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JUDGMENT
Ramly Ali J:
[1] This is the JUDGMENT creditor's (JC) appeal against the decision of the learned senior assistant registrar made on 6 September 2005 in allowing the judgment debtor's (JD) summon in chambers to set aside the bankruptcy notice dated 11 August 2004 with costs.
Chronology Of Proceedings
[2] On 3 July 2002, the JC obtained a judgment against the JD as guarantorvide Kuala Lumpur High Court Suit No: D7-22-1443-2001. On 23 April 2004 the JC issued the bankruptcy notice against the JD.
On 12 July 2004, the bankruptcy notice was served personally on the JD. Seven days after that (ie, on 20 July 2004) an act of bankruptcy was committed by the JD for failure to comply with the demand made in the bankruptcy notice. On 11 August 2004, the JD filed an application (vide encl. 5) to set aside the bankruptcy notice.
JD's Grounds To Set Aside The Bankruptcy Notice
[3] The two grounds on which the JD seeks to set aside the bankruptcy notice are as follows:
1. the bankruptcy notice does not comply with the terms of the said judgment and the debt claimed in the bankruptcy notice is excessive; and
2. the JC has failed to first realise the property charged as security to the JC.
JC's Preliminary Issue
[4] The JC on the other hand raised a preliminary issue that the JD has not complied with
Judgment Dated 3 July 2002 Against The JD
[5] On 3 July 2002 the JC had obtained a judgment against a company known as Gluxe Corporation Sdn. Bhd., the principal borrower under a loan facility granted by the JC and against the JD as the guarantor in the Kuala Lumpur High Court Suit No: D7-22-1443-2001. In essence, the terms of the said judgment say inter alia as follows:
(1) a sum of RM277,494.31 under Term Loan (A/C: 702-404906-6) as at 30 June 2001;
(2) interest thereon at the rate of 3.5% per annum above plaintiff's base lending rate on daily basis with monthly rests calculated from 1 July 2001 until full realisation;
(3) a sum of RM267,531.90 under Term Loan (A/C No: 702-409824-5) as at 30 June 2001;
(4) interest thereon at the rate of 3.5% per annum above plaintiff's base lending rate on daily basis with monthly rests calculated from 1 July 2001 until full realisation;
(5) a sum of RM1,047,316.88 under Revolving Loan (A/C No: 702-404912-0) as at 30 June 2001;
(6) interest thereon at the rate of 3.5% per annum above plaintiff's base lending rate on daily basis with monthly rests calculated from 1 July 2001 until full realisation; and
(7) costs on solicitors client basis.
Bankruptcy Notice Dated 23 April 2004
[6] Based on the said judgment, the JC issued a bankruptcy notice dated 23 April 2004 against the JD which, inter alia , contained the following demand and particulars:
BANKRUPTCY NOTICE
To: WOO YOKE SAN @ WOO YOKE SAM No. 64, Jalan 28 Taman Overseas Union Jalan Kelang Lama 58200 Kuala Lumpur.
TAKE NOTICE that within seven (7) days after the service of this Notice on you, excluding the day of such service you must pay to OCBC Bank (Malaysia) Berhad of Wisma Lee Rubber, Jalan Melaka, 50100 Kuala Lumpur, the sum of Ringgit Malaysia Two Million and Ninety Six Thousand Three Hundred and Ninety Four and Sen Seventy Two Only (RM2,096,394.72) claimed by them as being the amount due on the final Judgment obtained by them against you in the High Court at Kuala Lumpur vide Suit No: D7-22-1443-2001 on the 3rd day of July, 2002 whereupon execution had not been stayed, or you must secure or compound for the said sum to their satisfaction or the satisfaction of the Court; or you satisfy the Court that you have a counter-claim, set-off, or cross demand against them which equals or exceeds the sum claimed by them, and which you could not set up in the action in which the Judgm
