JUDGMENT

Ahmad Maarop JCA:

The Facts Of The Case

[1] The brief facts of the case are these. On 7 July 2005, the petitioner (respondent in this appeal) obtained a summary judgment against the respondent (appellant this appeal) and five other defendants for the sum of RM770,000 together with interest at 8% per annum from 18 December 2004 until full satisfaction and costs, in Pulau Pinang High Court Civil Suit No. 22-48-05. On 25 August 2005 the judgment sum together with interest stood at RM812,191.78.

[2] On 25 August 2005, the respondent served on the appellant a notice pursuant to s. 218 of the Companies Act 1965 (the Act), demanding payment of RM812,191.78 within 21 days from the date of service of the notice. The said period of 21 days lapsed and the appellant did pay not pay the sum demanded. The respondent did not receive any payment from the appellant. On 5 October 2005, the respondent filed the petition (encl. 1) to wind up the appellant. The petition and the affidavit verifying the petition were served on the appellant on 13 October 2005. The deputy registrar of the High Court issued a certificate dated 2 March 2006, certifying that all of the requirements under r. 32(1) of the Companies Winding Up Rules 1972 had been complied with. The appellant gave a notice dated 7 April 2006, of its intention to appear in the hearing of the petition. On the same date (7 April 2006), the appellant filed the notice of motion in encl. 12, applying for an order that the hearing of the petition be stayed pursuant to s. 222 of the Act. Enclosure 12 and encl. 1 were fixed for hearing on 21 June 2006. On 21 June 2006 the High Court heard arguments by the parties and adjourned the hearing to 13 July 2006. On that date the learned judge dismissed the application in encl. 12 and ordered that the appellant be wound up.

[3] Being dissatisfied, the appellant filed an appeal against the aforesaid decision of the learned judge. Hence this appeal before us.

Decision Of The Court

[4]Section 222 of the Companies Act 1965 provides:

At any time after the presentation of a winding up petition and before a winding up order has been made, the company or any creditor or contributory may, where any action or proceeding against the company is pending, apply to the Court to stay or restrain further proceedings in the action or proceeding, and the Court may stay or restrain the proceedings accordingly on such terms as it thinks fit.

[5] Learned counsel for the appellant submitted that under s. 222 of the Act, the winding-up court could stay the hearing of the winding-up petition. A number of authorities were cited by him. However, we find that only Solid Kitchen Sdn. Bhd. v. Regal Development Sdn. Bhd. [1998] 3 CLJ Supp 409 and Public Bank Bhd. v Muhibbah Meridian Sdn. Bhd. [2000] 7 CLJ 137 are relevant to the issue under consideration. Both these cases were decided by the same judge in the High Court in Kuala Lumpur.

[6] Learned counsel for the respondent submitted that the learned judge was right in dismissing the appellant's application in encl. 12 because under s. 222 of the Act, the court was only empowered to stay other proceedings pending against a company which was in the process of being wound-up, not the winding up proceeding against the company. In support he cited Shing Hup Hin Construction Sdn. Bhd. v. General Soil Engineering Sdn. Bhd. [1999] 1 CLJ 303, Harper Trading (M) Sdn. Bhd. v David Distribution Sdn. Bhd. [2000] 5 MLJ 334 and Quantum Far East (M) Sdn. Bhd. v. Kayla Beverly Hills Malaysia Sdn. Bhd. ; [2004] 7 MLJ 507.

[7] The issues before us are as follows:

(1) Whether s. 222 of the Act empowered the court to order the stay of the hearing of the winding-up petition in encl. 1.

(2) Whether the learned judge of the High Court was right in ordering the winding-up of the appellant in the circumstances of this case.

Whether s. 222 Of The Act Empowered The Court To Order The Stay Of Winding-up Petition.

[8] In Solid Kitchen (supra), the petition