Legasi Senada Sdn Bhd v Muhammad Zahir Sanjay Bin Abdullah (WA-29NCC-1040-08/2022)

This is an appeal by Judgment Debtor (“JD”) in Enclosure 57 against the decision of the Senior Assistant Registrar (“SAR”) dismissing his application (Enclosure 41) to set-aside the Petition and the entire bankruptcy proceedings against him.

In the proceedings before the SAR, the JD’s application to set-aside the entire bankruptcy proceeding was premised on the ground that the JC had allegedly failed to attend the case management (“CM”) via email scheduled on 14.12.2023. The purpose of the CM was for the parties to update the court on the status of pending cases before the Court of Appeal (“COA”). The two COA cases are NCVC-434-09/2022 and NCVC-435-09/2022 (COA decision).

In addition to the main ground given in the JD’S application in enclosure 41, the JD has raised the two preliminary objections which are:

JC’s Affidavit in Reply (“AIR”) was filed out of time and without leave of Court.

That the request for the issuance of Bankruptcy Notice (“BN”) was deposed by the JC’s solicitor, Muhammad Aiman (Aiman) instead of the JC itself. The deposition by Aiman was not authorized by the JC. THE JC’s RESPONSE TO THE PO’s RAISED BY THE JD [4] The JD contends that the AIR must be served on him within 14 days from service of Enclosure 41 and Enclosure 42. Both Enclosure 41 and 42 was served on the JC on 21.12.2023. Therefore the 14 days from the date of service falls on 04.01.2024. (see rule 284 of the Insolvency Rules 2017, read with Order 32 rule 13(2) of the Rules of Court 2012 (“ROC”)). [5] In answer to this PO, the JC has produced an email trail and the CM minutes with the SAR which clearly shows the SAR has allowed the JC’s request for extension of time to file its AIR on or before 19.01.2024 during the CM scheduled on 11.01.2024. [6] In the light of the explanation and the email thread produced by the JC I find this PO by the JD to be misconceived. S/N KlWZjOcmEiznyOa2IPobw [7] In relation to the second PO by the JD that the JC’s AIR was deposed by the JC’s solicitor and it was done without authority, the JC replied that the contents of the JC’s AIR are within the personal knowledge of the JC’s solicitor as it relates to what transpired during the CM, which was attended by the solicitor for the JC. [8] The law on solicitors deposing affidavits on behalf of their client is clearly set-out in the case of Malayan Banking Bhd v Charterfield Corporation Sdn Bhd (2001) 3 MLJ pg 10 where the Judge held: “… I am of the view that a solicitor may depose an affidavit on behalf of the litigant if all the following conditions are fulfilled: i. the facts to be deposed must not be contentious or disputed question of facts; ii. the facts to be deposed must be form his knowledge (if the affidavit is for the purpose of being used in interlocutory proceedings, it may contain statements of information or belief with sources and grounds thereof); and iii. he is authorised to depose the affidavit by the litigant. [9] In the case of Nazlan bin Hashim & Anor v Mohamad Akmal bin Mohd Rashid (a patient and is suing through his father and S/N KlWZjOcmEiznyOa2IPobw guardian Mohd Rashid bin Hamzah) (2015) MLJU 1805 the Court held that: “(17) In respect of authorization, I would like to think, that solicitors are impliedly authorised by their client to affirm affidavits on its behalf. The client after all instructs the solicitors. This presumption is of course rebuttable, but it is for the client to raise that objection, and not their opponents, unless the latter has clear evidence to base their objections on. [10] In the case of Timbunan Alam Development Sdn Bhd v Platicorp Holiday (M) Sdn Bhd (2000) 2 MLJ 636, the Court held as follows: “it is a trite law, that a corporation can only be represented in court by its agent; who must be an authorized person to act on the instructions of the company; and it that capacity to bring or defend the actions; provided when bringing such actions, clear identity of his capacity is disclosed in bringing the action for and on behalf of the company; and which the solicitors M/s F Y Poh & Co have correctly done by signing the petition as such on behalf of the company.” [11] The above principle laid down in Timbunan Alam has been adopted in bankruptcy proceedings in the case of Francis Philips A/L AJ Philips v Bank Perusahaan Kecil & Sederhana (2008) MLJU 152. [12] Similar to the case of Nazlan bin Hashim cited earlier above, I find the PO by the JD on this issue to be misconceived, without merits and mischievous. There is clear implied authority by the JC for it’s solicitors to depose the affidavit concerning the events that transpired during the S/N KlWZjOcmEiznyOa2IPobw case since the JC word not be in a position to know what transpired during the CM. [13] Having dealt with the PO’S raised by the JD, I now will deal with the main issue raised in Enclosure 42, i.e. the alleged failure by the JC to attend the CM scheduled on 14.12.2023 and/or to send a carbon copy of the email to the JD after attending the CM. [14] In reply to the above contention by the JD, the JC has exhibited the email threads and minutes of the CM in Exhibit LS-1 which clearly show the attendance of the JC’s solicitors, whereas the JD’s contention is a bare allegations unsubstantiated by any documentary evidence. FINDINGS BY THE COURT [15] The JD’s application is premised on Order 34 rule 6 of the ROC 2012 which provides: “6(1) if, at the time appointed for pre-trial case management, any party fails to attend, the court may dismiss the action or proceedings… as the court thinks fit.” S/N KlWZjOcmEiznyOa2IPobw The operative word in the above sub-section is “may” which gives the court a discretion whether to dismiss or strike-out the proceedings. Since the SAR did not dismiss or strike-out the bankruptcy proceedings, it just show that the JC did in fact attend the CM. There was no grounds to trigger the SAR to dismiss or strike-out the Bankruptcy proceedings. [16] I find that the issues raised by the JD are mere procedural irregularities even if they were true which they evidently are untrue. The irregularities can be cured by section 131 of the IA 1967 which states that no proceedings in bankruptcy shall be invalidated by any formal defect or any irregularity, unless the court is of the opinion that substantial injustice has been caused by such irregularity. I find that the JD has not suffered any substantial injustice. [17] For the reasons aforesaid, I find that the application and the POs by the JD are without merits. Therefore, this appeal is dismissed with costs. Dated 25 March 2025 …………t.t……………………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur S/N KlWZjOcmEiznyOa2IPobw COUNSEL FOR THE JUDGMENT DEBTOR: MUHAMMAD ZAHIR SANJAY BIN ABDULLAH SOLICITORS FOR THE PETITIONER: TETUAN KAMARUDIN WEE & CO COUNSEL FOR THE JUDGMENT CREDITOR: JAY LOH SOLICITORS FOR THE RESPONDENT: TETUAN K K LIM Cases Referred to: ➢ Malayan Banking Bhd v Charterfield Corporation Sdn Bhd (2001) 3 MLJ pg 10 Ann ➢ Nazlan bin Hashim & Anor v Mohamad Akmal bin Mohd Rashid (a patient and is suing through his father and guardian Mohd Rashid bin Hamzah) (2015) MLJU 1805 ➢ Timbunan Alam Development Sdn Bhd v Platicorp Holiday (M) Sdn Bhd (2000) 2 MLJ 636 ➢ Francis Philips A/L AJ Philips v Bank Perusahaan Kecil & Sederhana

MLJU 152 Legislation Referred to: ➢ Companies Act 2016 ➢ Rules of Court 2012 Decision date: 19 September 2024 S/N KlWZjOcmEiznyOa2IPobw