JUDGMENT

This is the appellant/defendant's application by way of summons in chamber for an order that the appellant be allowed an extension of time to file his memorandum of appeal.

The facts leading to this application are as follows. On 14th April 2006, the respondent/plaintiff obtained a judgment against the appellant for a sum of RM160,000.00 with cost after a full hearing vide Tindakan Saman No. 52-617-2001. Dissatisfied with the said judgment, on 19th April 2006 the appellant filed a notice of appeal. Pursuant to the said judgment, the respondent initiated a bankruptcy proceeding against the appellant on 30th November 2006 to execute the judgment on account of the appellant's failure to pay the judgment sum. On 12th February 2007, the appellant's solicitors wrote a letter to the Batu Pahat Sessions Court Registrar applying for the relevant Notes of Proceedings and the Grounds of Judgment. Two days later, ie, on 14th February 2007, the appellant's solicitors received Form 141 from the Registrar of the Batu Pahat Sessions Court dated 28th June 2006 (exhibit NLH-6, Encl. 9), informing the appellant that the said documents were ready and available.

It is the appellant's contention that he did not receive the said Form 141 Notice on or about the 28th June 2006 but only on the 14th February 2007 upon which thereafter the requisite deposit amounting to RM250.00 was duly paid into court on 27th February 2007. The appellant further contended that in view of the same, the 14 days period in which to file the memorandum of appeal should run from the 14th February 2007, leaving him the latest until 6th March 2007 to file the same. Accordingly that would leave a delay of 17 days up to the time of filing this application for an extension of time to file the memorandum of appeal (Enclosure 9).

However it is the respondent's submission that the appellant's averments lacks credibility. His (respondent) solicititor's office received the same notice on the 30th June 2006. The said notice was forwarded to the appellant's address as was provided by the appellant.

Additionally in the course of the hearing of this application on 19th July 2007, learned counsel for the appellant informed the court that the appellant did indeed received the said notice in June 2006. It cannot be earlier than 28th June 2006, for that was the date the notice was issued by the court. Thus it is only safe to conclude that the notice in Form 141 was received by the appellant on 30th June 2006. This leaves a delay of 8 months and 29 days up to the date of filing of this application.

In this respect I am inclined to be with the respondent's submission. Even this court's records shows that the said notice which was also extended to this court, was received by the court's registry on the 30th June 2006. There is no reason for the Batu Pahat Sessions Court Registrar not to issue the said notice on the same date as those issued to this court and the respondent's solicitors. Therefore it is my findings that the appellant did indeed received the said notice on 30th June 2006. Be that as it may, by all accounts there was a delay and the appellant failed to file his memorandum of appeal as prescribed by law.

The issue now is whether it is appropriate, in the circumstances of the case, to allow the applicant's application to extend the 14 days period for filing the memorandum of appeal. Learned counsel for the appellant concedes that there has been a delay on the part of the appellant but it occurred without any intention to disregard the provision of the law. For the purpose of this application, O. 55 r. 2 of the RHC provides the time frame within which the appellant has to file his memorandum of appeal:

2(1) The appellant shall, within fourteen days from the date of service on him of the notice in Form 141 under Order 49, rule 2 sub-rule (4) or rule 3 sub-rule (2) of the Subordinate Courts Rules 1980 (as the case may be), file in the High Court in duplicate a memorandum of app