DALAM MAHKAMAH RAYUAN MALAYSIA

(Bidang Kuasa Rayuan)

RAYUAN SIVIL NO: xx/2017

My Name (No. K/P : xxxx) …....... Perayu

AFFIN BANK BERHAD (No. Syarikat : 25046-T) …....... Responden

Dalam Mahkamah Tinggi Malaya di Alor Setar

Dalam Negeri Kedah Darul Aman, Malaysia

Perkara Kebankrapan No: xx/2015

My Name …….…. Perayu / Penghutang Penghakiman

(No. K/P : xxxx)

AFFIN BANK BERHAD ……….. Responden / Pemiutang Penghakiman

(No. Syarikat : 25046-T)

HUJAHAN BERTULIS PERAYU

( APPELLANT’S WRITTEN SUBMISSION )

A) FOREWORD

This is an appeal against the decision of the Commissioner of Justice which rejected my Appeal to Judge in
Chambers against the decision of the Senior Assistant Registrar who rejected my Summons in Chambers application
to set aside the Creditor’s Petition on the basis that the Judgement Debtor was served with an expired Notice of
Bankruptcy.
B) ISSUES IN SUBMISSION

a. Was the Notice of Bankruptcy served expired?

b. Was the Judgement Debtor aware of the Notice Of Bankruptcy before it expired?

c. Is a Notice of Bankruptcy that was served expired still potent?

C) SUBMISSION

Was the Notice of Bankruptcy served expired?

1. During the hearings, the respondent had always maintained in all pleadings and all submissions that the Notice
was not served expired, even though they did not offer a better method of calculation of the dates.

2. However, after scrutinising our calculation table in detail, (page 84 appeals record) the Commissioner of Justice
conceded with the Appellant’s contention that the Notice of Bankruptcy was served expired. For clarity we quote the
Commissioner of Justice’s comment (on paragraph 9 of her Grounds of Judgment)

But I agree with the appellant that the 7th (last) day of the 7-day period falls on Tuesday 15th December; and this
means that the effective date of service of the bankruptcy notice fell on 16th December.

3. On 16th December 2015, the Notice of Bankruptcy has expired by 2 days.

We are in full agreement with the Commissioner of Justice on her finding.

Was the Judgement Debtor aware of the Notice Of Bankruptcy before it was expired?

4. Where the Commissioner of Justice mentioned in paragraph 15 her Grounds of Judgement that

There is no allegation that the Appellant was unaware of the bankruptcy notice….

this is where she fell into error.

5. It is wrong to assume that the Judgement Debtor was aware of the Bankruptcy Notice when the burden of proof
lies with the Judgement Creditor to allege and prove. However in this instant case there was no allegation, no proof
and no admission that the appellant was aware of the bankruptcy notice earlier in all pleadings.

6. From this wrong assumption, it follows that the authority cited by the honourable Commissioner of Justice which
is

Kamaruddin b. Mohamed v United Motor Works (M) Sdn. Bhd [1982] 1 MLJ 126 cannot be applied in this instant
case.

Is a Notice of Bankruptcy that was served expired still potent?

7. The Commissioner of Justice said (on paragraph 13 of her Grounds of Judgment) that :-

when the postings were effected, the bankruptcy notice was still valid, I, therefore, rule that the service is good
service; and it is immaterial that the mere fact that the ‘deemed effective date’ of the service fell outside the validity
period of the bankruptcy notice.

8. By saying that the “deemed effective date” is immaterial, she has taken upon herself to diminish the importance of
the terms set out in the Court Order which allows the Substituted Service. Past authorities have shown that in a
Bankruptcy case, all terms have to be strictly followed.

9. If the 7-day Deeming Clause is ignored, it is impossible for the Petition to state the exact date the Act of
Bankruptcy was committed

10. It is possible that the Commissioner of Justice had confused the service of a Notice of Bankruptcy with a service
of a Writ.

11. If a Notice of Bankruptcy that was served expired is still potent, when will it cease to be potent, is it 2 days after
expiry or 5 days after expiry? As shown here, this lack of objectivity cannot be allowed to stand.
12. Therefore, clearly the boundary of which a Notice of Bankruptcy is still potent must be at the date of expiry
itself.

13. This concludes that a Notice of Bankruptcy that was served expired is no longer potent and has no effect,
therefore no Act of Bankruptcy was ever committed.

E) CONCLUSION

14. As the Notice of Bankruptcy was served expired and has no effect, it follows that there was no Act of
Bankruptcy committed which then follows that the Judgement Creditor is not entitled to file the Creditor’s Petition,
which then follows that the Adjudicating Order and Receiving Order (AORO) should not have been entered.

Therefore it is only right and just that the AORO must be annulled.

15. The appellant prays that :-

this appeal is allowed with costs of RM 15,000

the Creditor’s Petition is set aside

the Commissioner of Justice’s decision is reversed

the Senior Assistant Registrar’s decision is reversed

the Adjudication Order and Receiving Order is annulled

………………..

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