an affidavit in opposition to the bankruptcy notice. The relevant parts of the affidavit in opposition reads as follows: -

"2. I oppose the said creditor's notice filed against me and I dispute the debt stated therein since the amount claimed for RM11,478.86 is incorrect.

3. This is because I have paid for a total amount of RM7,044.00 which were made up of eleven (11) instalments made in the year 1988 and 1989. That was after the judgment date (21/05/1987).

4. The total amount owed by me being less than RM10,000.00, the notice fails to comply with section 5(1)(a) of Bankruptcy Act 1967."

An affidavit in reply to the affidavit in opposition was affirmed by Simon Tan Soo Mong on 20 November 1995 on behalf of the judgment creditor. The relevant parts of the affidavit in reply reads as follows: [2]

"2. The Debtor, Lau Puong Ong (K138246) is and at the commencement of this action truly and justly indebted to the abovenamed Creditor in the sum of RM11,478.86 being total amount of Judgment debt inclusive of interest calculated at the rate of 8% per annum from the date of Judgment to 15th May 1995 and cost of RM175.00. The particulars of the said claim appeared in the Appendix A of the Bankruptcy Notice No. 29-62 of 1995 dated 15th May 1995.

3. I crave leave to refer to the Affidavit in opposition dated 25th August 1995 filed therein by the Debtor (hereinafter referred to as the said Affidavit).

4. As to the paragraphs 3 and 4 of the said Affidavit, I crave leave to confirm that the Creditor has received from the Debtor a total amount of RM7,044.00, details of which are stated as follows: Payments Receipt Nos. Date RM 50.00 C 589426 3. 8.88 50.00 C 589427 3. 8.88 800.00 C 593020 10. 8.88 500.00 C 604759 9. 9.88 1,000.00 C 609216 21. 9.88 1,072.00 E 004806 21. 3.89 1,072.00 E 004852 21. 3.89 1,000.00 E 004933 22. 3.89 250.00 E 015164 17. 4.89 250.00 E 094728 20.11.89 200.00 E 110475 29.12.89 300.00 J 155996 2. 3.92 500.00 K 391954 10.12.92 Total: 7,044.00

5. Three civil suits have also been instituted against the Debtor for the recovery of earlier years' outstanding tax and relevant Judgment were also obtained, details of which are appended as below: Date of Judgment Summons Summons Summons Obtained No. 23/82 No. 116/83 No. 41/84 13.3.82 6.8.83 3.4.86 RM RM RM Judgment Sum570.36 2,373.95 2,875.95 Interest @ 8% per annum calculated from date of Judgment to date of realisation374.86 810.83 630.75 Cost25.00 - 75.00 Total:970.22 3,184.78 3,581.70

[3]

Photostate copies of the Judgment related to the abovementioned civil suits are annexed hereto and marked as Exhibits "ST-1", "ST-2" and "ST-3".

6. In fact, the total payments of RM7,044.00 as stated in paragraph (4) above has been fully utilized to off-set the total Judgment sums, interests and costs of the abovementioned three civil suits and still leaving a balance of RM692.70 (RM7,736.70-7,044.00) unpaid by the Debtor to-date."

The learned counsel for the judgment creditor submitted that the judgment debtor's application has no substance and wrong in law the reason being the affidavit in opposition had failed to disclose that the judgment debtor has a counterclaim, set off or cross demand. In support the case of Datuk Lim Kheng Kim v. Malayan Banking Berhad (1993) 2 M.L.J. 298 was cited.

The judgment debtor submitted that he was issued with a bankruptcy notice No. 21/88 and the creditor's petition was heard. He was not adjudged a bankrupt because he paid the amount of RM7,044.00. And that case [4] is the same as the present case. The amount owing now should be a thousand ringgit plus.

In reply the learned counsel for the judgment creditor submitted that the amount of RM7,044.00 paid has been utilised to off-set other judgment sums prior to this judgment as stated in the affidavit in reply of Simon Tan.

In respect of