Professional Documents
Culture Documents
(COMMERCIAL DIVISION)
SUIT NO: 28NCC-876-10/2011
GROUNDS OF JUDGMENT
b)
c)
Brief Background
According to the Petition filed by the Petitioner the Respondent is
indebted for the sum of RM127,000.00 together with interest at the
rate of 4% on the said sum from 28.9.2005 until the date of realization.
Preliminary objection
The Learned counsel for the Respondent raised the following
preliminary objections:a)
b)
b)
and between parties, that part of the title which consists of the matter or
matters may be omitted.
(3) Where there are more plaintiffs than one, it shall be sufficient to
state the full name of the first followed by the words "and others", and
similarly with respect to defendants.
(4) Every affidavit must be expressed in the first person and must state
the place of residence of the deponent and his occupation or, if he has
none, his description, and if he is, or is employed by, a party to the
cause or matter in which the affidavit is sworn, the affidavit must state
that fact.
(4A) In the case of a deponent who is giving evidence in a professional,
business or other occupational capacity the affidavit may, instead of
stating the deponent 's place of residence, state the address at which
he works, the position he holds and the name of his firm or employer, if
any.
(5) Every affidavit must be divided into paragraphs numbered
consecutively, each paragraph being as far as possible confined to a
distinct portion of the subject.
(6) Dates, sums and other numbers must be expressed in an affidavit
in figures and not in words.
(7) Every affidavit must be signed by the deponent and the jurat must
be completed and signed by the person before whom it is sworn.
(8) A jurat must be in one of the forms in Form 78..
For the purpose of the Petition O40 RHC is applicable. The solicitor
being of Chinese descent, translated and explained the Affidavit to
The parties had entered into a Sale and Purchase Agreement dated
sometime in October 2003 whereby the Petitioner was the Purchaser
and the Respondent, the Vendor. The aforesaid Judgment sum of
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This presumption is rebuttable and the onus will then shift onto the
Respondent to show that it is able to pay the debt and serve an
affidavit in opposition to the Petition. According to the case of
Morgan Guaranty Trust Co of New York v. Lian Seng Properties
Sdn Bhd [1991] 1 MLJ 95, prima facie a creditor, like the Petitioner
here, who has not been paid has the right to file a petition for windingup whatever its other motives may be. In the instant case there is
a Letter of Guarantee whereby the Respondent had unconditionally
and irrevocably guaranteed to pay the Petitioner on demand all sum
remaining unpaid towards the purchase of solvents and chemicals by
the principal debtor. Justice Abdul Malik Ishak JCA in the case of
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn
Bhd [2010] 1 LNS 360 said that,
The test to ascertain commercial insolvency is rather simple. It is
this. That the company is unable to meet the current debts as they
fall due. And such a company may still be categorised as unable
to pay its debts even though the company has substantial wealth
which cannot be realised immediately and even though on
liquidation the company will be able to meet all its liabilities..
t.t.
( HASNAH BINTI DATO MOHAMMED HASHIM )
Judge
High Court of Malaya
Kuala Lumpur.
15th June 2012
Counsels:
For the
Respondent/Appellant:
Venu Nair
S.H. Saw
Official Receiver
-
Azmi Mashud
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