JUDGMENT

Abdul Hamid Mohamad FCJ:

On 23 October 1987, the appellant (judgment creditor) obtained a judgment against the respondent (judgment debtor) for the sum of RM2,963,054.86 with interest thereon at the rate of 16.5% per annum from 1 December 1985 until the date of realisation.

On 28 March 1996, the appellant took out a bankruptcy notice and served it on the respondent on 3 June 1996.

On 7 June 1996 the respondent served on the appellant an "Affidavit On Application To Set Aside Bankruptcy Notice" pursuant to r. 95 of the Bankruptcy Rules 1969 claiming that the respondent had a counterclaim against the appellant which the respondent could not set up in the action in which the judgment was obtained.

On 10 June 1996, the respondent served on the appellant a notice pursuant to s. 3(2)(ii) of the Bankruptcy Act 1967 alleging that the bankruptcy notice was incorrect and excessive in that the sale of the respondent's shares and dividends on the shares had not been taken into account in the bankruptcy notice and that the appellant had not given a proper breakdown of the sales of the shares.

The respondent filed affidavits in reply in relation to both the r. 95 affidavit and the notice.

On 19 March 1997 the senior assistant registrar dismissed the respondent's r. 95 affidavit and the notice and pursuant to r. 95(2) declared that the act of bankruptcy was committed on 19 March 1997.

The respondent appealed to the judge in chambers.

At the hearing of the appeal before the learned judge, the respondent, through a new solicitor orally raised two preliminary objections. The first was that the sum demanded in the bankruptcy notice was wrong as it included statute-barred interest and, secondly, that the appellant had not obtained prior leave of court under O. 46 r. 2(1)(a) of the Rules of the High Court ("RHC 1980") before instituting bankruptcy proceedings. The second preliminary objection was later abandoned after the appellant produced the order granting the leave.

On 9 July 1997 (within six months of the act of bankruptcy) the appellant filed its creditor's petition.

On 19 August 1997 the first preliminary objection was dismissed by the learned judge.

On 26 August 1997 the respondent filed an appeal to the Court of Appeal against the learned judge's decision on 19 August 1997 dismissing the first preliminary objection. The Court of Appeal allowed the respondent's appeal on 17 January 2000.

The appellant filed a notice of motion applying for leave to appeal to this court against the decision of the Court of Appeal on 17 January 2000. This court granted leave to appeal to the appellant on 17 September 2001 on the following questions:

(i) whether the second limb of s. 6(3) of the Limitation Act 1953 is relevant and applicable to bankruptcy proceedings; and

(ii) whether the impugned bankruptcy notice is valid under the provisions of s. 3(2)(ii) of the Bankruptcy Act 1967 if the judgment debtor does not dispute that the claim stated in the bankruptcy notice is excessive within seven days from the date of service of the bankruptcy notice. (my own translation).

First Question

On the first question, the learned judge held:

The matter before me relates to bankruptcy action taken by the judgment creditor. In my view, going by the meaning of "writ of execution" in Order 46 rule 1 of the Rules of the High Court 1980, bankruptcy actions do not come within the meaning of writ of execution and there may be no need even to get leave under Order 46 r. 2 to proceed with the bankruptcy actions. The issue of a bankruptcy notice is not a form of execution (see Re A Bankruptcy Notice[1988] 1 QB At page 387.) (Page 764 of the Supreme Court Practice 1997, vol.1).

As seems clear to me that "action" under section 6(3) of the Act does not cover execution proceedings and what more the bankruptcy actions, it follows therefore that the bankruptcy actions do not come within the ambit of section 6(3) of the Act and is therefore not applicable.

As section 6(3) of t