The petitioner established grounds for winding up proceedings due to the respondent's indebtedness, despite the respondent's claim of disputed amounts.

Enclosures 10 And 13

[1] The petitioner issued various notices to the respondent under s 218 of the Companies Act 1965 ('s 218 notice(s)') claiming the amounts stipulated in the notices as a debt due for goods sold and delivered to the respondent. The final amount stipulated as due and owing was RM479,709.97, whereby the petitioner abandoned its claim for interest on the outstanding amount. As the respondent did not pay within the period allowed, the petitioner filed these proceedings to wind up the respondent.

[2] The respondent then filed the two applications herein vide encls 10 and 13 respectively to strike out the petition and to restrain the petitioner from proceeding against the respondent with winding up proceedings. The grounds on which the two applications were based are contained in the supporting affidavits of the respondent and are elaborated upon in the submissions of counsel for the respondent. In a nutshell, the respondent contended that as it disputed the amount said to be due and owing and as the petitioner had failed to obtain judgment for the amount prior to bringing these winding up proceedings against the respondent, there was a serious question to be tried which disentitled the petitioner to apply to wind up the respondent.

[3] The parties filed copious affidavits to state their respective cases and to reply to the case for the opposite side, sometimes unnecessarily and long windedly. This practice is to be deprecated in proceedings of this nature and it behoves a genuine petitioner to keep its story short and to the point unless his counsel, unwittingly and through the multiple affidavits filed, wishes to create the impression in the mind of the court that his client's case is not that clear cut and strong, as contended.

[4] The crux of the matter in the respondent's two applications herein, despite the purported issues raised, is whether the respondent is indeed indebted to the petitioner for the amount claimed and is unable to pay its debt.

[5] There is, in evidence, the respondent's own letter of 21 October 1998, whereby reference was made to a meeting of the parties' representatives on 7 October 1998 and the respondent forwarded two post dated cheques in payment of two invoices in the sum of RM20,000. There was no mention in this letter of any dispute of the total amount owing or the like. It only raised the following in respect of interest payments:

Meanwhile, as discussed and agreed, kindly review the late payment interest. (Emphasis added.)

[6] If at all, the late payment interest imposable was the only aspect of the dealings between the petitioner and the respondent in respect of which the respondent was seeking some indulgence, without even disputing the same. However, this aspect of the dealings becomes a non-issue in the light of the petitioner abandoning altogether any claim for interest.

[7] I note that it was only after the last of the petitioner's s 218 notices dated 1 March 1999 was issued that the respondent designed to reply to it as per exh 'WPM-9' dated 31 March 1999 in encl 9, raising for the first time the purported issues forming the substratum of the respondent's said two applications adverted to earlier. However, on the basis of the decision of the Federal court in Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Bank Bhd, 1995 MarsdenLR 1458 , it behoved the respondent to have come out with such an answer very much earlier in the prevailing circumstances and as the respondent failed to do so, it could only mean that the very late and delayed response was contrived to stave off the threatened winding up proceedings.