SULONG JC:

A petition was presented to this court towind up Delta Drive (M) Sdn Bhd (‘the company’). The company has an authorised capital of RM500,000 divided into 500,000 shares of RM1 each. Its paid up capital is RM250,000. The company is alleged to be indebted to the petitioner for a sum of RM3,908,806.31calculated as at 26 January 1998.

There were two supporting creditors Sin Kian Contractor (M) Sdn Bhd and Wei Sin Construction Sdn Bhd, both for allegedly substantial amount. They have handed over Form 9 as required by r 29 of the Companies(Winding-up) Rules 19721999 listing the names and addresses of persons who have given notice of their intention to appear.

The counsel for the company served onto the counsel for the petitioner a letter dated10 February 1999 enclosing a copy of their notice of intention to appear on petition. It was further stated therein that they would wish to put the petitioner's counsel on notice that they intend to raise a preliminary objection to the said petition. Tothis the petitioner's counsel replied pointing out Bar Council Rulings 1997 Part (H) cl 19c requesting for details of the objection.

Counsel for the company responded on 12 February 1999 notifying them that the preliminary objectionwas on the non-compliance with r 26 of the Companies (Winding-up) Rules 1972

The petition was heard before this court on 22 February 1999 and Miss Saw Kim Hong learned counsel for the petitioner raised objection to the preliminary objectionalleging that the letter from the respondent was not a good notice. Further it was also argued that as their firm was closed for one week from 15 February 1999 to 20 February 1999 for Chinese New Year holidays it did not offer them sufficient time to prepareher case.

This court overruled the objection and allowed Mr TS Chang learned counsel for the company to proceed with his submission on his preliminary objection and allowed counsel for the petitioner to submit further on 13 March 1999.

The objection revolves round r 26 of the Companies (Winding-up) Rules 1972

Every petition for the winding-up of a company by the Court shall be verified by an affidavit referring thereto. The affidavit in Form7 shall be made by the petitioner or by one of the petitioners, if more than one, or, in case the petition is presented by a corporation, by some director, secretary or other principal[1999] 6 MLJ 239 at 242 officer thereof, and shallbe sworn after and filed within four days after the petition is presented, and the affidavit shall be prima facie evidence of the statements in the petition. (Emphasis added.)

It was wellargued by learned counsel for the company that since the affidavit and the petition were both dated 26 November 1998 it failed to comply with the provision of r 26 of the Companies (Winding-up) Rules 1972Chin Yoon Timber Co v Overseas Lumber Bhd [1978] 2 MLJ 173ChinYoon Timber) was adduced as his authority.

This court regrets that it cannot accept this authority as, unlike the instant case, the facts of Chin Yoon Timber indicated that the petition to windup was presented on 17 May 1977 whereas the affidavit verifying the petition was sworn on 4 May, some 13 days before the presentation of the petition. Syed Othman J (as his Lordship then was) with great respect, correctly struck out the petition but alloweda fresh petition to be filed.

The affidavit filed before the petition cannot therefore be said to relate to any proceedings.

The Court of Appeal held in the case of YPJE Consultancy Services Sdn Bhd v Heller Factoring (M) Sdn Bhd (formerly known as Matang Factoring Sdn Bhd) [1996] 2 MLJ 482r 26 of the Companies (Winding-up) Rules 1972

Learned counsel for the company tried todistinguish the instant case and the case of YPJE Consultancy Services Sdn Bhd v Heller Factoring (M) Sdn Bhd where it was suggested r 26 was not breached because the affidavit that verified the petition was filed a day later whereasin the instant case the affidavit verifying petition and the petition were date