JUDGMENT

This is an application by summons in chambers by the judgment debtor for an order that bankruptcy notice dated 25th November 1991 (“the bankruptcy notice“) and the Creditors’Petition dated 2nd June 1992 (“the Creditors Petition“) be set aside.

The grounds of the application are stated in the affidavit of Tio Chee Hing affirmed on the 20th October 1995.

The learned counsel for the petitioning creditor raised a preliminary objection, i.e. whether the application by the judgment debtor to set aside the bankruptcy notice and the Creditors Petition by way of summons in chambers proper or not. He contended that the proper procedure was that this should have been by way of Form 16 as provided for underRule 117 of theBankruptcy Rules 1969

In support he cites the case of Chua Muk Kwee, Re: Ex–parte UMBC Finance Berhad (1994) 1 AMR 17 and Development & Commercial Bank Berhad v Datuk Ong Kian Seng @ Ong Kin Cheang (1995) 3 AMR 2063.

The learned counsel for the judgment debtor submitted that this is an application to set aside the bankruptcy notice and the Creditors Petition under Rule 18 of the Rules by summons in chambers. He further stated that it has been decided in the case of Datuk Lim Kheng Kim v Malayan Banking Bhd. (1993) 2 MLJ 298 that in an application where it is not a challenge against a bankruptcy notice by way of counterclaim set off or cross demand the application should be by motion. Since then because of the amendment by PU(A) 60/93 every application must be by way of summons in chambers supported by affidavit. He therefore submitted that to set aside bankruptcy notice it is covered under rule 18 and not rule 117 because rule 117 applies to hearing of the Creditors Petition.

In the case of Development & Commercial Bank Berhad v Datuk Ong Kian Seng @ Ong Kin Cheang (1995) 3 AMR 2063 His Lordship Mohamed Dzaiddin b. Hj. Abdullah FCJ (delivering the decision of the Federal Court) said at page 2072:

“Rule 117 provides that where a debtor intends to show cause against a petition, he shall file a notice specifying the statements in the petition which he intends to deny or dispute. The contents of the notice can be found in Form 16 of the Rules wherein it must be stated that he intends to oppose the making of the receiving order as prayed and that he intends either to dispute the petitioning creditor’s debt or the act of bankruptcy or as the case may be. Rule 18 of the Rules further provides that except where the Rules or the Act provide, every application shall, unless the court otherwise directs, be made by motion supported by an affidavit. In Datuk Lim Kheng Kim, the Supreme Court held that failure to follow rule 18, which requires an application to be made by motion supported by affidavit, renders an affidavit in opposition ineffective and bad in law because unless the court otherwise directs, challenges to the creditor’s petition notice other than that the debtor has a counterclaim, or exceeds the judgment debt, must be made by filing a notice of motion supported by an affidavit. This court has no reason to disagree with the decision and will follow it. Accordingly, in our view, the respondent’s affidavit in opposition cannot be substituted as a notice to show cause against the creditor’s petition to challenge the validity of the bankruptcy notice.

Further, we are of the view that the respondent’s failure to file a notice under rule 117 supported by an affidavit cannot be excused as a mere formal defect.“

In view of the case of Datuk Lim Kheng Kim v Malayan Banking Bhd (1993) 2 MLJ 298 the affidavit in opposition referred to in paragraph 5 of the affidavit of Tio Chee Hing cannot be used as grounds to support the Summons in chambers. This is because the said affidavit in opposition is ineffective and bad in law.

I am of the view that the affidavit in support of the summons in chambers does not aver any grounds why the bankruptcy notice should be set aside.

From paragraph 9 of the affidavit it is clear that the judgment debto