Haji Hamid Sultan Bin Abu Backer, JC

JUDGMENT

[1]This is my judgment in respect of the judgment debtor’s appeal (Encl. 66) against the decision of the learned senior assistant registrar who dismissed the judgment debtor’s “Notice By Debtor of Intention to Oppose Petition” (Encl. 50) filed pursuant to rule 117 of Bankruptcy Rules 1969

[2]The judgment debtor’s objection to the creditor’s petition is based on the following grounds namely:

(i)The judgment creditor failed to comply with section 5 (1) (c)Bankruptcy Act 1967

(ii)The judgment debtor denies that there was any act of bankruptcy committed by the judgment debtor on 24–02–2006. There was no such debt owed to the judgment creditor on the said date by virtue of an outside agreement entered between the judgment creditor and the judgment debtor.

(iii)The judgment creditor holds securities for payment of the said sum. The said securities if realized are more than sufficient to cover or settle the debt outstanding, if any.

(iv)The affidavit of truth of statement in petition affirmed by the deponent is defective and/or bad in law as the deponent has no knowledge or source of knowledge to depose the said affidavit or to verify the several statements in the creditors' petition.

[3]The main reason for Encl. 50 to have been disposed off is set out in the ruling of the learned senior assistant registrar and is based on technicality and preliminary objection. The relevant part of the same inter alia reads as follows:

On the hearing date of the CP, MrLim Lip Tze, counsel for the JC raised a preliminary objection on procedural issue. According to him, Encl 50 is invalid, ineffective, bad in law and ought to struck out. Learned counsel for the JC urged this Court to follow the Supreme Court decision in Datuk Lim Kheng Kim v Malayan Banking Bhd (1993) 2 MLJ 298and Federal Court decision in Development & Commercial Bank Bhd v Datuk Ong Kian Seng (1995) 2 MLJ 724. In both cases, the issue was whether it is sufficient to file a notice of intention to oppose the CP instead of filing a summons in chambers under r 18 of the Rules. In Datuk Ong Kian Seng's case, citing the relevant passage from the judgment of the Supreme Court in Datuk Lim Kheng Kim's case, the Federal Court said:

Rule 18 of the Rules further provides that except where the Rules or the Act provide, every application shall, unless the court otherwise direct, be made by motion supported by an affidavit. In Datuk Lim Kheng Kim, the Supreme Court held that failure to follow r 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 or bankruptcy notice other than that the debtor has a counterclaim, set-off or cross-demand which equals 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.

On this specific point, learned counsel for the JD took an opposite view and he pointed out that, that the question of whether the mere filing of a Notice in Encl 50 pursuant to r 117 of the Rules is sufficient to oppose the petition was also considered in the Court of Appeal decision in Dato' Sri Teong Teck Leng v Jupiter Securities Sdn. Bhd (2003) CLJ 34. There, it was held that:

In the instant case, a notice of intention to oppose the creditor's petition pursuant to r 117 was filed. That would be sufficient to entitle the debtor to oppose the petition. He does not have to file further a summons in chambers for the purpose.

Thus, from the passages quoted above, the next issue for this Court to determine is whether to follow decisions in Court of Appeal or Supreme and Federal Courts. I am therefore compelled to say that I was bound by both authorities in Court of Appeal and Federal Court. However, my attention is drawn to a doctrine of stare decisis. I therefore, find it appropria