Kang Hwee Gee J:

Following a hearing before the senior assistant registrar on 30 July 2001 an adjudication order and a receiving order were made against the judgment debtor based on the judgment debt of RM463,291.41 obtained by the judgment creditor from the Shah Alam High Court on 3 September 1999.

The judgment debtor now appeals against the said decision.

The bankruptcy petition was presented for the judgment creditor's company by its director Mr. Lee Neh @ Lee Pins Ten.

The judgment debtor opposed the petition on the ground that the said Mr. Lee had failed to state in his petition and also in the affidavit verifying the petition that he was authorised under the seal of the judgment creditor to present the petition. Both the petition and the affidavit it was contended, had offended r. 215 of the Bankruptcy Rules 1969 read with s. 133 of the Bankruptcy Act 1967 and had thereby rendered the petition void and ineffective. Consequently, it was argued, the petition should have been dismissed.

Section 133(a) of the Bankruptcy Act 1967 reads as follows:

For all or any of the purposes of this Act:

(a)a corporation may act by any of its officers in that behalf under the seal of the corporation.

Rule 215 of the Bankruptcy Rules 1969 reads as follows:

Where a corporation presents a petition or takes any other action under this Act, the officer of the corporation may act in his own name, stating that he is such officer duly authorised under seal; but a petition may be presented by the corporation, and signed by the officer on its behalf. Any person chosen by the corporation to act for it as agent, is an 'officer' within s. 133, and if duly authorised under seal can act for the corporation.

Counsel for the judgment debtor relied on the judgment of Steve Shim J (as he then was) in Re Lim Chooi Sang, ex p Soon Fay Sdn Bhd[1999] 5 MLJ 605 at 609 in which he had ruled as follows:

In any event, I am more inclined to accept the construction adopted by the court in Re Samuel Pakianathan (supra). In my view, r. 215 has to be read with s. 133 of the Bankruptcy Act. Reading the second limb in r. 215 with s. 133, it would seem clear that any officer presenting a creditor's petition on behalf of a corporation has to be duly authorised under seal. In the case of a corporation presenting a creditor's petition by an officer authorised in that behalf, there is no necessity for a board resolution granting the authorisation to be under seal provided that the seal of the corporation is affixed to the authorisation: See Re Midgley[1913] 68 LT 45.

Having regard to the views I take, I am bound to hold that the JC has not shown that Encik Chong Che Chong (a director of the JC) who presented the creditor's petition on behalf of the JC, a corporation, had been duly authorised under seal to do so at the material time. Neither the creditor's petition nor the affidavit of truth of statement deposed by Encik Chong Che Chong give any indication that there was an authorisation under seal. In the circumstances, and for the reasons stated, I find there is substance in the first ground advanced by the JD.

His Lordship followed the reasoning of RK Kamalanathan Ratnam JC (as he then was) in the earlier case of Samuel Pakianathan a/l Jabamanickam, Re Ex parte Perwira Habib Bank Malaysia Berhad[1996] 2 AMR 2055 at 2076 wherein an "officer duly authorised" in r. 215 was read in conjunction with s. 133(a) of the Act to mean "one who has been authorised under the seal of the corporation", and consequently, it was held that the officer presenting the petition of the company must still have to be one who has been authorised under the seal of the corporation.

The decision appears to be at variance with the judgment of Abdul Wahab Patail J in Re Kang Chong Yeow[2001] 3 MLJ 98 wherein he had commendably analysed r. 215 of the Bankruptcy Rules 1969. He found that there were three ways by which a corporation may go about to present a bankruptcy petition under that rule. The j