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RE HO WENG KEONG, EX P MARKETLINK (M) SDN BHD

[1993] 1 MLJ 60 Court: MYHC Judges: LAMIN J Judgment Date: 6/2/1992

Cases referring to this case Annotations: All CasesCourt: ALL COURTS Sort by: Judgment Date (Latest First) Treatment Case Name Citations RE SHARMA KUMARI SHUKLA; EX P DATO' ABDULLAH HISHAN BIN HAJI MOHD HASHIM (NO 2) BATHAMANI A v P SUPPIAH

Court

Date

Signal

Referred

[2000] 6 MLJ 391

MYHC

15/5/2000

Referred Referred

[2000] 6 MLJ 427

MYHC MYHC

7/9/1999 21/11/1994

RE KOH KIM KUAY, EX [1995] 1 MLJ 792 P MBF FINANCE BHD RE TEOH THEAN PENG, EX PARTE D & C LEASING SDN BHD [1993] 2 MLJ 1

Not Followed

MYHC

4/6/1993

Cases considered by this case Annotations: All CasesCourt: ALL COURTS Sort by: Judgment Date (Latest First) Treatment Case Name Citations Not Followed SOBRI BIN ARSHAD v ASSOCIATED TRACTORS SDN BHD [1991] 3 MLJ 32

Court MYHC

Date 14/1/1991

Signal

Referred

CHIN YOON TIMBER CO v OVERSEAS LUM- [1978] 2 MLJ 173 BER BHD

MYOCJ 17/4/1978

Legislation considered by this case Legislation Name & Jurisdiction Bankruptcy Act 1967 Bankruptcy Rules 1969 Companies (Winding-up) Rules 1972 Catchwords & Digest

Provisions ss 5(1)(c), 6(1), (7) rr 106, 108, 115 r 26

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Bankruptcy -- Petition -- Affidavit -- Affidavit verifying petition sworn before presentation of petition -Whether petition valid -- Whether verifying affidavit had to be affirmed after presentation ofpetition -Whether second affidavit verifying petition could correct firstaffidavit Held, allowing the creditor's petition: (1) nowhere in the Bankruptcy Act 1967 or the Bankruptcy Rules 1969 is it stated that the affidavit verifying the creditor's petition must be affirmed after the filing or presentation of the creditor's petition. If the 1969 Rules demand that the affidavit shall be affirmed and filed only after the presentation of the creditor's petition, then it shall be so stated; (2) in this case all the statements in the creditor's petition were already before the deponent of the first affidavit at the time he affirmed the first affidavit. There was therefore no reason for refusing to accept the first affidavit; (3)there is no statutory provision imposing a limitation of six months from the act of bankruptcy within which an affidavit verifying the creditor's petition must be affirmed; (4)accordingly the first affidavit was good in law and if the first affidavit failed, the second affidavit served to correct the error made by the first affidavit; (5) the 1967 Act and the 1969 Rules are silent on the question of applying for an extension of time to file the second affidavit. Such an application was unnecessary as time was not the essence for the filing of a verifying affidavit. Summary: In these bankruptcy proceedings, the creditor's petition was dated 3 July 1991 and the affidavit verifying the petition was also affirmed on the same day ('the first affidavit'). Both the creditor's petition and the affidavit were filed on 4 July 1991. In December 1991, the judgment debtor applied to strike out the creditor's petition on the ground that the first affidavit was sworn before the presentation of the creditor's petition. On 26 February 1992, the judgment creditor affirmed a second affidavit to verify the same creditor's petition ('the second affidavit'). The judgment debtor argued that filing the second affidavit was an admission that the first affidavit was bad. The judgment debtor also contended that the second affidavit was bad because it was not affirmed within six months of the alleged act of bankruptcy. The judgment creditor had also applied for an extension of time to file the second affidavit.