[ON ENCLOSURE (29)]

I. APPLICATION

Enclosure (29) before me was filed by the respondent seeking an order that the petitioner's petition in enclosure (2) filed on 24 August 2004 be struck out with costs pursuant to O. 18 r. 19(1)(d) of the Rules of the High Court 1980 or the inherent jurisdiction of the court.

II. FACTUAL BACKGROUND

The petitioner herein is Affin Bank Berhad ("Affin"). BSN Commercial Bank (Malaysia) Bhd ("BSN") has on 19 October 2000 vide Kuala Lumpur Civil Suit D7-22-1332-2000 ("the Kuala Lumpur suit") obtained judgment against, inter alia, the respondent in the sum of RM4,581,013.79 together with further interest at 2.5% per annum above the base lending rate (at 6.8% per annum) calculated on monthly rests with effect from 31 March 2000 until full realisation, and penalty interest of 1% on the above prescribed rates in the event of late payments ("the judgment").

On 26 April 2001 vide the Kuala Lumpur suit, BSN has obtained an order that the judgment creditor BSN be replaced by Affin the petitioner.

As at 31 May 2004, the judgment sum amounted to RM6,375,661.06.

On 21 June 2004, BSN through its solicitors served a statutory notice under s. 218 of the Companies Act 1965 on the respondent's registered office demanding payment by the respondent of the aforesaid judgment sum within 21 days thereof, but the respondent has failed to do so.

A reference hereinafter to a section is a reference to that section in the Companies Act 1965 unless the context otherwise requires.

The respondent's grounds of application were set out by the affidavit in support affirmed by the respondent's executive director who stated, inter alia, that:-

1. the petitioner was not known to the respondent and hence has no locus standi to present the petition; and

2. the sum claimed in the petition was not in accordance with the terms of the judgment.

III. LOCUS STANDI

Learned counsel Mr. Peter Gan elaborated for the respondent that Affin is not the correct creditor under s. 217(1)(b), and so the petition herein is an abuse of the process of the court, relying on Jurupakat Sdn Bhd v. Kumpulan Good Earth [1973] Sdn Bhd [1988] 1 CLJ 618 (Rep); [1988] 2 CLJ 649; [1988] 3 MLJ 49; and Tan Yar Joo @ Chan Yik Yee v. Sin Yee Estate Sdn. Bhd. [1995] 2 CLJ 657.

In response, learned counsel Miss Sharifah Shewikar Alhabshi contended for the petitioner that after having obtained the judgment, BSN as the judgment creditor had applied by way of summons-in-chambers and obtained an order on 26 April 2001 in the Kuala Lumpur suit wherein the petitioner Affin has replaced BSN as the judgment creditor. The relevant summons in chambers had been served on the respondent. The respondent has not objected to the application. The respondent has also not replied to the petitioner's affidavit in support. Reliance was sought in Alloy Automotive Sdn. Bhd. v. Perusahaan Ironfield Sdn. Bhd. [1986] CLJ 45 (Rep); [1986] 1 CLJ 2; [1986] 1 MLJ 382; and Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283; [1995] 3 AMR 2871.

The petitioner also relied on a vesting order obtained by BSN in favour of Affin.

It is clear to me that the submissions raised for the respondent is purely technical in nature. The answer is to be found in the above factual background which is otherwise simple and straightforward.

In Jurupakat Sdn Bhd, supra, there was no judgment debt. The question for the court to decide was whether the petitioner was a creditor who could file a petition to wind-up the respondent. Zakaria Yatim J (later FCJ) held that the petitioner was not a creditor as envisaged in s. 217 and so had no locus standi to file the petition which was an abuse of the process of the court. The facts revealed in that authority are obviously distinguishable from those in the instant petition.

It is noteworthy that the statutory notice has referred to the judgment creditor as "BSN Commercial Bank (Malaysia) Berhad now known as Affin Bank Berhad".

In my judgmen