DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA KES KEBANKRAPAN NO: /2013

Transcription

1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA KES KEBANKRAPAN NO: /2013 PER : YASMIN PEREMA BINTI ABDULLAH (NO. K/P: ). PERAYU/ PENGHUTANG PENGHAKIMAN EX-PARTE: HONG LEONG BANK BERHAD (No. Syarikat: X) (yang telah mengambil alih segala asset dan liabiliti Credit Corporation Malaysia Berhad melalui dua Perintah Letakhak bertarikh 29/12/2000 dan 27/7/2004).RESPONDEN/ PEMIUTANG PENGHAKIMAN 1

2 GROUNDS OF JUDGMENT Introduction [1] This is an appeal filed by the Judgment Debtor (JD) against the decision of the learned Senior Assistant Registrar that was given on dismissing the JD s application to set aside bankruptcy notice of and in the same application, to set aside the Receiving Order and Adjudication Order (RO & AO) made against the JD on [2] The parties are the Appellant (JD) and the Respondent who is the Judgment Creditor (JC). Facts [3] It is not in dispute that the JC s initial action was based on a breach of Tenancy Agreement of A judgment was entered against the JD on for the sum of RM51, as at including interest of 8% per annum in monthly rest calculated on daily amount outstanding from until full 2

3 settlement and cost of RM1, The Bankruptcy Notice was filed on at this Shah Alam High Court which was granted on the same day. [4] Based on the JC s written submission, the JC had in 2005 executed through one Writ of Seizure and Sale at the Kuala Lumpur Session Court (Execution No: ) but was withdrawn due to payment made by JD on for RM10, Another bankruptcy notice was filed against the JD at the Kuala Lumpur High Court No.D but was withdrawn with liberty to file afresh after an agreement for JD to make payment on until [5] The JC claimed that the JD again failed to make payments and filed a Bankruptcy Notice that was served on JD by way of one main newspaper Berita Harian advertisement on and by way of personal service on [6] The JC s petition was issued to JD on , 6 months after the Bankruptcy Notice was filed and the RO & AO was recorded on

4 Cause Papers [7] The cause papers filed are as follows: (a) Penghakiman Mahkamah Sesyen Kuala Lumpur bertarikh (selepas ini dirujuk sebagai Penghakiman tersebut ); (b) Permintaan Mengeluarkan Notis Kebankrapan bertarikh (selepas ini dirujuk sebagai Permintaan tersebut ); (c) Notis Kebankrapan bertarikh (selepas ini dirujuk sebagai Notis Kebankrapan tersebut ); (d) Perintah Mahkamah bertarikh untuk lanjutan masa Notis Kebankrapan (selepas ini dirujuk sebagai Perintah Lanjutan Masa tersebut ); (e) Perintah Mahkamah bertarikh untuk penyampaian ganti Notis Kebankrapan (selepas ini dirujuk sebagai Perintah Penyampaian Ganti-BN tersebut ); (f) Affidavit Penyampaian yang diikrarkan oleh Mohd Rizuan bin Jaafar pada (selepas ini dirujuk sebagai Affidavit Penyampaian-BN tersebut ); 4

5 (g) Petisyen Pemiutang bertarikh (selepas ini dirujuk sebagai Petisyen Pemiutang tersebut ); (h) Affidavit Kebenaran Kenyataan Di Dalam Petisyen yang diikrarkan oleh Chin Kar Hooi pada (selepas ini dirujuk sebagai Affidavit Penyampaian-BN tersebut ); (i) Perintah Mahkamah bertarikh utnuk penyampaian ganti Petisyen Pemiutang tersebut (selepas ini dirujuk sebagai Perintah Penyampaian Ganti- Petisyen tersebut ); (j) Affidavit Penyampaian yang diikrarkan oleh Mohd Ridzuan bin Jaafar pada (selepas ini dirujuk sebagai Affidavit Penyampaian-Petisyen Pemiutang tersebut ); (k) Perintah Penerimaan Bagi Petisyen Pemiutang bertaikh (selepas ini dirujuk sebagai Perintah Penerimaan tersebut ); (l) Perintah Penghukuman bertarikh (selepas ini dirujuk sebagai Perintah Penghukuman tersebut ); (m) Saman Dalam Kamar bertarikh (Lampiran 33) (selepas ini dirujuk sebagai Permohonan JD tersebut ); 5

6 (n) Afidavit Sokongan yang diikrarkan oleh Yasmin Perema Binti Abdullah pada (selepas ini dirujuk sebagai Afidavit Sokongan JD tersebut ); (o) Afidavit Jawapan Pemiutang Penghakiman yang diikrarkan oleh Esoda a/p Krishnasamy pada (selepas ini dirujuk sebagai Afidavit Jawapan JC tersebut ); (p) Afidavit Jawapan yang diikrarkan oelh Yasmin Perema Binti Abdullah pada (selepas ini dirujuk sebagai Afidavit Jawapan JD tersebut ); (q) Afidavit Jawapan Pemiutang Penghakiman Kedua yang diikrarkan oleh affirmed by Esod a/p Krishnasamy pada (selepas ini dirujuk sebagai Afidavit Jawapan JC (2) tersebut ). (r) (s) Written submission of JD; and Written submission of JC. JD s Submission [8] The learned counsel for JD submitted the only ground for the appeal, that is the JC had failed to obtain leave of the Court under Order 46 r. 2(1)(a) of the Rules of Court 2012 (ROC 2012) before 6

7 commencing the bankruptcy proceedings against JD as the judgment obtained was more than six years. [9] The counsel raised the issue as to whether the JC is allowed under section 3 (1)(i) of the Bankruptcy Act 1967 to issue a bankruptcy notice when there is a time lapse between the date of the judgment and the date of the bankruptcy notice which is 11 years and 8 months. The counsel referred to the two Federal Court cases: Dr. Shamsul Bahar Bin Abdul Kadir v RHB Bank Berhad [2015] 4 CLJ 561 and Amfraser Securities Pte Ltd v Poh Gaik Lye [2016] MLRA 995 and submitted that the JC cannot lawfully file the bankruptcy notice after a lapse of six years or more from date of judgment unless prior leave of the Court pursuant to Order 46 r. 2(1)(a) of the ROC 2012 has been obtained. [10] The counsel for JD submitted the effect of failure to obtain leave as required, arguing that it will amount to the subsequent action as incompetent and relied on the authority V. Gopal, Re: Ex: Bank Buh (M) Bhd [1987] 1 CLJ 602 where it was held that it was a requirement for a judgment creditor to obtain leave to issue execution under Order 46 r. 2(1)(a) of Rules of High Court 1980 before commencing with 7

8 bankruptcy proceedings on a judgment entered more than six years earlier. [11] The counsel also referred to the case Wee Chow Yong, Ex P; Public Finance Bhd [1990] 1 CLJ 176; [1990] 3 CLJ, where Edgar Joseph Jr J (as then was) held in terms similar to VC George J in the V Gopal (supra) case that made reference to the English cases on the parallel English law which defines a creditor who has obtained a final judgment under section 3(1)(i) to mean that the petitioner is not entitled to enforce the judgment if he has not obtained the requisite leave as prescribed by Order 46 r.2(1)(a) where the bankruptcy notice was served after six years from date of judgment. Based on the foregoing two decisions, the Court heard the counsel s submission that a creditor who has obtained a judgment and sat on it for more than six years in West Malaysia must obtain leave of Court before he can commence bankruptcy proceedings under section 3(1)(i) of the Bankruptcy Act In addition, the counsel submitted that the law pertaining to section 3 of the said Act 1967 had always been in place. [12] The counsel for the JD also referred to the Federal Court Case of Low Mun v. Chung Khiaw Bank Ltd [1987] 2 CLJ 400; [1987] 8

9 CLJ (Rep) 172 where he pointed to the decision of Mohamed Azmi SCJ on section 3(1)(i) of the Act at page 176, It is also essential that at the time of issue of the bankruptcy notice, the judgment creditor must be in the position to issue execution see Re Woodall, ex parte Woodall [1884] 13 QBD 479. [13] The counsel heavily relied on Dr Shamsul Bahar Bin Abdul Kadir vs RHB Bank Berhad [2015] 4 CLJ 561 stating that the Federal Court had reverted the position of Order 46 r. 2 (1)(a) of the ROC 2012 and pointed to the analysis where it derived its decision. The counsel also submitted that based on Dr. Shamsul Bahar s (supra) case, the decision revolved around the requirement for leave from Court. [14] The counsel for the JD further sought to refer to the case Amfraser Securites Pte Ltd vs Poh Gail Lye 2016 MLRA 995, the Federal Court decision and quoted as follows, (1) The notice was issued some 10 years and five months after the judgment had been obtained. It was more that six years after the judgment was obtained. No prior leave of court 9

10 to issue a writ of execution to enforce a judgment pursuant to O 46 r. 2(1)(a) of the Rules of the High Court 1980 ( RHC ) had been obtained. (paragraph 11, page 321 of the judgment). (2) The phrase who is for the time being entitled to enforce a final judgment in the proviso to s 3(1)(i) of the Bankruptcy Act 1967 must be a person who is entitled to enforce a final judgment without prior leave of court. If when a bankruptcy notice is issued, the judgment is more than six years old, the judgment creditor is not in a position to execute the judgment without the prior leave of court. In such a case, leave under O 46 r 2 of the RHC must be obtained. In the instant case, since the notice was issued some 10 years and five months after the judgment had been obtained, the appellant was not a person who for the time being was entitled to enforce a final judgment in the proviso to s 3(1)(i) of the Bankruptcy Act In such a case, leave under O 46 r 2 of the RHC should have been obtained by the appellant. Since no leave had been obtained, it was not in a position to execute the judgment. Thus, it was not entitled to issue the notice. On this ground alone, the notice 10

11 ought to be set aside. (paragraph 15, page 323 of the judgment). [15] Counsel for the JD submitted that based on the Federal Court s decisions, the bankruptcy notice is to be set aside as it is bad in law, a nullity ab initio and that the RO & AO cannot stand and must be set aside. Respondent s/jc s counsel: [16] The JC in this case advanced several grounds, the main ground is that the leave from the Court is not needed. The JC claimed that at all material time the Bankruptcy Notice had been served within the extended period. The JC objected to JD s application for the reason that it was done after 2 years and 7 months that is after the RO & AO had been entered on and without giving any reasons to support the application to set aside. JC submitted that JD s application is without bona fide. [17] JC also submitted that the Order had been issued and registered and thus cannot be set aside or amended except to correct 11

12 clerical error and arithmetic as the Court had functus officio unless there s a provision to say otherwise. [18] In relation to the claim that there was a long delay by the JD, the JC referred to two cases namely, Re Jonathan Chelliah Ex P Industrial & Commercial Insurance (M) Bhd [2007] 7 CLJ 132 and the case of Re Seow Yin Fong: Ex Parte: United Orient Leasing Company Berhad & Another Case [1994] 2 CLJ 845. In the former case, counsel pointed to the decision: The debtor has all the opportunities to contest the judgment creditor s claim at the earlier stages. This court must therefore consider the interest of the creditors.who will be greatly prejudiced should the adjudication and receiving orders be set aside at this juncture. (emphasis made by JC) [19] The JC s main contention is that the Bankruptcy Notice filed after 10 years does not hinder JC to file against the JD as the issuance of bankruptcy notice is not a writ of execution but a judgment. The counsel argued that since it is an action to bring upon a judgment, it is within the limitation period of 12 years and therefore no 12

13 leave is required to be obtained and relied on the case Perwira Affin Bank v Lim Ah Hee [2004] 3 MLJ 253. [20] The JC submitted the authority, the case of Ambank (M) Bhd (Formerly known as AmFinance Bhd) v Tan Tem Son & Another Appeal [2013] 3 MLJ 179 that the bankruptcy proceeding is not a writ of execution within the meaning of Order 46 rule 2 of the ROC and since it is an action to enforce a judgment, it comes under section 6(3) of the Limitation Act 1953 which provides that the limitation is of 12 years and therefore the leave from Court is not needed. [21] The JC s contention is heavily placed on a recent case of (Appeal No. B-03(IM)-12-01/2016), Hamzah Bin Mat Sah v Ambank (M) Berhad and quoted almost the whole decision in its written submission which is partly reproduced: [11] The main issue that arose for determination in this appeal had been concerned with whether leave was required to be obtained by the JC from the court before it could proceed to execute Judgment against the JD after 6 years had lapsed from 13

14 the date of the judgment pursuant to Order 46 Rule 2 of the Rules of Court 2012 ( ROC 2012 ). [13] It was contended by the learned counsel for the JD that the ruling in the Dr Shamsul case [supra] had retrospective effect in the sense that it had the effect of requiring the JC to first obtain leave of court before it could execute against the JD upon the judgment that it obtained against the JD more than 6 years ago. [14] It must be noted that before the apex Court decided the way it did in the Dr. Shamsul case [supra], the then prevailing judicial review on the matter was encapsulated in the decision of the Federal Court in the case of Ambank (M) Bhd v Tan Tem Son & Anor [2013] 3 CLJ 317 where it was held that a bankruptcy action does not fall within the ambit of a writ of execution within the meaning of O.46 r.2 of the Rules of High Court Premised on that ruling, the issue of whether a JC was required to obtain prior leave of Court before it could begin a bankruptcy proceedings based on a final judgment which was 14

15 obtained more than six years prior did not therefore arise. In short, no such leave was necessary to be obtained by the JC. [15] After considering the able submissions by both learned counsel, we were of the view that the ruling in the Dr. Shamsul case [supra] was generally prospective. [16] It is apparent that there was nothing in the decision of the apex Court in Dr. Shamsul case [supra] that it was meant to have a retrospective effect.. [17] If indeed it was to be applicable retrospectively, it could only be so applied in a very limited and circumscribed circumstances.. (emphasized by counsel) [22] The counsel for the JC submitted that following the recent case of Hamzah Bin Mat Sah v Ambank (M) Berhad (supra), Oleh yang demikian, berdasarkan kes yang telah diputuskan tersebut, walaupun Mahkamah bersetuju bahawa adalah satu keperluan untuk JC mendapatkan kebenaran untuk 15

16 Penghakiman yang melebihi 6 tahun, prinsip ini hanya terpakai kepada kes-kes yang difailkan selepas kes Dr. Shamsul. Ia tidak terpakai retrospektif. Court s Finding [23] Based on the facts before this Court, it cannot be disputed that the bankruptcy notice was issued more than six years after the judgment was obtained on There was an action taken in 2005 where JC filed for Writ of Seizure and Sale but withdrawn as JD made payment on A bankruptcy notice was then issued on but was also withdrawn. The bankruptcy notice was only issued some 11 years and 8 months on In other words, on the day the bankruptcy notice was issued, more than six years had lapsed from date of judgment. [24] The JD in her Summon in Chambers of for application to set aside and/or annul the Bankruptcy Notice stated among others, 1. Pemiutang Penghakiman tidak mendapatkan kebenaran Mahkamah yang Mulia ini untuk mengeluarkan Notis Kebankrapan bertarikh selepas tempoh 10 16

17 tahun dari Penghakiman bertarikh selaras dengan Aturan 46 kaedah 2 Kaedah-Kaedah Mahkamah 2012; 2. Pemiutang Penghakiman tidak berada dalam kedudukan untuk melaksanakan Penghakiman tersebut selepas tempoh enam (6) tahun dari Penghakiman bertarikh tanpa kebenaran Mahkamah yang Mulia ini. [25] In the affidavit filed in support of her application to set aside the bankruptcy notice, JD deposed as follows: 6. Saya dinasihati oleh peguamcara saya dan sesungguhnya percaya bahawa Notis Kebankrapan tersebut adalah tidak dan perlu diketepikan dengan serta merta di mana selaras dengan Aturan 46 kaedah 2(1)(a) Kaedah-Kaedah Mahkamah 2012 dan kehendak mandatori Seksyen 3(1)(i) Akta Kebankrapan 1967 di mana Pemiutang Penghakiman yang berniat untuk menguatkuasakan mana-mana Penghakiman atau Perintah selepas tempoh enam (6) tahun atau lebih sejak tarikh Penghakiman atau Perintah, perlu mendapatkan suatu kebenaran Mahkamah yang 17

18 Mulia ini untuk melaksanakan Penghakiman atau Perintah tersebut. 7. Saya sesungguhnya percaya dan menyatakan bahawa JC gagal untuk memohon kebenaran Mahkamah yang Mulia ini dan Notis Kebankrapan bertarikh telah dikeluarkan tanpa kebenaran Mahkamah yang Mulia ini selepas lebih kurang 10 tahun dari tarikh Penghakiman bertarikh untuk melaksanakan Penghakiman tersebut terhadap saya.. [26] The JC did not deny that no prior leave to execute under Order 46 rule 2(1)(a) of the ROC 2012 was obtained but contended that the bankruptcy notice and the proceedings involved including the RO & AO was made prior to the Dr Shamsul Bahar (supra) case which was decided on In addition, the Counsel argued that the leave from Court following Order 46 r. 2(1)(a) is not needed, relying on the authorities Perwira Affin Bank v Lim Ah Hee [2004] 3 MLJ 253 and Ambank (M) Bhd (Formerly Known as AmFinance Bhd) v Tan Tem Son & Another Appeal in supporting the contention that a bankruptcy proceeding is not a writ of execution but an action on 18

19 judgment and as such, bankruptcy notice can be served without leave within the 12 years period. [27] In summary, the cases put forward by the JC encompasses the law that the bankruptcy proceeding is not a writ of execution and therefore Order 46 r.2 of the ROC 2012 did not apply to bankruptcy proceedings; the bankruptcy proceeding is an action upon a judgment within the meaning of section 6(3) of the Limitation Act 1953 where the limitation period is of 12 years and that there was nothing in Dr. Shamsul s case to have a retrospective effect. [28] The main contention here is that when the bankruptcy notice was issued after six years, whether the JC is entitled to enforce the judgment within the meaning of section 3(1)(i) of the Bankruptcy Act 1967 without prior leave of court. [29] Section 3(1)(i) of the Bankruptcy Act 1967 provides: (1) A debtor commits an act of bankruptcy. (i) If a creditor has obtained a final judgment or final order against him for any amount and execution thereon not having been stayed has served on 19

20 him a bankruptcy notice under this Act requiring him to pay the judgment debtor or sum ordered to be paid in accordance with the terms of the judgment or order, and he does not within 7 days after service of the notice comply with the requirements of the notice.. Provided that for the purposes of this paragraph any person who is for the time being entitled to enforce a final judgment or final order shall be deemed to be a creditor who has obtained a final judgment or final order;. [30] There have been a number of cases decided whether a person who is entitled to enforce a judgment requires the prior leave of court. However before we delve into the cases, a quick look at the law requiring the leave following Order 46 r.2(1)(a) of the ROC [31] Order 46 rule 2(1)(a) of the ROC 2012 provides that, When leave to issue any writ of execution is necessary (O 46 r2) 2 (1) A writ of execution to enforce a judgment or order may not be issued without the leave of the Court in the following cases: 20

21 (a) where six years or more have lapsed since the date of the judgment or order; (b) (2) Paragraph (1) is without prejudice to any written law or rule by which a person is required to obtain leave of the Court for the issue of a writ of execution or to proceed to execution on or otherwise the enforcement of a judgment order... [32] Referring to the first paragraph of rule 2 at part (1), the words a writ of execution to enforce a judgment or order, the word writ of execution is given the meaning under rule 1 of the same Order which includes a writ of seizure and sale, a writ of possession and a writ of delivery. The term includes means that the list is not exhaustive and it had been decided that bankruptcy proceedings is covered under Order 46 rule 1: Tengku Iskandar Tengku Ahmad v Sime Bank Bhd [2001] 7 CLJ 560. [33] The writ of execution definition can be found in Black s Law Dictionary, (Second Edition) which means a writ to put in force the 21

22 judgment or decree of a court. Lord Denning in Re Overseas Aviation Engineering (GB) Ltd [1962] 3 ALL ER 12 stated that execution means, quite simply, the process for enforcing or giving effect to the judgment of the court. [34] Prior to the case of Dr. Shamsul Bahar (supra), the cases attributed by the counsel for the JD which I had the benefit of reading, provides the law that a judgment creditor must be in a position to issue execution on the judgment at the time when he issued the bankruptcy notice. [35] To put it simply, this would mean that the judgment creditor who seeks to make the judgment debtor bankrupt must have in his hands a final judgment that can be enforced: Ambank (M) Berhad v Raymond Yong Kim Yoong [2007] SGHC 172 at paragraph 14. In the case where six years or more had lapsed since obtaining the final judgment or final order, the person is no longer entitled to enforce that final judgment or order unless he has obtained prior leave of the Court by virtue of Order 46 r. 2(1)(a). 22

23 [36] In the case of Ambank (M) Bhd (formerly known as AmFinance Bhd) v Tan Tem Son and another appeal [2013] 3 MLJ 179; [2013] 3 CLJ 317, which relied on the case Perwira Affin Bank Bhd v Lim Ah Sim Ah Hee [2004] 3 MLJ 253; [2004] 2 CLJ 787, the Federal Court held that the phrase any person who is for the time being entitled to enforce a final judgment in the proviso to section 3(1)(i) of the Bankruptcy Act 1967 does not require a judgment creditor to obtain leave pursuant to Order 46 r.2(1)(a) of the Rules of High Court 1980 prior to initiating a bankruptcy proceeding based on a final judgment which has been obtained more than six years ago. However, the Tan Tem Son (supra) case was reconsidered by a different panel in the Federal Court in the case of Dr. Shamsul Bahar bin Abdul Kadir v RHB Bank Bhd and another appeal [2015] 4 MLJ 1 which did not follow the decision of Tan Tem Son (supra) case. [37] The case of Dr. Shamsul Bahar Bin Abdul Kadir v RHB Bank Berhad [2015] 4 CLJ 561 discussed at length the background to the proviso which entails the words execution thereon not having been stayed that was borrowed from the English Bankruptcy Act of The meaning of the words execution thereon not having been stayed was first considered by the English Court of Appeal in Re ex parte 23

24 Woodall (1884) 13 QBD 479 where it was held that a creditor must be in a position, when he issued the bankruptcy notice, to issue immediate execution upon the judgment. [38] Dr. Shamsul Bahar (supra) case also referred to the Singapore s case of Ambank (M) Berhad v Raymond Yong Kim Yoong [2007] SGHC 172 where the Singapore Rules of Court Order 46 r 2(1)(a) is in pari materia with ROC 2012 Order 46 r 2(1)(a). In that case, Ambank (M) obtained judgment against the judgment debtor in Malaysia for failing to honour his obligations under a personal guarantee. The judgment was registered in Singapore almost six years later. Ambank (M) then instituted a bankruptcy proceedings against the judgment debtor in Singapore after almost 12 years. The High Court of Singapore held that the registered judgment was no longer enforceable by execution in Singapore without leave of the court because of almost 12 years lapsed since the Malaysian judgment was registered following Order 46 r 2(1)(a) of the Rules of Court (Cap 322, 2006). [39] The learned High Court Judge of Singapore made a comparison to the old Bankruptcy Act where the words execution thereon not 24

25 having been stayed were used in contrast to its present law, under its section 61(1)(d) of the Bankruptcy Act (Cap 20,2000 Rev Ed), where the words which is enforceable by execution are used and stated that, the court had always insisted that, although the question of an execution of a judgment does not arise when a bankruptcy petition is presented, a judgment creditor who seeks to make the judgment debtor bankrupt on the basis of an unsatisfied judgment debt must have in his hands a final judgment that can be enforced forthwith or immediately. As such, where the leave of the court is required for whatever reason before a judgment may be enforced, such leave must be obtained before a person can be made bankrupt on the basis of that judgment. [40] In the case of Amfraser Securities Pte Ltd v Poh Gaik Lye [2016] 4 MLJ 314, the Federal Court held that a person who is for the time being entitled to enforce a final judgment in the proviso to section 3(1)(i) of the Bankruptcy Act 1967 must be a person who is entitled to enforce a final judgment without prior leave of court. It also held that, if when the bankruptcy notice is issued the judgment was more than six years old, then the judgment creditor is not in a position to execute the 25

26 judgment without the prior leave of court. The leave under Order 46 r.2 of the RHC must be obtained. [41] This Court finds that the counsel for the JC s submission on the issue of non-retrospective is without basis as the law requiring leave from court was in place under the Rules of Court 1980, now replaced by the ROC I agree with the counsel for the JD that section 3 of the Bankruptcy Act 1967 was the law in place but I am more inclined to say that the law under Order 46 r 1(1)(a) of the Rules of Court 1980 now replaced by ROC 2012 which provides the leave requirement had also been in place. This important element was also reflected in the case of Dr. Shamsul Bahar (supra) where the law referred was Order 46 r 2(1)(a) of the Rules of Court [42] To further strengthen my point, there have been other cases where the Court had exercised discretion in granting leave under Order 46 r 2(1)(a). In Tio Chee Heng v Chung Khiaw Bank Ltd [1981] 1 MLJ 227, a Federal Court Kota Kinabalu decision, it was an appeal from the decision of the judge to grant leave to issue execution against the appellant on two judgments entered more than six years ago. The first action was in respect of a charge to secure the 26

27 repayment of a considerable sum of money advanced to a company of which the appellant was the sole proprietor and the other action was for repayment of the overdraft granted to the appellant. The appellant never contended against the explanation by the Bank that the reason for the delay in executing judgment against him was to give him time during the negotiations for settlement and the basis for the delay in seeking leave from Court was allowed. [43] In the case of Public Bank Bhd v Seato Trading (M) SDn Bhd & Ors [1996] 1 MLJ 165, the plaintiff had applied for leave for execution against the third defendant in respect of arrears after more than six years had passed from the date of judgment. The counsel for the plaintiff submitted that although six years had lapsed from the date of the judgment, no injustice or prejudice would be caused to the third defendant to make repayment and the plaintiff was only protecting its own interest by not putting further pressure on the third defendant as it would jeopardize the settlement of the debt and that the court should not dismiss plaintiff s application because of the delay. The appeal was allowed. 27

28 [44] The law in United Kingdom as explained in Halsbury s Laws of England (Fifth Edition) on the writ of execution to enforce a judgment or order may not be issued without the permission of the court where six years or more have elapsed since the date of judgment or order, had been retained in the United Kingdom s Civil Procedure Rules 1998 Sch 1 Rules of Supreme Court Order 46 r 2(1)(a) which corresponds to our ROC [45] Based on the foregoing, I am bound by Order 42 r 2(1)(a) of the ROC 2012 and the Federal Court decisions in Dr. Shamsul Bahar (supra) case and Amfraser Securities (supra) case. I have answered the main ground in the affirmative, that is the JC who commences the bankruptcy proceedings after more than 6 years have lapsed from the date of judgment, must obtain the prior leave of Court following Order 42 r 2(1)(a) of the ROC I allowed the appeal with cost. Dated: 21 June 2017 (DATIN ZALITA BINTI DATO HJ. ZAIDAN) Judicial Commissioner Shah Alam High Court 28

29 SOLICITORS: APPELLANT : SATVINDER KAUR Tetuan Satvinder K &Associates Peguambela dan Peguamcara No. 3, Jalan Hujan Emas10 Oversea, Union Garden Kuala Lumpur [RUJ: SK/639/11/2014(L)] Tel: Fax: RESPONDENT : ROZANITA BINTI BASRUN Tetuan Thomas Ong Leong & Associates Peguambela dan Peguamcara Blok 3A02, Menara Mutiara Majestic No. 15, Jalan Othman 46000, Petaling Jaya Selangor Darul Ehsan [RUJ NO: TOL/ /OKS] Tel: Fax: