Abdul Aziz Mohamad JCA:

We had before us on 15 July 2002 two appeals from the High Court in Shah Alam, brought by the appellants, United Overseas Bank (Malaysia) Berhad, who had had bankruptcy notices issued against the respective respondents. The appeals arose out of the setting aside of the bankruptcy notices by the deputy registrar on the separate applications of the respondents, which were heard together by the deputy registrar, and the subsequent dismissal of the appellants' appeals to the judge in chambers, which came up before different judges. In the High Court, the parties in one of those appeals, that is the parties in appeal No. B-03-27-1999 before us, where the respondent was Khoo Hock Chum, had agreed to be bound by the decision in the other appeal, which resulted in appeal No. B-03-22-1999 before us, where the respondent was Loke Lai Ying. The two appeals before us were therefore conducted on the basis that submission would only be made on appeal No. 22 and that the decision in that appeal would apply to appeal No. 27. The facts and considerations that follow are therefore those in or for appeal No. 22.

The facts were these. On 9 January 1991 Lee Wah Bank Limited obtained a single judgment against the respondent Loke Lai Ying (and also against Khoo Hock Chum the respondent in appeal No. 27) for two sums, RM152,246.69 and RM460,496.39, with interest and costs. On 12 July 1994, by a vesting order under s. 50(1) of the Banking and Financial Institutions Act 1989, the assets, rights and remedies of Lee Wah Bank Limited vested in United Overseas Bank (Malaysia) Berhad, the appellants.

On 30 September 1995 the appellants, in Bankruptcy No. 29-2618-1995, had a bankruptcy notice issued against the respondent demanding payment of the amount due on the judgment of 9 January 1991, which they were entitled to claim by virtue of the vesting order. The bankruptcy notice, however, was never served on the respondent because the appellants realized that the computation in the notice was not in accordance with the judgment. The notice lapsed three months later, on 30 December 1995, because according to r. 96 of the Bankruptcy Rules 1969it had to be, but was not, served within the three months. But on 15 April 1996, in Bankruptcy No. 29-1013-1996, the appellants filed another bankruptcy notice claiming the sum of RM194,245.81 as being due on the judgment obtained by Lee Wah Bank Limited on 9 January 1991. The judgment notice stated the fact that all assets, rights and remedies of Lee Wah Bank Limited had vested in the appellants by virtue of the vesting order of 12 July 1994. The bankruptcy notice was served on the respondent on 11 July 1996 but a copy of the vesting order was not served with it. The respondent responded by filing an affidavit dated 18 July 1996 in which she prayed that the bankruptcy notice be set aside. The deputy registrar, by virtue of r. 95(1) of the Bankruptcy Rules 1969, treated the affidavit as operating as an application to set aside the bankruptcy notice, heard the application, and set aside the bankruptcy notice.

The appellants' main ground of appeal in their appeal to this court, as also in their appeal to the judge in chambers, was that the respondent's application for the setting aside of the bankruptcy notice, made as it was through the vehicle of that affidavit, was invalid as the form and manner of it was not permitted by the rules. For an affidavit to operate by virtue of r. 95(1) as an application to set aside a bankruptcy notice, it must be an affidavit that is mentioned in r. 94(1)(b), that is to say, an affidavit to the effect that the judgment debtor has a counterclaim, set off or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained, and the affidavit must be in Form 7 in the Appendix to the Rules, which Form bears the heading "AFFIDAVIT ON AN APPLICATION TO SET ASIDE BANKRUPTCY NOTICE". B