Azizan Md Arshad J:

GROUNDS OF JUDGMENT

(ENCL. 128 - APPEAL TO JUDGE IN CHAMBERS ON ENCL. 114)

Introduction

[1]This is an appeal by the Judgment Creditor (JC) against the decision of the Senior Assistant Registrar (SAR) on 23^rd of July 2025 which dismissed the application for amendment of Bankruptcy and extension of time to file the Creditor Petition.

[2]On 5.11.2025, this court dismissed JC’s appeal with RM5,000.00 in costs after hearing the parties’ appeals and affirming the Learned SAR’s decision which has laid this appeal before the COA at present. The parties in this judgment will be referred to as they were in the High Court

Issue

[3]There are 2 main issues that have been argued by the parties during the appeal stage, namely:

First Issue:

“Whether the amendment to BN should be allowed?”; and Second issue:

“Whether the amendment to BN should be allowed and Enclosure 2 should be automatically struck out?”

Background facts

[4]The revised notice of application (re-dated 14.03.2025) in Enclosure 114 addresses three proposed amendments, which are as follows:

(a)leave to amend the Bankruptcy Notice (“BN”) dated 1.12.2022 (Enclosure 2);

(b)that the JC be given 6 months from the date of the order applied for to file the Bankruptcy Petition (“CP”)

(c)costs in the cause.

Arguments of the partiesSecond Issue.

[5]The primary concern is the Second Issue, which will subsequently impact the First Issue. Therefore, this Court will address the Second Issue (before the First Issue) in its decision, which is:

“Whether the Court has power to extend the six-month period stipulated under Section 5(1)(c)Insolvency Act 2017after it has expired?”

Summary of JC’s Arguments

[6]The JC’s principal argument is that the delay in filing the Creditor’s Petition was not deliberate but due to pending appellate proceedings.

[7]This Court reiterates part of JC’s argument. The JC submits that:

(a)it was inappropriate to continue bankruptcy steps while appeals were still pending, as any further action might have been stayed;

(b)that the six-month limitation under section 5(1)(c)Insolvency Act 2017

(c)the JC emphasises that the JD has, since 2001, continuously resisted enforcement through a series of interlocutory and appellate proceedings. It would be inequitable, therefore, for the JD to now rely on statutory technicalities to defeat the judgment debt;

(d)no prejudice would be caused to the JD if time were extended, as the JD has long been aware of the enforcement process and the debt remains outstanding;

(e)from the chronology of events, it is easily seen that the extension application (Enclosure 114) was not due to mismanagement, oversight or holding back the lodgement as a means of holding the JD to ransom or such like.;

(f)Enclosure 114 was filed on 13.12.2024. That was only 3 weeks from the decision on Enclosure 38 in dismissing the JD’s appeal;

(g)the Court is empowered to extend time after its expiration, (refer to Section 93(4)Insolvency Act 2017

(h)the Court is equally empowered under the insolvency rules to extend time under special circumstances. As the 6 months having lapsed because of hearing of other matters, there would be great injustice to the JC if he cannot refile the CP, hence it was a special circumstance. The Court therefore permitted the extension of time to file the CP.

Summary of JD’s Arguments

[8]On JD’s part, the summary of the argument revolves around the following:

(a)the application is defective, irregular and time-barred;

(b)Section 5(1)(c)Insolvency Act 2017

(c)and jurisdictional in nature. It requires the Creditor’s Petition to be filed within six (6) months from the act of bankruptcy. Once the period lapses, the right to present the petition is extinguished, and the Court has no jurisdiction to revive or extend it.

(d)the act of bankruptcy has occurred, either on 3.3.2023 or, at the latest, 9.5.2024 when the Stay Order pending appeal to Court of Appeal (COA) ended. Even reckoning from the latter date, the six-month period expired on 8.11.2024, whereas the JC f