The plaintiff company, under liquidation, sued the 3 defendants on a loan. The plaintiff company is a limited company. The plaintiff in the summons in the Sessions Court is cited as follows-

"Kosmopolitan Credit & Leasing - Plaintiff

Sdn Bhd

(Dalam Pembekuan)

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(Penerima dan Pengurus dilantik)"

The title shows that the plaintiff is being wound up and that a Receiver and Manager (or Receivers and Managers) had been appointed to commence this summons.

The summons was filed on 2.3.92 and the 3 defendants filed an application to strike out the summons. The ground relied on is that an order for the winding up of the plaintiff had been made on 16.5.91 and that a liquidator had been appointed. This was raised in the defences of the 3 defendants and the affidavit by one of them. The affidavit referred to a letter by the previous firm of solicitors of the plaintiff stating that the solicitors were acting on the instruction of the Receivers and Managers and that the Receivers and Managers "have derived their authority to initiate the above proceeding from the liquidator."

In his affidavit in reply Ler Cheng Chye stated he and Lum Tuck Cheong were appointed to claim the debts of the plaintiff before the winding up as Receivers and Managers and that after the winding

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up they were given the power by the liquidator to continue with the claims against the debtors of the company.

Since there Were no grounds of decision given by the Sessions Court Judge as this is an appeal from an interlocutory decision it is not clear on what ground the Judge of the Sessions Court made his decision to strike out the summons.

And I have to look afresh on the issues raised and they are basically two of them -

(1) whether the purported Receivers and Managers had any power in law to commence this action after liquidation had been ordered in respect of the plaintiff;

and

(2) whether the liquidator had power to appoint Ler Cheng Chye and Lum Tuck Cheong who prior to the liquidation of the company were Receivers and Managers collecting the debts of the company, to be Receivers and Managers of the company.

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As regards the first question the answer is provided by the Federal Court case of Kimlin Housing Development Sdn Bhd v. Bank Bumiputra Malaysia Sdn Bhd & Ors[1977] 3 CLJ 274 at 302 in relation to s 300 (1) of the Companies Act 1965 contrasting it with the position obtaining in United Kingdom. First, Edgar Joseph Jr FCJ delivering the judgment of the Court stated the position in United Kingdom citing,

"In the United Kingdom because a receiver has all or substantially all the assets of the company under his control by reason of the security created by the debenture and retains the power to manage and to release those assets, a liquidator is obliged to stand on the sidelines in the course of receivership."

Edgar Joseph Jr FCJ cited as an example the case of Sowman v. David Samuel Trust Ltd[1978] 1 All ER 616 -

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"In Sowman v. David Samuel Trust Ltd(ibid), the Land Office had refused to register conveyances of property executed by the receiver alone after the company had gone into liquidation. Gouldring J held that a power of attorney conferring upon receivers power to do various acts and, in particular, to execute conveyances in the name of the company survived the winding up. His Lordship went further and indicated (at p. 31) that the power of attorney ploy may be otiose because the receiver's general powers of realisation also survive the winding up, even though he loses his right to act as the company's agent in such a situation. In other words, his powers of realisation exist independently of his authority to bind the company as its agent."

Edgar Joseph Jr FCJ then dealt with the Malaysian position,

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"The position in this country is different. Because a receiver and manager of any part of the undertakings of the corporation appointed under a power contained in any instrument is by definition(see s. 4(l)(b) of the Act) an officer of the cor