Haidar bin Mohd.Noor J:

In this originating motion, Chi Liung Holdings Sdn. Bhd., applicant/landlord prays for an order that -

(a) The respondent/liquidator, Ng Pyak Yeow do pay the applicant/landlord, the sum of RM339,000 being the outstanding arrears of rental due to the applicant;

(b) Interest at 8% per annum from the date of default to date of realisation;

(c) Costs.

It is supported by the affidavit of Tan Sing Chai the applicant's company secretary.This originating motion was filled on 16 August 1993.

Ng Pyak Yeow, the liquidator was appointed for Rich's Supercentre Sdn. Bhd. (formerly know as G.W. - Rich's Supercentre Sdn. Bhd.) (in liquidation) which was wound up on 7 December 1989 (see exhibit TSC-4 in encl. 3).

Rich's Supercentre Sdn. Bhd. ("the company") rented the premises described as Nos, 1-21, Jalan Temoh, 41400 Klang, Selangor Darul Ehsan ("the premises") from the applicant at the rate of RM30,000 per month and car park at the rate of RM3,000 per month. A tenancy agreement was executed between the parties on 17 November 1978 for a term of three years (see exhibit TSC-1). Under clause 3.03 the company deposited three (3) months rental of RM90,000 with the applicant.By way of clause 7.02 the company is given the option to purchase the premises in the event the applicant, as the landlord, shall desire to sell the premises or any part thereof.In the purported exercise of the right under clause 7.02, the applicant vide letter dated 22 April 1989 gave the company one month's notice of option to purchase the premises.

Apparently the company appeared to have not responded to the offer of option to purchase.The applicant than issued a notice dated 10 June 1989 to that effect and at the same time giving the company one month's notice to vacate the premises by 1 August 1989 for the applicant to exercise its rights under clause 7.02 of TSC-1.

At the time the applicant gave the one month's notice to vacate, that is 10 June 1989 there was already a petition filed in the High Court, Johor Bahru on 15 May 1989 by Success Sport Company for the winding up of the company vide Companies (winding up) No. 28-67 of 1989 in which a winding up order was subsequently made on 7 December 1989 by the High Court.The premises was surrendered to the applicant on 19 December 1989 by the liquidator (see exhibit TSC-3). Apparently, the rents for the month of June to December were not paid and by way of notice dated 7 November 1990 (TSC-3), the applicant claimed the arrears at double rents which make a total sum of RM396,000 and purported to adjust the deposit sum of RM90,000 in which case the sum due should be RM306,000.How in TSC-3 the figure of RM429,000 was arrived at for all arrears due, I do not know.Be that as it may, the applicant is now claiming a sum of RM 339,000 from the liquidator as arrears of rental due to it from the company.On the other hand, the liquidator filed notice of originating motion No. 25-13-92 dated 2 April 1992 against the application (respondent in the case) praying for refund of the deposit of RM 90,000.The originating motion of the liquidator, as agreed, was stood down pending the disposal of this originating motion.

There are two issue for the consideration of the Court, viz-

(1) Whether the applicant is entitle to forfeit the deposit of RM90,000 towards the payment of the arrears of rental.

(2) Whether the applicant can claim for the arrears of rental from the liquidator by way of this originating motion.

Issue (1)

It cannot be disputed that the deposit of RM90,000 is the money of the company.The use of the word 'adjust' in TSC-3 in respect of the deposit money is in actual fact a forfeiture to cover for the arrears of rental due to the applicant (see s. 3.03 of TSC-1).

In the circumstances the first question for me to consider is the whether applicant is a secured creditor.According to s. 4 (1) of the Civil Law Act 1956 , brankruptcy rules under the law of bankruptcy shall apply to the w