Low Hop Bing J:

Petition

This is a petition in encl. (2) presented by the petitioner for an order that the respondent be wound up on the ground of its inability to pay its debts under s. 218 of the Companies Act 1965; that the official assignee be appointed as the respondent's provisional liquidator and that costs be paid out of the respondent's assets.

For ease of reference, all sections quoted herein are the sections in the Companies Act 1965, and the Rules refer to the Companies (Winding-Up) Rules 1972unless the context otherwise requires.

Service Of Statutory Demand

In opposing the petition, the first and foremost ground raised by Cik Sheena M. Sinnappah, learned counsel for the respondent, is that the petitioner has failed to serve the statutory demand on the respondent and hence the statutory demand is ineffective in law. She added that as the statutory demand was merely sent by registered post to the respondent's registered office, the petitioner has not strictly complied with the provisions of s. 218(2)(a) which she said required it to be "served on the company by leaving at the registered office". For this contention, she relied on United Malayan Banking Corporation Bhd v. Richland Trade and Development Sdn Bhd[2000] 1 CLJ 57FC; Masboh Trading Sdn Bhd v. Mejaris Builders Sdn Bhd[2001] 5 CLJ 585HC; Sri Hartamas Development Sdn Bhd v. MBf Finance Bhd [1992] 1 CLJ 637; [1992] 1 CLJ (Rep) 303SC; Muniandy a/l Thamba Kaundan & Anor v. D & C Bank Bhd & Anor[1996] 2 CLJ 586FC.

It was then argued for the respondent that r. 18 which provides for the mode of service cannot apply here in view of the opening words contained therein viz. "Except as otherwise provided by the Act or these Rules or any order".

En. Bosco Philip Anthony, assisted by En. Colin Victor George, learned counsel for the petitioner, contended that s. 218(2)(a) must be read with r. 18 and that the statutory demand has been served on the respondent through its lawfully authorized agent ie, the postal authority, relying on Dynasty Rangers Sdn Bhd & Anor v. Perak Meat Industries Sdn Bhd[2002] 6 CLJ 1.

Having regard to the aforesaid submissions, I am of the view that the issue in relation to the statutory demand is whether the petitioner by sending it by way of registered post to the respondent's registered office has complied with the provisions of s. 218(2)(a).

At this stage, I will first consider the case of Dynasty Rangers, supra, relied upon by the petitioner herein. The petitioner there had applied to wind up the respondent company on the ground that it was unable to pay its debt which arose from an arbitration award against two joint respondents. One respondent opposed the petition solely on account of what the respondent perceived to be an irregularity in that the arbitration award was against two joint respondents and that it was not open to the petitioner to proceed with only one respondent. Kang Hwee Gee J, held inter alia, that there was nothing irregular in the statutory notice. His Lordship's well-researched judgment did not support the contention of the petitioner herein which concerned the question as to whether sending the statutory demand amounted to serving it on the respondent.

The next point revolves around the petitioner's submission that the statutory demand has been served through the postal authority as the lawfully authorized agent. In my view, and with the utmost respect, to uphold this submission would do violence to s. 218(2)(a) especially the words viz."a demand under his hand or under the hand of his agent thereunto lawfully authorized". These operative words, I hasten to add, clearly refer to the signature of the person issuing the demand. In other words, the statutory demand has to be signed by the company or its lawfully authorized agent such as, in the instant case, an advocate and solicitor, and cannot by any stretch of imagination, be construed to refer to the service of the statutory demand.

Next, r. 18 relied on by th