Mentari Dhuha Sdn Bhd v Muhammad Zahir Sanjay Bin Abdullah (WA-29NCC-2160-12/2020)

JC’s submissions dated 16.10.2024 (Encl 198) (JC Subs-1);

JD’s submissions dated 18.10.2024 (Encl 192) (JD Subs-1);

JD’s submissions dated 28.10.2024 (Encl 193) (JD Subs-2). [3] The cause papers are as follows.

Request to Issue Bankruptcy Notice (Encl. 1)

Bankruptcy Notice (Encl. 2)

Creditor’s Petition (Encl. 9)

Affidavit Verifying Creditor’s Petition (Encl. 10)

Bankruptcy Deposit (Encl. 11)

Amended Creditor’s Petition (Encl. 41)

Amended Affidavit Verifying Creditor’s Petition (Encl. 47)

Notice of Intention to Oppose Creditor’s Petition (Encl. 46)

Affidavit in Opposition by the Judgment Debtor (Encl. 181)

Affidavit in Reply by Judgment Creditor (Encl. 182)

Affidavit in Reply by Judgment Debtor (Encl. 183)

Judgment Creditor’s Written Submission (Encl. 184)

Judgment Creditor’s Bundle of Authorities (Encl. 185)

Judgment Debtor’s Written Submission (Encl. 186)

Judgment Debtors Reply Submission (Encl. 187)

Notice of Appeal to Judge in Chambers (Encl. 188) [4] The Contents of these submissions are as out below. Contents Para No INTRODUCTION 6-7 THE ISSUES & THE MERITS 8-9 First & Second Issues 10-16 Third Issue 17-26 Fourth Issue 27-35 CONCLUSION 36 [5] In my judgment, the SAR rightly dismissed JD’s Encl 46. INTRODUCTION [6] With reference to the Notice of Intention to Oppose Creditor’s Petition (Encl. 46), the Judgment Debtor (“the JD”) had filed Affidavit in Opposition (Encl. 181) that set out the grounds in support of this appeal in Encl 1. [7] The JC raised four (4) grounds.

The Request to Issue Bankruptcy Notice (Encl. 1) is not valid as Messrs. Peter Chambers was not an officer of the Judgment Creditor (“JC”), within section 133 of the Insolvency Act 1967 and Rule 215 of the Insolvency Rules 2017.

The Request to Issue Bankruptcy Notice (Encl. 1) is not valid, as the same should have been executed by two (2) authorised officers of the JC under section 66 of the Companies Act 2016 (“CA 2016”).

The Creditor’s Petition (Encl. 9), as well as the Amended Creditor’s Petition (Encl. 41), are defective as they should have been executed by two (2) authorised officers of the JC under section 66 of CA 2016.

The Affidavit Verifying Creditor’s Petition (Encl. 10), as well as the Amended Affidavit Verifying Creditor’s Petition (Encl. 47) are defective, as the same should have been executed by two

authorised officers of the JC under section 66 of CA 2016. THE ISSUES & THE MERITS [8] It can be seen that the four (4) challenges are as to the authority to execute various documents and case papers filed in these bankruptcy proceedings. These include the execution of the Request to Issue Bankruptcy Notice, the Creditor’s Petition and the affidavits verifying the Creditor’s Petition. I have dealt with a number if not substantially all these procedural issues in previous proceedings against this JD, see Re Muhammad Zahir Sanjay Bin Abdullah; Ex-Parte: Legasi Senada Sdn Bhd [2025] MLJU 1530. [9] There are no issues that go to the merits. First & Second Issues [10] First, the Request to Issue Bankruptcy Notice (Encl. 1) is allegedly invalid as JC’s solicitors, Messrs. Peter Chambers were not officers of the JC under section 133 of the Insolvency Act 1967, and Rule 215 of the Insolvency Rules 2017. The Request to Issue Bankruptcy Notice is therefore defective on the ground that Messrs Peter Chambers are not the agents of the JC and are not authorised to sign the said Request. [11] Secondly, the Request to Issue Bankruptcy Notice (Encl. 1) is also invalid as it should have been executed by two (2) authorized officers of the JC, pursuant to section 66 of CA 2016. [12] For the reasons stated in paras 29 to 32 of Re Muhammad Zahir Sanjay (supra), I have held that these objections have no merit for the following reasons, which are equally applicable here. [13] In short, Messrs Peter Chambers were the solicitors for the JC and therefore, they are authorised to make a request for the issuance of a bankruptcy notice against JD on behalf of the JC, see Timbunan Alam Development Sdn Bhd v Platicorp Holding(M) Sdn Bhd [2000] 2 MLJ 636. [14] In Francis Phillips A/L Aj Philips v Bank Perusahaan Kecil & Sederhana [2008] MLJU 152, the Court held that the request for the issuance of a bankruptcy notice may be made by the JC’s solicitors as this is expressly provided for in the prescribed Form 4 of the Bankruptcy Rules 1969, now reproduced as Rule 35 of the Insolvency Rules 2017, see Re Tai Kian Cheong Lwn Ex-Parte Akitek Timor (Mendakwa Sebagai Satu Firma) [2015] MLJU 2302. [15] Further, section 66 of the Act 2016 (Encl 185 at pp 14 to 15) provides that a document is deemed to be duly executed by a company in the following instance.

When it is signed by a sole director in the presence of a witness to attest his signature, which then shall have the same effect as if the document was executed under the common seal of the company.

Here, the JC had a sole director since 3 June 2019; this is confirmed by a search from the Companies Commission of Malaysia.

Pursuant to the JC’s Company Resolution dated 20 November 2020 exhibited as Encl 182, the JC’s sole director (or solicitors for the JC) have been given the authority to execute any documents related to the legal action against the JD.

In other words, Messrs. Peter Chambers, being the previous solicitors for the JC, executed and filed the Request to Issue Bankruptcy Notice dated 2 December 2020 in the capacity of authorised officers, as authorised by the sole director. [16] Therefore, the allegation raised by the JD regarding the validity of the Request to Issue Bankruptcy Notice (Encl. 1) has no merit. Third Issue [17] The Creditor’s Petition (Encl. 9), as well as the Amended Creditor’s Petition (Encl. 41), are defective, as they should have been executed by two (2) authorised officers of the JC under section 66 of CA 2016. [18] Further, JC’s Bankruptcy Petition is defective and irregular as there is no evidence to show that the director in question was duly authorised under seal of the JC to present the petition against the JD. [19] In Re Kang Chong Yeow; Ex P Mivan Far East Sdn Bhd [2001] 3 MLJ 98, the Court found that the JC company was perfectly entitled to present the petition by its executive director notwithstanding that he may not have been authorised under the seal. “The proceeding in this case, however, is clearly taken under the second alternative, that is, by the company Mivan Far East Sdn Bhd. The affidavits deposed by James Martin Laughlin states clearly that he is the executive director of the judgment creditor (respondent) and that he has been authorized to make the affidavit on behalf of the respondent. Nothing in this proceeding shows that it is being undertaken by James Martin Laughlin himself on behalf of Mivan Far East Sdn Bhd. In the circumstances, the objection under r 215 is unsustainable on the facts.” [20] In Ho Fok v. Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331, where the Court held that if a petition is signed by a company’s director, it must be accepted as a matter of course that it is presented by the company and there should be no question as to the legality of its presentation: “It follows therefore, that if a petition is signed by a director of a company as in the instant case, it must be accepted as a matter of course that it is presented by the company under such a delegated power. There is hardly any ground to question the legality of its presentation. The petition has been as immaculately conceived as it could possibly have been. In my considered view, there is hardly any justification to read r 215 of the Rules in conjunction with s 133(a) of the Act and to find therefrom that in all the three instances of presenting a petition of a corporation under r 215, the officer must be authorized under the seal of the corporation, and that a failure to state so in the petition renders the petition void and ineffective.” [21] Here, Arifuddin Bin Mohamed Shah (“En Arif”) who signed the Petition is the sole director of the JC. He has stated in his affidavit verifying the JC’s Bankruptcy Petition that he has been authorised to affirm the affidavit on behalf of the JC. [22] Most importantly, the JC itself has not challenged the authority of En Ariff, the JC being the person that is most injured by any excess of authority of En Ariff; it is implicit therefore, that his authority is unquestioned. [23] Indeed, the Creditor’s Petition (Encl. 9), as well as the Amended Creditor’s Petition (Encl. 41), was executed by the sole director, being the authorised officer to act on behalf of the JC [24] Alternatively, it is consistent with section 66 of Act 2016 – it is signed by the sole director in the presence of a witness to attest the signature. Thus meaning that the petitions shall have the same effect as if they were executed under the common seal of the JC. [25] In other words, the Creditor’s Petition (Encl. 9), as well as Amended Creditor’s Petition (Encl. 41) are perfectly valid as:

they were executed by the sole director at the material time;

they were witnessed by Messrs. Peter Chambers, being the previous solicitors for the JC; and

they have the same effect as if executed under the common seal of the JC. [26] Therefore, the challenge on the validity of the Creditor’s Petition (Encl. 9), as well as Amended Creditor’s Petition (Encl. 41) has no merit. Fourth Issue [27] The Affidavit Verifying Creditor’s Petition (Encl. 10), as well as Amended Affidavit Verifying Creditor’s Petition (Encl. 47), are defective as they should have been executed by two (2) authorized officers of the JC, under section 66 of CA 2016. [28] The affidavits in Encl. 10 and Encl. 47 are valid as Encl 10 and Encl 47, were executed by the sole director, being the duly authorised officer within section 66 to act on behalf of the JC. [29] In Encls 10 and 47, it was stated that the deponent had been duly authorised by the JC to affirm those affidavits. As stated above, authorisation has been proved under section 66, see paras 20 to 25 above. [30] Therefore, the allegation raised by the JD on the invalidity of Affidavit Verifying Creditor’s Petition (Encl. 10), as well as Amended Affidavit Verifying Creditor’s Petition (Encl. 47), has no merit. [31] Secondly, the JD also submits that the JC’s Bankruptcy Petition is irregular as there is no evidence to show that the director has been duly authorised under seal of the JC to present the petition against the JD. [32] In Re Kang Chong Yeow; Ex P Mivan Far East Sdn Bhd [2001] 3 MLJ 98, the Court found that the JC company was perfectly entitled to present the petition by its executive director notwithstanding that he may not have been authorised under the seal. “The proceeding in this case, however, is clearly taken under the second alternative, that is, by the company Mivan Far East Sdn Bhd. The affidavits deposed by James Martin Laughlin states clearly that he is the executive director of the judgment creditor (respondent) and that he has been authorized to make the affidavit on behalf of the respondent. Nothing in this proceeding shows that it is being undertaken by James Martin Laughlin himself on behalf of Mivan Far East Sdn Bhd. In the circumstances, the objection under r 215 is unsustainable on the facts.” [33] In Ho Fok v. Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331, where the Court held that if a petition is signed by a company’s director, it must be accepted as a matter of course that it is presented by the company under such a delegation and there should be no question as to the legality of its presentation: “It follows therefore, that if a petition is signed by a director of a company as in the instant case, it must be accepted as a matter of course that it is presented by the company under such a delegated power. There is hardly any ground to question the legality of its presentation. The petition has been as immaculately conceived as it could possibly have been. In my considered view, there is hardly any justification to read r 215 of the Rules in conjunction with s 133(a) of the Act and to find therefrom that in all the three instances of presenting a petition of a corporation under r 215, the officer must be authorized under the seal of the corporation, and that a failure to state so in the petition renders the petition void and ineffective.” [34] Here, En Ariff, who signed the petition, is the sole director of the JC. He has stated in his affidavit verifying the JC’s Bankruptcy Petition that he has been authorised to affirm the said affidavit on behalf of the JC. This must be accepted. [35] Most importantly, the JC itself has not challenged the authority of En Ariff, the JC being the person most injured by En Ariff’s excess of authority; it is implicit that his authority is unquestioned. CONCLUSION [36] In the circumstances, I dismissed Encl 188 with costs. Dated 9th July 2025 ...................t.t........................... YA Tuan Saheran Suhendran Judicial Commissioner, High Court of Malaya, Kuala Lumpur. Muhammad Zahir Sanjay bin Abdullah [ Muhammad Zahir (Kuala Lumpur)] for the Judgment Debtor Fairuz Zafirah binti Zainudin Merican [ Farah A.Zabir & Partners (Shah Alam)] for the Judgment Creditor Cases Referred to: • Francis Phillips A/L Aj Philips v Bank Perusahaan Kecil & Sederhana [2008] MLJU 152 • Ho Fok v. Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331 • Ho Fok v. Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331 • Re Kang Chong Yeow; Ex P Mivan Far East Sdn Bhd [2001] 3 MLJ 98 • Re Kang Chong Yeow; Ex P Mivan Far East Sdn Bhd [2001] 3 MLJ 98 • Re Muhammad Zahir Sanjay Bin Abdullah; Ex-Parte: Legasi Senada Sdn Bhd [2025] MLJU 1530 • Re Tai Kian Cheong Lwn Ex-Parte Akitek Timor (Mendakwa Sebagai Satu Firma) [2015] MLJU 2302 • Timbunan Alam Development Sdn Bhd v Platicorp Holding(M) Sdn Bhd [2000] 2 MLJ 636 Legislation referred to: • Insolvency Act 1967 • Rule 215 of the Insolvency Rules 2017 • Companies Act 2016 (“CA 2016”) • Bankruptcy Rules 1969 • Rule 35 of the Insolvency Rules 2017 Decision date: 10th Jun 2025