JUDGMENT

Gopal Sri Ram JCA:

This appeal raises a short but important point relating to the law governing personal insolvency. We heard this appeal on 22 April 1996, and, at the conclusion of arguments, allowed it. Our reasons for doing so now follow.

The relevant facts may be shortly stated, and we will, for convenience, refer to the respondent as "the creditor" and the appellant as "the debtor" respectively.

On 13 February 1990, the creditor obtained judgment against the debtor in the sum of RM337,812.25. Acting on this judgment, the creditor, on 18 March 1991, caused to be issued from the registry of the High Court at Kuala Lumpur, a bankruptcy notice for the judgment sum. That notice was duly served upon the debtor who made no response to it. By the terms of the Bankruptcy Act, 1967 , which is the law governing personal insolvency, the debtor committed an act of bankruptcy. This entitled the creditor to present a petition to have the debtor adjudicated as a bankrupt.

On 10 June 1991, the creditor presented a petition against the debtor. Paragraph 1 of that petition reads as follows:

That the said debtor is domiciled in the Federation or in any state or within one (1) year before the date of presentation of the petition has ordinarily resided in the State of Sabah and has an address for service at Malayan Banking Berhad Sandakan Branch, 48, Jalan Tiga, 90000 Sandakan Sabah.

On 8 July 1992, the debtor filed and served a notice of intention to oppose the petition. The petition came for hearing before a Judge on 17 July 1992. The debtor appeared by Counsel and resisted the petition. After hearing arguments, the learned Judge dismissed the notice to oppose and adjourned the petition to another date for hearing. It is against the order of dismissal that the present appeal has been brought.

In the Court below, Counsel for the debtor relied on r. 101 of the Bankruptcy Rules, 1969, sub-rules (1) and (2) of which read as follows:

101. (1) The petition shall be filed in the Court in which it is to be presented.

(2) Where the debtor has for the greater part of one year immediately preceding the presentation of the petition carried on business in one State and resided in another State the petition shall be filed in the Court of the State in which he has carried on business.

It is common ground that the debtor was, for the one year preceding the presentation of the petition not resident in Kuala Lumpur or in any other State within Peninsular Malaysia. He was in fact ordinarily resident in Sandakan, in the State of Sabah during the relevant period. Based upon these undisputed facts, Counsel argued that the creditor ought to have presented his petition in the High Court in Sabah and not in the High Court in Malaya.

Counsel for the creditor argued that the petition had been properly presented before the High Court at Kuala Lumpur. He said that the debtor, by engaging Counsel in Kuala Lumpur, had submitted to the jurisdiction of the High Court in the capital city. He referred the learned Judge to ss. 5(1)(d) , 93(7)and 131 of the Bankruptcy Act 1967 which provide as follows:

5. (1) A creditor shall not be entitled to present a bankruptcy petition against a debtor unless:

(d) the debtor is domiciled in the Federation or in any State or within one year before the date of the presentation of the petition has ordinarily resided or had a dwelling house or place of business in the Federation or has carried on business in the Federation personally or by means of an agent or is or has been within the same period a member of a firm or partnership which has carried on business in the Federation by means of a partner or partners or an agent or manager.

93. (7) Where the debtor is proved to be resident in a state other than the state in which a petition under this act is presented, the Court may upon application duly made in that behalf order the transfer of the proceedings to the Court of the state in which the debtor resides, at any time