Abu Mansor Ali J:

The appellant/petitioner appeals against the order made by this Court striking out the appellant/petitioner's petition for the winding up of the respondent company on the ground that the Court did not have jurisdiction to entertain the petition or alternatively even if the Court had that jurisdiction, it held the forum convenience was elsewhere. The appeal raises the short question whether the petition should really be filed in High Court Borneo.

The facts of the case are as follows. In the petition itself the petitioner states that the respondent company was incorporated on 1 September 1982. The registered office of the company is at 1st Floor, Hockien Association Building, Lot 98-99, Green Hill Road, Kuching, Sarawak.

The petitioner alleged that the respondent is indebted to the petitioner in the sum of RM107,357.66 for the price of goods sold and delivered. On 5 September 1988 the petitioner served on the company the statutory notice dated 23 August 1988 pursuant to s. 218 of the Companies Act 1965 by leaving it at the Company's registered office but no payment was received since the service of that notice. Hence the petitioner filed the petition to wind up.

The respondent's application was supported by the affidavit of Chua Beng Thian, its managing director who deposed that the transaction between petitioner and respondent (if any) was done in Kuching. In any case, he denied that the respondent was indebted to the petitioner and he further said that the respondent's witnesses are residing in Kuching.

Mr. Lee for the respondent submitted that the issue before the Court was whether this Court had jurisdiction to entertain the petition or whether the forum convenience was Sarawak since the respondent is residing in Sarawak by having its registered office in Sarawak. He submitted that the petition is outside the jurisdiction of the Court to entertain.

Mr. Lee submitted further that the powers of the Malaysian Judiciary are set out in Art. 121(1) of the Federal Constitution. It is in two High Courts - Malaya and Borneo. Under s. 3 of the Courts of Judicature Act 1964 the local jurisdiction of the Courts in Malaya are the Malay States and the Straits Settlement and the local jurisdiction of the High Court Borneo is Sabah and Sarawak. He contended that since the registered office of the respondent company is in Kuching, this Court therefore has no jurisdiction in this matter for s. 23(1)(b) of the Courts of Judicature Act 1964 provides that the High Court will take cognizance of or try matters where the defendant or one of several defendants resides or has his place of business.

He submitted therefore that since the respondent is resident in Kuching, the Kuching High Court must assume jurisdiction. Alternatively considered from the point of view of forum convenience, the respondent is residing in Kuching and the witnesses are in Kuching and that the transaction was in Kuching, he submitted that it is still in Kuching. Counsel cited the case of Sova Sdn. Bhd. v. Kasih Sayang Realty Sdn. Bhd. [1988] 1 MLJ 270, 271 where my brother Judge, Lim Beng Choon held that it must have been within the contemplation of the legislature to distribute work according to the various High Courts for the convenience of all concerned. With respect I agree with that decision.

For the petitioner, Mr. Ong Ban Chai says this Court has jurisdiction for the Courts of Judicature Act 1964 has provided two High Courts and the matter can be filed and heard in either Sarawak or Malaya, the Court has the discretion to decide. He submitted further that if the Court decides that it has jurisdiction then it should be transferred to Kuala Lumpur.

I find Mr. Lee's argument to have some merits. I agree with Mr. Lee that which High Court has jurisdiction is clearly determined by s. 23 of the Courts of Judicature Act 1964 which reads:

23 (1) Subject to the limitations contained in Art. 128 of the Constitution the High Court shall have jurisdic