Mohd. Azmi SCJ:

On 2 July 1986 the appellant was adjudicated a bankrupt in the High Court at Johor Bahru. He is aggrieved by the decision to issue adjudication and receiving orders, and in the appeal before us, the appellant challenges not only the validity of the bankruptcy notice but also of the service of the notice on him. The main issue for determination is whether a bankruptcy notice for the sum of RM2,325,000 and as well as for unspecified amount of interests and costs is a good notice upon which bankruptcy proceedings may be founded under

Legislation referred to:

Legislation referred to:

Bankruptcy Act 1914 [UK], s. 1(1)(g)

Bankruptcy Act 1967, ss. 3(1)(i), 93(4)

Bankruptcy Rules 1969, rr. 97, 110,131,274

Interpretation Act 1967, s. 62

s. 3(1)(i) Bankruptcy Act 1967.

The appellant (hereinafter referred to as "the debtor") is one of the guarantors (i.e., sureties) in a loan transaction between Tuahbina Sdn. Berhad and the respondent bank (hereinafter referred to as "the creditor"). Arising from the said guarantee the creditor on 21 January 1985 obtained a final judgment against the Debtor vide Johor Bahru High Court civil suit No. 442 of 1984 in the principal sum of RM2,325,000 together with interests and costs. Based on the said judgment the creditor issued a bankruptcy notice dated 30 April 1985 against the debtor which inter alia contained the following demand:

Take notice that within 7 days after service of this notice on you excluding the day of such service, you must pay to Chung Khiaw Bank Limited of Nos. 14, 16, Jalan Dato' Captain Ahmad, Kluang the sum of RM2,325,000 together with interest thereon at the rate of 3% above the Judgment Creditors' base rate of interest per annum with monthly rests in respect of the sum of RM2,100,000 and yearly rests in respect of the sum RM200,000 from 27 February 1983 until payment thereof and costs to be taxed claimed by them as being the amount due on final judgment obtained by them against you in Johore Bharu High Court Civil Suit No. 442 of 1984 dated 21 January 1985 whereon execution has not been stayed, ...

The bankruptcy notice was served on the debtor by substituted service on 2 December 1985; adjudication and receiving orders were granted on 2 July 1986 on a creditor's petition dated 6 January 1986.

The first main argument in this appeal, is based on the mode of substituted service and other alleged defects in the order for substituted service. The debtor was served with the bankruptcy notice by substituted service vide order of Court dated 3 September 1985 after attempts to serve by personal service had failed. The service was to be by posting a copy of the notice together with a copy of the order of substituted service on the notice board of the Court, and by publication of the notice in a Chinese language daily newspaper with national circulation. There was no order for the posting of the notice at the front door of the debtor's last known address. Under r. 110 read with r. 97 of the Bankruptcy Rules 1969, the bankruptcy Court has a wide discretion to order the manner in which the substituted service should be effected. Having considered the evidence, we are of the view that the substituted service had sufficiently complied with Form 15 of the Rules, and since personal service could not be effected, it was not a wrong exercise of discretion for the Court electing not to include in the order, posting of the notice at the last known address of the debtor. The case of Teo Ah Bin v.Tan Kheng Guan [1981] 2 MLJ 146 relied upon by the debtor has no application in this case. That authority concerns the power of the High Court to set aside an O. 14A judgment under the Rules of the Supreme Court 1957. The writ in that case was served by substituted service outside the jurisdiction and the Federal Court upheld the decision of the Court below in setting aside the summary judgment on the ground that the judgment was for a larger sum than what the plaintiff had claimed