MISC BERHAD (dahulunya dikenali sebagai Malaysia International Shipping Corporation Berhad) v SYAHRIDZ BIN DZULKEFLI (WA-11ANCvC-53-11/2025)

SYAHRIDZ BIN DZULKEFLI (No. K/P: 830418-09-5039)

WAN RUSLAN BIN ISMAIL (No. K/P: 600127-09-5035)

HASHIM MD SHARI (No. K/P: 581228-10-5211) ...RESPONDEN-RESPONDEN DALAM MAHKAMAH MAJISTRET DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR, MALAYSIA GUAMAN SIVIL NO: A72NCVC-6767-11/2014 PELAKSANAAN NO: WA-76J-824-04/2025 30/06/2026 17:17:14 WA-11ANCvC-53-11/2025 Kand. 15 ANTARA MISC BERHAD (8178-H) (dahulunya dikenali sebagai Malaysia International Shipping Corporation Berhad) ...PEMIUTANG PENGHAKIMAN

SYAHRIDZ BIN DZULKEFLI (No. K/P: 830418-09-5039)

WAN RUSLAN BIN ISMAIL (No. K/P: 600127-09-5035)

HASHIM MD SHARI (No. K/P: 581228-10-5211) ...PENGHUTANG-PENGHUTANG PENGHAKIMAN GROUNDS OF JUDGMENT

This is an appeal by the Appellant, MISC Berhad, against the decision of the learned Magistrate delivered on 13.11.2025 allowing the Respondent’s application to set aside the Judgment Debtor Summons (“JDS”) dated 3.7.2025.

The appeal principally concerns the legal effect of a discharge from bankruptcy under section 33A of the Insolvency Act 1967 (“IA 1967”) upon an existing civil judgment and the permissibility of continuing post-judgment execution proceedings thereafter.

The relevant background facts are largely undisputed.

On 10.11.2014, the Appellant commenced proceedings against the Respondent and other judgment debtors in the Magistrates’ Court.

On 12.3.2015, parties recorded an Amended Consent Judgment in favour of the Appellant.

On 26.7.2017, the Respondent was adjudged bankrupt pursuant to bankruptcy proceedings initiated by the Appellant itself.

On 9.8.2023, the Respondent was released from bankruptcy by the Director General of Insolvency pursuant to section 33A IA 1967, and a Certificate of Discharge was subsequently issued.

Thereafter, on 8.11.2024, the Appellant filed an ex parte application seeking leave to continue execution proceedings notwithstanding the lapse of six years from the date of judgment.

On 22.11.2024, the Magistrates’ Court granted leave to the Appellant to proceed with execution.

The said leave order was never appealed against nor set aside by the Respondent.

Pursuant to the leave granted, the Appellant subsequently filed the JDS dated 3.7.2025.

The Respondent then applied to set aside the JDS on the basis, inter alia, that by reason of his discharge from bankruptcy, the debt was no longer due and enforceable.

On 13.11.2025, the learned Magistrate allowed the Respondent’s application and set aside the JDS with costs.

The present appeal followed.

The central issues arising in this appeal are:

(a) whether a discharge from bankruptcy under section 33A IA 1967 extinguishes or nullifies a pre-existing civil judgment debt;

(b) whether the learned Magistrate erred in setting aside the JDS solely on the basis of the Respondent’s discharge from bankruptcy; and

(c) whether the Respondent’s application constituted an impermissible collateral challenge against the earlier leave order permitting execution after six years. D. APPLICABLE PRINCIPLES

It is trite that an appellate court should be slow to interfere with findings of fact by the trial court unless plainly wrong. However, where the appeal concerns the interpretation and application of statutory provisions, particularly when a question of law is involved, appellate intervention is warranted if there has been a misdirection in law.

The present appeal substantially turns on the interpretation of sections 33A and 35 IA 1967 and their legal effect upon an existing judgment debt.

(A) Whether Discharge Under Section 33A IA1967 Extinguishes The Judgment Debt

Section 33A IA 1967 empowers the Director General of Insolvency to issue a certificate discharging a bankrupt from bankruptcy after the lapse of the stipulated statutory period.

The legal effect of discharge is provided under section 35 IA 1967, which states: “(1) Subject to this section and any condition imposed by the court under section 33, where a bankrupt is discharged, the discharge shall release him from all his debts provable in the bankruptcy but shall have no effect-

(a) on the functions (so far as they remain to be carried out) of the Director General of Insolvency; or

(b) on the operation, for the purposes of the carrying out those functions, of the provisions of this Act.

(a) any debt, due to the Government of Malaysia or of any State;

(b) any debt with which the bankrupt may be chargeable at the suit of-

(i) the Government of Malaysia or of any State or any other person for any offence under any written law relating to any branch of the public revenue; or

(c) any provable debt which he incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which he was party; or

(d) any liability in respect of a fine imposed for an offence.

Section 35(1) IA 1967 expressly provides “a discharge shall release him from all debts provable in the bankruptcy but shall have no effect...” The provision speaks of releasing the bankrupt personally from provable debts. It does not expressly state that:

(a) the judgment ceases to exist;

(b) the judgment is set aside;

(c) the debt is extinguished ab initio; or

(d) all legal incidents of the judgment disappear.

There is an important distinction between extinguishment of the debt itself and release of the bankrupt from personal liability/enforcement consequences.

The Respondent’s argument seems to conflate the two.

The provision merely releases the bankrupt from debts provable in bankruptcy. It does not expressly set aside the judgment, extinguish the judgment debt ab initio, invalidate the judgment, or erase all legal consequences arising from the judgment.

A distinction must therefore be drawn between:

(a) the continued existence of the judgment itself; and

(b) the personal release of the bankrupt from liability arising therefrom.

The Respondent’s submissions appear to conflate these two distinct concepts.

The Amended Consent Judgment dated 4.11.2015 remains a valid and subsisting judgment of the Court unless and until set aside, varied, or satisfied.

Nothing in sections 33A or 35 IA 1967 expressly provides that a discharge automatically nullifies an existing civil judgment previously obtained by a creditor.

The consent judgment of 4.11.2015 was never set aside, varied, satisfied, or declared spent. It therefore remains a valid subsisting judgment of the court.

A discharge under section 33A does not operate as an appellate or curial nullification of an existing civil judgment.

Indeed, section 35(4) IA 1967 states that an order of discharge is conclusive evidence of the bankruptcy and discharge. But it does not say the underlying judgment is erased.

This distinction is important because execution proceedings presuppose the continued existence of the judgment.

The Court believes that, had Parliament intended such a far-reaching consequence, clearer and express language would ordinarily have been used.

(B) Effect of The Earlier Leave Order

The Court further notes that the Appellant had already obtained leave on 22.11.2024 to continue execution proceedings notwithstanding the lapse of six years from the date of judgment.

That order was never challenged by way of appeal nor set aside by the Respondent.

Accordingly, the leave order remained valid, binding, and operative at all material times.

The JDS dated 3.7.2025 was filed pursuant to and consequential upon that subsisting leave order.

In the circumstances, the Respondent’s subsequent application to set aside the JDS effectively amounted to an indirect or collateral challenge against the earlier leave order itself.

If the Respondent intended to challenge the permissibility of post-six-year execution proceedings, the proper course would have been to challenge the leave order directly.

The Court agrees with the Appellant’s submission that the learned Magistrate failed to properly appreciate the legal significance of the earlier leave order which remained unchallenged.

(C) Nature of A Judgment Debtor Summons

A JDS is fundamentally a procedural mechanism enabling the judgment creditor to inquire into the means and financial ability of the judgment debtor for purposes of execution.

It is not a fresh action on the debt.

Neither does the issuance of a JDS automatically determine questions relating to ultimate recoverability or satisfaction of the judgment debt.

In the present case, the learned Magistrate appears to have treated the mere issuance of the JDS as impermissible solely because the Respondent had obtained a discharge from bankruptcy.

With respect, such an approach was erroneous.

The Respondent’s discharge from bankruptcy did not, without more, invalidate the subsisting judgment nor automatically prohibit the continuation of all forms of execution proceedings, particularly where leave of Court had already been granted. F.

Having considered the appeal records, submissions, and applicable statutory provisions, this Court is satisfied that the learned Magistrate had erred in law in concluding that the Respondent’s discharge from bankruptcy rendered the JDS liable to be set aside.

The learned Magistrate further erred in failing to give due effect to the subsisting leave order dated 22.11.2024, which had expressly permitted the continuation of execution proceedings after six years.

The present appeal therefore warrants appellate intervention.

Accordingly –

(a) the appeal is allowed.

(b) the order of the learned Magistrate dated 13.11.2025 is hereby set aside.

(c) the Respondent’s application to set aside the Judgment Debtor Summons dated 3.7.2025 is dismissed.

(d) the Judgment Debtor Summons dated 3.7.2025 is reinstated and execution proceedings may proceed according to law.

(e) Costs of RM5,000.00 are awarded to the Appellant subject to allocatur. Dated: 30th June 2026 ……………………………………………………………….. (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA KUALA LUMPUR Counsel for The Appellant : Sarah Anthony & Jeyakuhan Jeyasingam Messrs. Zaid Ibrahim & Co. (Kuala Lumpur) Advocates & Solicitors Counsel for The Respondent : Abdul Hadi Ahmad Messrs. Abdul Hadi Ahmad & Associates (Alor Setar) Advocates & Solicitors