JUDGMENT

Abdul Malek Ahmad FCJ:

Judgment for the sum of RM5,513,468.61 had been entered against the respondent on 19 November 1987 and the bankruptcy notice dated 4 June 1992 was duly served on the respondent on 3 November 1992. The creditor's petition was served on the respondent on 1 September 1993. Notice to oppose the creditor's petition filed on 23 May 1994 was served on the appellant on 2 June 1994.

On 23 June 1995, the learned senior assistant registrar dismissed the creditor's petition with costs. Since there were no grounds of judgment by the learned senior assistant registrar, the learned High Court judge proceeded to hear the appeal as if it were a retrial. The appeal to the judge in chambers was dismissed with costs on 20 December 1995, mainly because the creditor's petition had lumped the principal amount with accumulated interest for more than six years calculated backwards from the date the bankruptcy notice was dated.

This is evident from what was stated by the learned High Court judge at p. 17 of his judgment:

But since the interest item has formed an integral part of the total amount, inseparable from the principal sum as well as other subsequent claim (sic) on interest not affected by the Limitation Act due to the nature of a running account as stated in the particulars as set out in the Banks (sic) Notice and the Petition, the entire claim of the Petitioning Creditors as stated in the Bankruptcy Notice and Petition is therefore unenforceable.

Subsequently, the appeal to the Court of Appeal was dismissed on 20 July 1999 with no order as to costs. However, the grounds of judgment of the Court of Appeal only became available on 1 October 2001.

On 7 July 2003, the court granted the appellant leave to appeal on the following two questions:

(a) whether for the purposes of interpretation of the provisions of the second limb to section 6(3) of the Limitation Act 1953 the date when interest became due under a judgment is to be taken as the date of judgment, or the date of commencement of interest as stipulated in the judgment;

(b) whether acceptance of part payment by a judgment creditor in the course of bankruptcy proceedings renders the proceedings as abuse of process despite indication by the judgment creditor that such payments would be paid over to the official assignee in the event the debtor is adjudicated bankrupt upon the Creditors Petition by reason of the absence of full settlement of the judgment debt;

On 28 October 2003, the respondent filed a motion asking for the appeal to be dismissed pursuant to the inherent jurisdiction of this court or alternatively pursuant to para. 11 of the Schedule to, read with s. 25(2) of, the Courts of Judicature Act 1964 (hereinafter "the CJA"), or alternatively for the appeal to be permanently stayed, with costs on the ground that the appellant had filed a fresh bankruptcy notice on the respondent on 16 November 1999 which, on the respondent's application, was set aside by the learned senior assistant registrar on 12 October 2000. At the time of hearing of this appeal, the appeal to the judge in chambers against that order of the learned senior assistant registrar was still pending. It is the contention of the respondent that there has been a multiplicity of proceedings as both bankruptcy proceedings are founded on the same judgment.

The supporting affidavit also alleges that the bankruptcy notice the second time around was not in accordance with the judgment because the appellant is a Singapore based company with no place of business in Malaysia, the appellant cannot be carrying on a business within the premises of the appellant's solicitors, and that nowhere is it stated in the bankruptcy notice that the appellant's solicitors had authority to receive payment and to issue a receipt and discharge on the appellant's behalf.

We decided to hear the appeal and motion together.

As for the first question, it appears to be different from the question posed at the leave stage in