Per: Mohan M.K. Swami v Ex-Parte: Ithmar Development Company Limited (29NCC-1835-03/2016)

There are three appeals by the Judgment Debtor (JD). Firstly, is in relation to the JD’s Notice of Intention to Oppose Petition and entering Receiving and Adjudicating Orders (ROAO) which was dismissed (Enclosure 64); Secondly, is the JD’s appeal against the dismissal of JD’s application for Stay of Creditor’s Petition (CP), which is under Enclosure 65. 2

The third appeal by the JD is the JD’s application to set aside the CP that was filed before Deputy Registrar under Enclosure 41, which is filed before this Court under Enclosure 66.

In this judgment, the parties will be known as the JD and the Judgment Creditor as the JC.

The facts leading to this appeal can be briefly stated as follows:

The JC on 7.6.2010 had obtained a Summary Judgment against the JD at the High Court of Justice, Queens Bench Division, Commercial Court, Royal Courts of Justice, Strand, London, England for the sum of USD 65, 225,120.40 (the Judgment Debt).

The JC obtained an order for Registration of Foreign Judgment dated 24.11.2010 entered in KL High Court (Exhibit MS-1, Tab 9, Core Bundles of Documents).

The JC claimed that only two payments of which USD 3,999,974.00 and USD 1,749,974.00 had been received by the JC from the JD towards part payment of the Judgment Debt.

The JC subsequently commenced bankruptcy proceedings against the JD on 2.3.2016 for the sum of RM249, 785,548.55 3 filed and issued a bankruptcy notice (BN) (Exhibit KYS-2, pages 3-15, Core Bundles of Documents).

The JD filed an application to set aside the BN and it was dismissed by the Registrar on 5.9.2016.

The JD filed an application for Stay of CP pending disposal of appeal and was allowed by the Registrar (1st stay application). The High Court then dismissed the appeal and the JD appealed to the Court of Appeal.

The JD filed the 2nd application for Stay and it was dismissed by the registrar on 28.4.2017. The parties then agreed to a settlement and the JD withdrew the appeal to the Court of Appeal.

The JD then filed an application to set aside the Judgment dated 24.11.2010 on 4.7.2017 and filed an application for a Stay (3rd stay application) on 5.7.2017.

On 13.7.2017, the Registrar dismissed the JD’s Stay application, the JD’s application to Set Aside the CP and the Notice of Intention to Oppose CP and the ROAO was entered against the JD which are the subject of the appeal before this Court under Enclosures 64, 65 and 66. 4 JD’s Submission [5] The learned counsel for the JD submitted that the BN issued based on the Order is defective as the Order stating the alleged Judgment Debt is in US currency only, without the amount alleged in Malaysian currency of the conversion rate which runs contrary to the requirement under section 4(3) of Reciprocal Enforcement of Judgments Act 1958(REJA 1958) and under Order 67 r 3(2) Rules of High Court 1980 which is mandatory. [6] The JD’s counsel submitted that the amount claimed in the BN is invalid based on an erroneous exchange rate and the excess sum is not a mere formal defect or irregularity which could be remedied under section 131 of Bankruptcy Act 1967. It is submitted that the requirement to comply with the provisions of the Bankruptcy Act 1967 is mandatory: Sovereign General Insurance Sdn Bhd v Koh Tian Bee [1988] 1 CLJ (Rep) 277. It is submitted that the mandatory requirement cannot be statutorily waived: Liew Jui Hua & Ors v Johor Property (M) Sdn Bhd [1998] 2 CLJ Supp 34; Chase Perdana Bhd v Md Afendi bin Hamdan [2009] 6 MLJ 783; Badiaddin bin Mohd Mahidin v Arab Malaysian Finance Bhd [1998] 1 MLJ 397. [7] It is the contention of the JD’s counsel that the exchange rate to be applied in calculating the Judgment Debt should be the rate on the date of judgment and not any other date, that is the date of the judgment of the original court, 7.6.2010 where based on the Bank Negara Exchange Rate on 7.6.2010 is USD1 = RM3.3355. The counsel for the JD relied on a 5 number of authorities to support his argument: Re Kang Chong Yeow;

(L) Ltd v Penas Holdings Sdn Bhd & Anor [2005] 2 MLJ 509. [8] The JD’s counsel argued that based on a wrong rate and calculation, the amount claimed in the BN exceeds the amount due. The JD’s counsel submitted that the JD had made payments totaling USD 7,750,000.00 to the JC as of 9.3.2016 and the JC had received a sum of GBP 213, 427.77 in March 2012 from the forced sale of a flat in London, England known as Flat 1, Fitrevia Apartments, London by Order of the English High Court dated 13.1.2012 which is towards the settlement of the Judgment Debt. The JD’s counsel argued that both sums that had been made (the Satisfied Sum) was on the wrong exchange rate where the JC applied the rate of USD1 = RM4.2238, based on the exchange rate on 2.3.2016 of CIMB Bank Foreign Exchange Rate Board Rates. JC’s Submission Enclosure 65 [9] The learned counsel for the JC submitted that the Deputy Registrar was correct in dismissing the 3rd application for Stay as it was a tactical maneuver to delay the proceedings by the JD as the application to set aside the 24.11.2010 Order was only filed on the eve of the decision date of the CP. [10] The counsel for the JC submitted that the JD had ample opportunity to file the application for Stay but refused to do so and for the 3rd 6 application for Stay, there was no explanation for the delay in challenging the 24.11.2010 Order and argued that it was not made bone fide. [11] The JC’s counsel submitted that the JD had not shown that there were special circumstances to deprive the Plaintiff the fruits of his litigation and that a Stay is not granted to “give the unsuccessful party time to satisfy the judgment or to alleviate his problems”: the case of Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2004] 1 MLJ 257. [12] It is submitted that the 3rd Stay application failed the test laid out in the case of Chen Ying & Chin Ying v Export-Import Bank of Malaysia Bhd [2016] 4 MLJ 324 where in that case when construing section 97 of Bankruptcy Act 1967, there were already pending proceedings in China disputing the judgment debtor’s liability. The Court in that case held that in matters where an unduly prolonged with multiple stay applications, the Court is entitled to apply special circumstances test and refuse a Stay. It is submitted that in the instant appeal the prolonged suit to claim for the Judgment Debt shows that there is no special circumstances to warrant for a Stay. Enclosure 64 & Enclosure 66 [13] In relation to Enclosures 64 and 66, the JC’s counsel submitted that the issue brought by the JD in both appeals is that the BN upon which the CP is premised is defective because it is based on a Judgment Debt which is not expressed in Malaysian Ringgit. The JC’s counsel averred that this issue had been decided in JC’s favour which was upheld on 7 appeal by the Judge in Chambers on 5.4.2017 and would be res judicata and subjected to the principle of estoppel. [14] The JC’s counsel submitted that the Order has been registered in the High Court of Malaysia and that a valid act of bankruptcy had been committed regardless the JD filed the application to set aside the CP. APPEAL [15] Having perused the written submissions of both counsels, the Core Bundles and heard their oral submissions, I dismissed the appeals. My ground are as follows. [16] The heart of the matter is in relation to the provision under section 43 of REJA 1958 where it is stated that, “Where the sum payable under a judgment which is to be registered is expressed in a currency other than Malaysian currency, the judgment shall be registered as if it were a judgment for such sum in Malaysian currency as, on the basis of the rate of exchange prevailing at the date of the judgment of the original court, is equivalent to the sum so payable.” The REJA 1958 is an enforcement legislation which should be given its literal interpretation and the wording bears no ambiguity. It is clearly stated that the judgment shall be registered as if it were a judgment for the such sum in Malaysian currency. The objective of REJA 1958 is to get the 8 judgment from a foreign court to be registered at the High Court Kuala Lumpur and therefore I do not find that the Order is defective. [17] Furthermore, the heart of the dispute had been decided by this Court on 5.9.2016 (Order of the High Court Registrar, Exhibit “IDC-1” of JC’s Affidavit, Tab 20 of Core Bundle) which was upheld on appeal to the Judge in Chambers on 5.4.2017 (Exhibit “KYS-1” of JC’s Affidavit, Tab 14 of Core Bundle), bearing in mind that the appeal by the JD to the Court of Appeal on this issue had been withdrawn. This Court is of the view that the dispute falls within the purview of res judicata principle, Enclosures 64 and 66 are dismissed. [18] In relation to the dismissal of the 3rd Stay application (Enclosure 65), based on the chronology tabled by the JC’s counsel (pages 2 – 4 of JC’s counsel’s written submission), the JD’s application to set aside the 24.11.2010 Order was only filed on 4.7.2017 and the Stay application (3rd Stay) was filed on 5.7.2017 where the JD could have filed prior to those dates since the service of the 24.11.2010 Order was served on JD’s solicitors on 25.3.2011 (pages 26 – 27 of JC’s Affidavit, Tab 14 of Core

Bundle). The fact that the JD had made payments on 27.7.2012,

7.2013 and 9.3.2016 proves to show that the application to Set Aside the 24.11.2010 Order does not bear merits and is not a sufficient reason to warrant a Stay. [19] Based on the facts and evidence before this Court, I viewed that the Deputy Registrar was not wrong in law and fact in dismissing the appeals: Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1. 9 In light of the above reasons, the appeals under Enclosures 64, 65 and 66 are dismissed with costs at RM6,000.00. Dated: 12 July 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 10 COUNSEL FOR THE JUDGMENT DEBTOR KEVIN PRAKASH A/L THIRUNAVUKARASU MAIZURA BINTI MOHAMED AMIN Messrs Mohanadass Partnership B-21-8, The Vertical, Avenue 3 Bangsar South City, No. 8, Jalan Kerinchi 59200 Kuala Lumpur [Ref: MK/TSDM/IDCL/B/15(2241)] Tel: 03-2242 395 Fax: 03-2242 3392 COUNSEL FOR THE JUDGMENT CREDITOR JEYANTHINI KANNAPERAN Y.S. KOO Messrs Shearn Delamore & Co 7th Floor, Wisma Hamzah Kwong-Hing No. 1, Leboh Ampang 50100 Kuala Lumpur [Ref: SD(DR) 3419058(JK)]