Haidar Mohd Noor J:

In this bankruptcy proceedings a bankruptcy notice dated 1 March 1993 was issued against Khoo Chee Tong by Unik (M) Sdn. Bhd. for a default judgment obtained on 27 February 1992 against him for a sum of RM28,000 and costs of RM909 and interests of RM2,589.84 calculated up to 1 March 1993 in the Sessions Court at Johor Bahru vide summons no. 52-5-1992-2 (see encl. 3) The learned Counsel for Khoo Chee Tong conceded that the judgment was a regular judgment.

As Khoo Chee Tong failed to comply with the notice of bankruptcy, Unik (M) Sdn. Bhd. filed a creditors petition on 5 October 1993 (encl. 21). Subsequently Khoo Chee Tong filed a notice of motion on 21 December 1993 praying for the setting aside of the bankruptcy notice and all other subsequent proceedings on the grounds set out in his affidavit in support thereof (encl. 27).

On 22 December 1994 encls. 21 and 27 were heard by the learned Deputy Registrar. He dismissed the notice of motion with costs and accordingly made a receiving order and adjudication order against Khoo Chee Tong ('debtor'). The debtor appealed against the said orders of the learned Deputy Registrar (encl. 40).

The issue here is whether the debtor in applying to set aside the bankruptcy notice could proceed by way of notice of motion.

Section 3(1)(i) of the Bankruptcy Act 1967 provides that unless within seven days after the service of the bankruptcy notice (other than there is an order of stay of execution) the debtor either comply with the requirements of the bankruptcy notice or satisfy the Court that he has a counterclaim, set off or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid and which he could not set up in the action in which the judgment was obtained or in the proceedings in which the order was obtained, the debtor commits an act of bankruptcy.

Rule 95(1) of the Bankruptcy Rules 1969 sets out the procedure for him to set aside a bankruptcy notice and I quote:

95(1). The filing of an affidavit shall operate as an application to set aside the bankruptcy notice, and thereupon the Registrar shall fix a day for hearing the application, and shall give not less than three clear days notice thereof to the debtor, the creditor and their respective solicitors, if any.

Rule 95(2) provides that no act of bankruptcy under the notice shall be deemed to have been committed under the notice until the application has been heard and determined.

Though by way of para 5 of his affidavit (encl. 26) the debtor denied receipt or knowledge of the bankruptcy notice issued against him, his Counsel subsequently withdrew the denial. In the event the debtor was caught by the seven day rule. The debtor then purportedly invoked r. 18 by filing the notice of motion. Rule 18 reads:

18. Except where these Rules or the Act otherwise provide, every application to the Court shall, unless the Court otherwise directs, be made by motion supported by affidavit.

The learned Counsel for the judgment creditor contended that the procedure adopted by the debtor in this case was wrong as the notice of motion was in essence to set aside the bankruptcy notice and cited Re Yong Chooi Fong; ex parte Perwira Habib Bank Malaysia Bhd. [1992] 2 CLJ 1262 in support thereof where the learned Judge at p. 1264, said:

Clearly to me in this present case the intention of the judgment debtor in the filing of the notice of motion, as he says in prayers (a), (b) and (c) is clearly in substance for the sole purpose of setting aside of the bankrupcty notice the procedure for which has been provided for by the filing of an affidavit underr. 95 of the said Rules .

On this ground