FACTS

Enclosure 13 was an appeal by the Judgment Debtor against the decision of the Learned Deputy Registrar dismissing the Judgment Debtor's application to set aside the Creditor's Petition with costs.

FINDINGS OF THE COURT

Mr. Simon Tan for the Judgment Debtor pointed out that the Creditor's Petition was

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invalid for non-compliance with O7 r2(lA) of the Rules of the High Court 1980 (the RHC) which reads as follows:-

"Every originating summons shall state in its intitulement the particular rule of Court and provisions of written law under which the Court is being moved."

Counsel then also referred to Order 9 r2(lA) which reads as follows:-

"Order 7, rule 2(1A), shall apply in relation to a petition as it applies in relation to an originating summons."

Contending therefore that a petition ought to be treated in a similar fashion as that of an originating summons, Counsel argued that the Creditor's Petition was therefore flawed and ought to have been dismissed.

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Miss Ng for the Judgment Creditoronthe

other hand referred me to the sampleofthe

Creditor's Petition as shown in No. 9ofthe

Forms annexed to the Bankruptcy Rules.

In the meantime Counsel for the Judgment Debtor informed the Court that the Judgment Debtor was willing to pay a sum of RM1,000.00 per month to settle the outstanding amount of RM29,306.01.

When I heard of this offer I decided to act pursuant to Sec 6(3) of the Bankruptcy Act 1967 (Act 360) which reads as follows:-

"If the court is not satisfied with the proof of the petitioning creditor's debt or of the act of bankruptcy or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other

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sufficient cause no order ought to be made, the court may dismiss the petition."

I was also guided by the very old decision of Murison CJ in Re M S Ward [1933] MLJ 69 wherein the Learned Chief Justice adopted this same procedure although he adjourned the Creditor's Petition until the debt was settled.

In the case before me the Judgment Debtor was also agreeable to pay the interest up to the last payment, at the rate of 12% per annum as claimed by the Judgment Creditor.

Miss Ng referred me to William's Law & Practice in Bankruptcy 18th Edition at Pages 64 & 65 which read as follows:-

"Where a debtor had, before act of bankruptcy, tendered a part of his debt at the express

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request of the creditor, which was refused solely in order to keep a debt of over 50 Pounds subsisting, the petition was dismissed as an abuse of process; but the facts were exceptional, and it is submitted that where, without any request on the part of the creditor tender is made of a part of the debt so as to reduce it below 50 pounds and deprive the creditor of his remedy in bankruptcy, the creditor's refusal is justified."

I could well foresee the predicament of the Judgment Creditor who feared that the Judgment Debtor might reduce the sum to below the minimum sum whereby the Judgment Creditor could be deprived of its remedy in bankruptcy.

At the end of the day a Judge's job is to meet out justice. An ideal decision is one that would benefit both parties without undue hardship or suffering inflicted upon either party.

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In the present case the Judgment Creditor is

the Perbadanan Pembangunan Pulau Pinang which

body was set up to serve the people and not bring

about undue hardship. Here justice would be done

to the Judgment Debtor if I allowed her to pay

the judgment sum in monthly instalments of

RM1,000.00 each for 19 months and the final

payment being the 20th instalment, would be the

balance sum of RM10,306.01 together with the

accrued interest at 12% per annum. In this case

the Judgment Creditor need not fear that it's

rights under the Bankruptcy Act would be denied.

I also made no order as to costs in the exercise

of my discretion.

I did not dismiss the petition but following the case in He M S Ward I shall adjourn this matter until full settlement after which this Creditor's Pe