The court confirmed that a corporation's petition can be validly signed by solicitors on behalf and non-signing by the corporation is an irremediable irregularity, not constituting prejudice.

The petitioners filed a petition in court against the respondent on 3 September 1999, averring that the respondent company was indebted to the petitioner in the sum of RM1,430,000 (excluding interest) worked up as at 21 May 1998; being the balance of the purchase price payable over the property held under H.S.(M) 32832 P.T. No. 32672 Mukim of &ang with a four-and-a-half storey shophouse erected thereon and better known as Lot 14, Jalan Perdana 10/12 Pusat Perdagangan Tasik Perdana, 55300 Kuala Lumpur.

The said petition was signed by FY Poh & Co as solicitors for the petitioners.At the hearing of the petition the respondent solicitors took two preliminary objections:

(i) that the affidavit in verification in support of the petition was not served on the respondent;

(ii) that the said petition was not signed by the petitioner themselves - as a limited company; but instead was signed by the solicitors of the petitioners; and this amounted to a material defect, not curable by the court under its inherent discretionary powers; and as such it should be struck off.

Upon hearing the arguments, I dismissed both the preliminary objections and my reasons for dismissing are:

(i) that neither the Companies Act 1965 ; nor the Companies (Winding-up) Rules 1972, procedurally require the affidavit in verification of the petition, to be served on the respondent.All that is required is that a petition is to be served under r. 26 - which reads:

Every Petition for the Winding-up of a company ... shall be verified by an affidavit ... and and in the case (where) the Petition is presented by a corporation (then the said affidavit) shall be affirmed by some director, secretary or other principal officer; and sworn and filed within four days after the Petition is presented.

Further by r. 25(1) "Every petition shall be served upon the company"; so the question for the court was whether the petition includes the affidavit in verification and the court held that a petition proper comes into existence immediately upon the filing of the petition into court; whereas the affidavit in verification is procedurally required to verify the petition within four days thereafter of the filing of the petition.In the light thereof, the petition perse stands independently of the affidavit in verification; and the affidavit cannot therefore be said to form a part of the petition.

In any event, from the affidavit of service of the petition, affirmed by Mr. Allfeat M. Ignally on 16 October 1999; he deposed, that he had personally called at the registered office on 22 September 1999, at 11.45 a.m. and thereat served upon a person identified as Catherine Chong, a servant of the company, who accepted service of both the petition and the affidavit in verification of the petition; but refused to acknowledge receipt thereof, by affixing the respondent's rubber stamp.With this averment on record, without any denial or rebuttal by a counter-affidavit, I am satisfied that notwithstanding my holding otherwise on the question of service on the affidavit in verification; it was so served and the question of service as such does not arise.

On the second preliminary point, the respondent solicitors rested his argument based on the requirements of forms adopted under the Bankruptcy Act (1967) and the Rules thereunder - more particularly Form 9 (Bankruptcy Rule 99) which requires the petitioning creditor to sign the creditors petition and the signing thereof to be attested by a solicitor.

I must from the outset state that the Bankruptcy Act (1967) and the Rules thereunder are not applicable pari materia to the winding-up proceedings; which are specifically governed by the Companies Act (1965) and the (Winding-up) Rules 1972.This has been decided by the court of Appeal in the case of YPJE Consultancy Service Sdn. Bhd. v. Heller Factoring (M) Sdn. Bhd. [1996] 2 AMR p. 2014 at 2024 where the court held "that the authorities from the Bankruptcy cases are not applicable to windin