Abdul Malik Ishak JCA

(delivering judgment of the court):

INTRODUCTION

We heard these two appeals vide J-03(IM)–1–01 of 2012 and J-03(IM)–2–01 of 2012 together since they are based on the same set of facts. The parties themselves agreed to have these two appeals to be heard together.

CIVIL APPEAL NO J-03(IM)-1–01 OF 2012

This is an appeal against the decision of the judicial commissioner who dismissed the appellant’s appeal against the decision of the senior assistant registrar (‘SAR’) granting a receiving order and an adjudicating order against the appellant.

Before the SAR, the appellant had filed a summons in chambers to set aside (a) the bankruptcy notice (‘BN’) or the service of the BN, and (b) the creditors’ petition (‘CP’) or the service of the CP. Simultaneously, the appellant also filed an affidavit in opposition to the CP.

Having heard the parties, the SAR dismissed the appellant’s summons in chambers and the appellant’s opposition to the CP. And the SAR then granted the respondent’s application for a receiving order and an adjudicating order against the appellant. The appellant did not lodge an appeal against the dismissal of the summons in chambers within the prescribed time and, finally, the appellant abandoned any appeal in regard to it.

But the appellant did appeal to the judge in chambers against the dismissal of the appellant’s opposition to the CP and the granting of the receiving and adjudicating orders. The judicial commissioner dismissed the appellant’s appeal. Aggrieved, the appellant now appeals to this court.

For convenience, the appellant will hereinafter be referred to as the ‘JD’ while the respondent bank will be referred to as the ‘JC’.

Before us, the JD advanced the following six grounds of appeal:

(a)that the calculation of interest in the BN is inconsistent with the terms of the judgment;

(b)that the judgment debt stated in the BN differs from the judgment debt as stated in the JC’s statement of account dated 30 October 2009;

(c)that the JC has failed to state in the petition that the borrower has charged its property as security for the loan;

(d)that the JC has failed to state that the borrower has charged a fixed deposit of RM50,000 as security for the loan;

(e)that the order for the substituted service of the BN and the order for the substituted service of the CP are void; and

(f)that the name and address of the solicitors for the JC is not stated in the advertisement for the substituted service of the BN and the CP respectively.

THE FIRST GROUND

It is the contention of the JD that the JC has failed to deny the JD’s averments concerning the calculation of interest. But a perusal of the JC’s affidavit in reply in para 4.1 shows that the JC has expressly denied the JD’s averments in regard to the calculation of interest. The JC acted cautiously and did not take the bait laid by the JD by going into the details pertaining to the calculations because the JD was clearly attempting to circumvent the clear statutory requirement of s 3(2)(ii)Bankruptcy Act 1967

3 Acts of bankruptcy.

(2) A bankruptcy notice under this Act shall be in the prescribed form and shall state the consequences of non-compliance therewith and shall be served in the prescribed manner:

Provided that a bankruptcy notice

(i)may specify an agent to act on behalf of the creditor in respect of any payment or other thing required by the notice to be made to or done to the satisfaction of the creditor; and

(ii)shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such mistake; but if the debtor does not give such notice he shall be deemed to have complied with the bankruptcy notice, if within the time allowed he takes such steps as would have constituted compliance with the notice had the actual amount due been correctly specified therein.

Here,