Mokhtar Sidin JCA:

This is an application by the respondent by way of notice of motion dated 13 September 2000 to strike out the notice of appeal dated 19 May 2000 filed by the appellant. The notice of appeal was in respect of a decision by the learned judge of the High Court, Ipoh in Civil Suit No. 22-211- 1990 (hereinafter referred to as the "Ipoh civil suit"). It is to be noted that the record of appeal had been filed in this court and was also fixed for hearing. The ground to strike out the notice of appeal was that the appellant failed to abide to the mandatory provisions of s. 226(3) of the Companies Actread together with s. 67 of the Courts of Judicature Act 1964.

We have allowed this application earlier and we now give our reasons for doing so.

Before proceeding, we think it is necessary to give a brief summary of the appeal leading to this application. The respondent who was the plaintiff in the court below filed a writ of summons and statement of claim against the appellant claiming the amount insured for the respondent's building and the goods contained therein which were burnt down. The building and the goods were insured with the appellant and another insurance company. The appellant was sued for its share of the sum insured. This was Civil Suit No. 22-211-90 in the High Court, Ipoh. The respondent took out another suit against the other insurance company claiming the other half of the insured sum. This action was filed in the High Court, Kuala Lumpur. It is also to be noted that the appeal in respect of the decision by the High Court, Kuala Lumpur was also fixed for hearing before us. In respect of the Ipoh civil suit the respondent commenced the action on 9 November 1990. On 5 November 1992 the respondent was wound-up.

The appellant on knowing that the respondent was wound-up then made an application videencl. 39 in the Ipoh High Court for security for costs. This application was heard by the deputy registrar. The respondent resisted the application but the deputy registrar made the order that the respondent to deposit the sum of RM70,000 as security for costs. Being dissatisfied with that decision both the appellant and the respondent appealed and cross appealed to the judge. It was at this stage that for the first time counsel for the respondent raised the issue of the mandatory provisions of s. 226(3) of the Companies Act 1965whereby leave of the winding-up court is necessary before any action could be commenced against the respondent since it had been wound-up. Respondent's counsel submitted that s. 226(3) of the Companies Act is an absolute bar to the commencement of any proceeding against a company in the liquidation unless leave of the court had been obtained. That being the case the proceeding before the deputy registrar was a nullity. The learned judge of the Ipoh High Court decided that leave was required before any proceeding could be instituted against the respondent. In the present appeal no leave was given to the appellant to proceed with encl. 39, the whole proceeding before the deputy registrar was a nullity and the order made by the deputy registrar in respect of security for costs should be set aside.

As a result of that decision the learned judge of the Ipoh High Court proceeded to hear the Ipoh civil suit filed by the respondent (Guaman Sivil No. 22-211-90). At the end of the trial the learned judge on 12 May 2000 gave his decision which favoured the respondent. The respondent was given judgment for the sum it had claimed. Against that decision the appellant appealed to this court. The notice of appeal was filed on 19 May 2000 and it is common ground that the appellant did not obtain any leave from the court to proceed with the appeal as required by s. 226(3) of the Companies Act. As a result of that the respondent made the present application. It is obvious to us and to both parties that if the respondent succeeded in this application then appeal No. A-02-338-2000 would lapse becaus