JUDGMENT

Ramly Ali J:

[1] These grounds of judgment are in respect of the petitioner's petition to wind up the respondent company (encl. 1); the respondent's application to strike out the petitioner's petition (encl. 8); and the issue on the petitioner's preliminary objection relating to the respondent's application to strike out the petition.

[2] The petitioner has presented a petition to wind up the respondent company for a debt sum of RM19,894.36 only, which the petitioner claims is a debt due to the petitioner from the respondent.

[3] The respondent denies the debt and submits that there is no debt due and payable. Further, to show the court and the petitioner that the respondent is not insolvent, the respondent has secured a sum of RM20,000 and placed the said sum with the respondent solicitors to prove that the respondent is solvent and is capable of satisfying any debt that becomes due and payable at any time.

[4] The respondent has in order to oppose this petition filed a motion to strike out the petition.

[5] For the purpose of these grounds of judgment, the court shall deal with the petitioner's preliminary objection first.

Petitioner's Preliminary Objection

[6] The petitioner has raised preliminary objection for non-compliance of r. 28(1) of the Companies (Winding-up) Rules 1972 - for failure by the respondent to file a notice of intention to appear to oppose the petition. The petitioner contends that the filing of such notice, in Form 8 by the respondent is mandatory, and by virtue of the respondent's failure to adhere to the mandatory provisions, the petitioner prays that the respondent's opposition to the petition be stuck out in limine.

[7] The petitioner is suggesting that every respondent has to file a notice of intention to appear in a winding up court eventhough the respondent itself has been summoned to appear and defend the winding up petition.

[8]Rule 28(1) of the Companies (Winding up) Rules 1972 reads:

Every person who intends to appear on the hearing of a petition shall serve on the petitioner or his solicitor notice of his intention. The notice shall be signed by the person or by his solicitor and shall give the address of the person signing it and shall be served or if sent by post shall be posted in such time as in ordinary course of post to reach the address not later than 12.00 o'clock noon of the day previous to the day appointed for the hearing of the petition. (2) The notice may be in form 8 with such variation as circumstances may require. (3) a person who has failed to comply with this rule shall not, without special leave of the court, be allowed to appear on the hearing of the petition.

[9] Firstly, r. 28(1) does not refer to the respondent. If the intention of the rule is to include the respondent of a petition, it would have made it very clear that the respondent itself would have to file the notice of intention to appear. Rule 28(1) , refers to "every person who intends to appear." It is clear that the respondent by the service of the petition is a party to the petition and he needs not give notice of his intention to appear. The respondent is already a party to the winding up petition. It appears as the respondent. The respondent's notice is made when they file the affidavit in opposition seven days before the petition is to be heard.

[10] The intention of r. 28(1) can be clearly seen in the Form 8 as referred to by r. 28(2) . Form 8 reads:

Take notice that A.B., of (a) creditor for $ ... of (or contributory holding (b) ... shares in) the above company intend to appear on the hearing of the petition advertised to be heard on the ... day of ... 2000, and to support (or oppose) such petition.

[11] From the said Form 8 , it is clear that r. 28(1) only applies to "any other person" apart from the respondent who intends to appear at the hearing to support or oppose the petition. It never had the intention of instructing the respondent to file the notice of intention to appear. The above propositio