Pyramid Media International Sdn Bhd v S Murugan A/L M Suppurayan (JA-29NCC-562-09/2022)

High Court of Malaysia19 Mar 2024

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Refers toBankruptcy ActExternal
“re the court is whether can JC refile another bankruptcy notice once annulled? [27] On this issue, it is trite that when an application for a bankruptcy notice has complied with the provisions in the Bankruptcy Act and Bankruptcy Rules, that application may be granted despite the previous bankruptcy order has been annu”
Refers toContract ActExternal
“weight. The JC is not a licensed moneylender [34] Another argument advanced by the JD is an allegation that the JC is not a licensed moneylender and as such the Friendly Loans contravene s. 24 of the Contract Act 1950. [35] At this juncture, it is my view that the issue of whether the Friendly Loans are valid or not sh”
Cites[1947] AC 484External
“(See Chow Yee Wah & Anor v. Choo Ah S/N uti0wrDYiEODoN3Dcqa7w **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 Pat [1978] 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309). [39] Having considered the facts and the”
Cites[2000] CLJU 197External
“said judgment. The court held – [7] As the said Judgment has not been stayed or overturned, the Judgment remains valid and binding and the JD must obey the said Judgment. I refer to Re Tioh Ngee Heng [2000] CLJU 197; [2000] 1 LNS 197 where Steve Shim J (as His Lordship then was) held: "It is trite law that an order, ev”
Cites[2017] CLJU 448External
“ts discretion and accordingly I would decline to do so as otherwise parties would be allowed or encouraged to flout the rules. [14] Likewise in Re: Azmer Idris: Ex Parte: Malaysia Debt Venture Berhad [2017] CLJU 448 [2017] 1 LNS 448, Azizah Nawawi J (now JCA) held that – [17] On this issue, I agree with the JC that thi”

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Cites[2022] CLJU 1277External
“15] It is no doubt that there was an attempt by the JD to set aside the 2018 JID, but it failed. As such the 2018 JID is still valid and enforceable. In Re Chan Wai Fong; ex-parte Everest Web Sdn Bhd [2022] CLJU 1277; [2022] 1 LNS 1277; [2022] MLJU 1253, it was held that once the judgment remains valid and binding and”
Cites[2022] MLJU 1253External
“attempt by the JD to set aside the 2018 JID, but it failed. As such the 2018 JID is still valid and enforceable. In Re Chan Wai Fong; ex-parte Everest Web Sdn Bhd [2022] CLJU 1277; [2022] 1 LNS 1277; [2022] MLJU 1253, it was held that once the judgment remains valid and binding and the judgment debtor must obey the sai”
Approves[1985] AC 97External
“cularly relevant in bankruptcy proceedings where the court generally will not look behind the judgments or order save in very limited circumstances of fraud or illegality, etc. In Isaacs v. Robertson [1985] AC 97, Lord Diplock speaking for the Privy Council approved the proposition advanced by Romer LJ in Hadkinson v.”

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1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM BAHAGIAN DAGANG DALAM PERKARA KEBANKRAPAN: JA-29NCC-562-09/2022 ANTARA Berkenaan: S MURUGAN A/L SUPPURAYAN ...Penghutang Penghakiman Ex-Parte: Pyramid Media International Sdn Bhd ... Pemiutang Penghakiman GROUNDS OF JUDGMENT (Enclosure 32) Introduction [1] This is an appeal filed by the Judgment Debtor (“JD”) (in Enclosure 32) against the decision of the Senior Assistant Registrar (“SAR”) on 29.5.2023 dismissing the JD’s application (in Enclosure 9) for the extension of time in filing the application and for the setting aside the bankruptcy petition dated 16.11.2022. [2] As a brief background, in Mac 2016, vide a series of agreements entered into between the Judgment Creditor (“JC”) and a company S/N uti0wrDYiEODoN3Dcqa7w known as KPI Cinemas Sdn Bhd. (“KPI Cinemas”), the JC granted friendly loans (“Friendly Loans”) which the accumulative amount was RM990,000.00 to the company. The JD and his wife, to wit, Rajakumari Boominathan (“Rajakumari”) who are the shareholders of KPI Cinemas undertook to give their personal guarantees to the repayment of the Friendly Loans. [3] As at July 2016, KPI Cinemas only managed to repay a total of RM290,000.00 out of the whole amount borrowed by the company. [4] Since KPI Cinemas failed to repay the outstanding sum, in May 2018, the JC filed a civil suit at the Shah Alam Sessions Court against KPI Cinemas, the JD and Rajakumari to recover the sum of RM700,000.00 from them. On 7.6.2018, the JC entered a judgment in default of appearance (“2018 JID”) against the trio. [5] The JD only filed the application to set aside the 2018 JID on 22.3.2023 but it was dismissed by the Sessions Court on 23.6.2023. There was no appeal filed by the JD on the dismissal. [6] In June 2019, the JC filed a bankruptcy petition against the JD and Rajakumari at the Johor Bahru High Court. Later, the duo were adjudged bankrupts on 18.6.2020 and 27.2.2020, respectively. [7] On 6.10.2020, the JD filed an application at the High Court to annul the bankruptcy order entered against him (“2020 Bankruptcy Order”). Accordingly, a meeting was held on 30.7.2020 between the JC and the JD which end up that the latter agreed to enter the scheme of settlement proposed by the JC. In return, the JC’s solicitors issued a S/N uti0wrDYiEODoN3Dcqa7w letter dated 14.9.2020 to the JD mentioning the non-objection of the latter’s application. Subsequently, on 5.5.2021, the 2020 Bankruptcy Order was annulled and the JD was granted an order of discharge. [8] After the annulment, the JC averred that the JD only repaid RM207,300.00 and not the full sum as promised. As such, on 14.9.2022, the JC filed another application for the issuance of bankruptcy notice against the JD. On 17.11.2022, the bankruptcy notice (“2022 Bankruptcy Notice”) in Enclosure 5 was issued and the hearing of the notice was set on 2.1.2023. [9] Upon receipt of the 2022 Bankruptcy Notice, on 23.12.2022 the JD filed the application in Enclosure 9 to set aside the notice on the following grounds: S/N uti0wrDYiEODoN3Dcqa7w [10] On 29.5.2023 the learned SAR dismissed the JD’s application with costs. Whether the 2018 JID is valid [11] The JD averred that the 2022 Bankruptcy Notice was based on the 2018 JID which was irregularly entered by the JC as the civil suit was filed in the Shah Alam Sessions Court despite the address of KPI Cinemas, the JD and Rajakumari is at Johor Bahru. [12] To deal with this issue, namely whether the 2018 JID was validly entered or otherwise, the basic question is whether this court being the bankruptcy court has the jurisdiction to examine or go behind the said order. [13] It is trite that in an application to set aside any bankruptcy notice which is based on a final judgment, the bankruptcy court hearing the application has no jurisdiction to go behind the judgment. My view is fortified by the case of Re Khoo Chee Tong, ex parte Unik (Malaysia) Sdn Bhd [1996] 2 BLJ 475; [1996] 5 MLJ 39 where Haidar Mohd Noor J (as the Lordship then was) held that – S/N uti0wrDYiEODoN3Dcqa7w In any event there are ample authorities to show that the Court hearing an application to set aside the bankruptcy notice cannot go behind the judgment (see Sovereign General Insurance Sdn. Bhd. v. Koh Tian Bee [1988] 1 CLJ 277, Re Beenchamp [1904] 1 KB 572 and Re Howell [1915] 84 LJKB 1399). However, the validity of the judgment debt will only be inquired into when there is evidence of fraud or collusion or miscarriage of justice. (Re Flatau [1889] 22 QBD 83). Regrettably there is none of such evidence before me except that the learned Counsel for the debtor whilst admitting that the judgment was regular but alleged that it was tainted with illegality. This she tried to do by trying to persuade that Court to admit the two affidavits (encls. 37 & 39) which were rejected by the learned Deputy Registrar by urging the Court to invoke its discretion under r. 44. No reasons were advanced by the debtor for the Court to exercise its discretion and accordingly I would decline to do so as otherwise parties would be allowed or encouraged to flout the rules. [14] Likewise in Re: Azmer Idris: Ex Parte: Malaysia Debt Venture Berhad [2017] CLJU 448 [2017] 1 LNS 448, Azizah Nawawi J (now JCA) held that – [17] On this issue, I agree with the JC that this bankruptcy Court cannot question the validity of the summary judgment, upon which these bankruptcy proceedings were premised upon. In Sovereign General Insurance Sdn Bhd v. Koh Tian Bee [1988] 1 CLJ Rep 277; [1988] 1 MLJ 304, the Supreme Court held at page 305: "In the exercise of his jurisdiction in bankruptcy proceedings, the learned judge cannot go behind the judgment. Thus on an application to set aside a bankruptcy notice, it was laid down as early as 1893 that the court could not go behind the judgment (see In Re Easton [1893] 10 Mor 111; 9 TLR 409). Even if there has been an irregularity in the service of the notice of sale, it is not open to the respondent in this case to challenge the execution proceedings. " S/N uti0wrDYiEODoN3Dcqa7w [15] It is no doubt that there was an attempt by the JD to set aside the 2018 JID, but it failed. As such the 2018 JID is still valid and enforceable. In Re Chan Wai Fong; ex-parte Everest Web Sdn Bhd [2022] CLJU 1277; [2022] 1 LNS 1277; [2022] MLJU 1253, it was held that once the judgment remains valid and binding and the judgment debtor must obey the said judgment. The court held – [7] As the said Judgment has not been stayed or overturned, the Judgment remains valid and binding and the JD must obey the said Judgment. I refer to Re Tioh Ngee Heng [2000] CLJU 197; [2000] 1 LNS 197 where Steve Shim J (as His Lordship then was) held: "It is trite law that an order, even if irregular, is valid and enforceable until set aside. This principle is particularly relevant in bankruptcy proceedings where the court generally will not look behind the judgments or order save in very limited circumstances of fraud or illegality, etc. In Isaacs v. Robertson [1985] AC 97, Lord Diplock speaking for the Privy Council approved the proposition advanced by Romer LJ in Hadkinson v. Hadkinson [1952] 2 All ER 567 who said at p. 569:- It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham, LC, said in Chuck v. Cremer [1846] 1 Coop temp Cott 338 at p 342, 47 ER 884 at p. 885): 'A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it. It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid-whether it was S/N uti0wrDYiEODoN3Dcqa7w regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.' Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise. This principle has been followed by our Supreme Court in Sovereign General Insurance Sdn Bhd v. Koh Tian Bee [1988] 1 CLJ 277 (Rep); [1988] 1 CLJ 155; [1988] 1 MLJ 304." [16] In similar veins, in an earlier case of Re Yong Tet On Paul, ex p Chung Khiaw Bank Ltd [1996] 1 CLJ 836; [1996] 1 MLJ 721, the court held that – Obedience to Court Order It is established law that a person whom an order of Court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. [17] In light of the above, undoubtedly that it is not the business of this court to delve with the question on the validity of the 2018 JID. Hence, the JD’s argument on the issue of validity of the judgment is untenable. Whether the JC can refile another bankruptcy notice once annulled [18] The JD submitted that when he applied to the court for the annulment of the 2020 Bankruptcy Order, there was an agreement S/N uti0wrDYiEODoN3Dcqa7w between the JC and the JD which led the JC issuing a letter dated 26.8.2020 (August Letter) to the Department of Insolvency (“DI”). The JD averred that the August Letter is not only mentioning the JC has no objection to the JD’s application to annul the 2020 Bankruptcy Order but more importantly that the JC admits that there is a settlement of the JD’s debt. Hence, as there is no more sum due to the JC, the JD submitted that the JC is estopped from filing another bankruptcy notice against him. [19] For ease of reference, I reproduce below the August Letter – S/N uti0wrDYiEODoN3Dcqa7w [20] In refuting the JD’s argument, the JC narrated the background on how the August Letter was issued. The JC revealed that when the JD was adjudged a bankrupt, the latter approached the JC’s solicitors stating that there is a dispute involving an Indian temple where the JD is a party in a suit. The JD strenuously wanted the 2020 Bankruptcy Order be annulled as to maintain the suit. Thus, on the JD’s request, the JC agreed not to object the JD’s application to annul the 2020 Bankruptcy Order provided that a scheme of settlement must be agreed between the JC and the JD. [21] Subsequently, a meeting was held on 30.7.2020 between the JC and the JD whereby an agreement had been reached which the terms were as follows, inter alia:

the JC has no objection on the JD’s application to annul the bankruptcy order;

the JD is to pay the JC the sum of RM5,000.00 per month commencing September 2020 until December 2020; and

starting from January 2021 onwards, the JD is to pay the JC the sum of RM10,000.00 per month until the full and final settlement. [22] Following to the agreement, the JC’s solicitor issued two letters i.e. the August Letter and a letter dated 14.9.2020 (“September Letter”). [23] For ease of reference, below is the September Letter. S/N uti0wrDYiEODoN3Dcqa7w [24] The JC submitted that there is nowhere in the August Letter indicating that the outstanding payment has been fully paid by the JD. Instead, the letter merely informs the DI that there is a payment settlement between them and the JC has no intention to object the JD’s application for the annulment. The argument is strengthened by the September Letter which spells out the methods of repayment agreed upon by the JC and the JD. The JC further submitted that the company S/N uti0wrDYiEODoN3Dcqa7w did not receive any letter or statement from the JD refuting the debt stated in the September Letter. [25] In addition, the JC averred that the JD made a few payments which the overall is RM207,300.00 pursuant to the settlement agreement but failed to repay in full. It is the JC’s contention that the failure of the JD to repay the sum agreed resulting the former filed another application for the issuance of bankruptcy notice against the latter. [26] The question before the court is whether can JC refile another bankruptcy notice once annulled? [27] On this issue, it is trite that when an application for a bankruptcy notice has complied with the provisions in the Bankruptcy Act and Bankruptcy Rules, that application may be granted despite the previous bankruptcy order has been annulled. I draw support from the judgment of Lee Swee Seng JC (now JCA) in Lim Koon Chow v. Ambank (M) Bhd [2012] 4 CLJ 624; [2012] 8 MLJ 285 where the Lordship held – Whether The JC Can Commence A Bankruptcy Action A Second Time Against The JD After The First Bankruptcy Was Annulled [94] The JC did previously commence bankruptcy proceedings against the JD based on the judgment dated 16 April 2003 vide Shah Alam High Court Bankruptcy No: 29-346-2009 and an RO and AO had been obtained against the JD on 3 December 2009. [95] However, upon the JD's appeal to the JC seeking the JC's indulgence on ground that his wife was suffering from cancer and had to seek medical treatment in Singapore and that all his financial resources was channelled towards seeking a cure for her, the JC had agreed to set aside the RO and S/N uti0wrDYiEODoN3Dcqa7w AO dated 3 December 2009 on the promise that he would make regular payments towards settlement of the judgment sum. [96] The JC believing that the JD was sincere acted in good faith and consented to set aside the same. In the premises, the RO and AO dated 3 December 2009 were set aside by order of court dated 9 February 2010. [97] The JD himself has admitted in paras. 8.1 to 8.4 of JD's affidavit in reply affirmed on 16 May 2011 in respect of encl. 14 that the RO and AO dated 3 December 2009 were set aside and annulled on 9 February 2010. [98] The onus is therefore on the JD and/or his own solicitors to follow up with the order dated 9 February 2010 and file the same with the Insolvency Department. [99] In addition, when the JD's application to set aside the CP came up for mention before the Shah Alam High Court on 26 August 2010, parties were informed by Senior Assistant Registrar, Tuan Farid bin Daud that the file had been closed as the RO and AO dated 3 December 2009 had been annulled. The JD was no longer adjudged a bankrupt and the JC is at liberty to file fresh bankruptcy proceedings. Surely if the record in the Insolvency Department is not updated because the JD had not extracted the order of annulment and served it on the Insolvency Department, the JC cannot be blamed for this and for all intents and purposes the JD was not a bankrupt when a second bankruptcy proceeding was commenced against the JD. [100] The JC has at all material times acted in good faith and complied strictly with the provisions and requirements of the BR and BA. In the premises, these bankruptcy proceedings are regular and in accordance with law. [28] In the present case, I agree with the JC that if the debt had been fully settled by the JD, the JD must have refuted that the September S/N uti0wrDYiEODoN3Dcqa7w Letter and questioned the validity of the statement in the letter. It also does not resonate if the JD refuted the debt but did not respond to the September Letter. A reasonable inference may be drawn that the debt based on the 2018 JID has not been fully settled by the JD and as such, the JC is at liberty to file a fresh bankruptcy notice i.e. the 2022 Bankruptcy Notice. [29] Again, in the premise of the foregoing, the JD’s argument is bereft of merit. Whether the amount stated in the 2022 Bankruptcy Notice is incorrect and does not reflect the actual amount owed by the JD [30] The JD argued that the amount stated in the 2022 Bankruptcy Notice is incorrect and does not reflect the actual amount owed by the JD. [31] On this issue, I find that in Enclosure 1, the JD has attached a list of payments made by the JD from the very beginning until the last repayment. The list is reproduced as follows: S/N uti0wrDYiEODoN3Dcqa7w [32] What can be gathered from the list is clear - the detail about the original amount of loan granted by the JC until the last payment together with the dates. [33] Nevertheless, the JD has not issued any single statement to the JC disputing the details in the list and the outstanding amount. It is my view that the JD’s statement arguing the outstanding amount is a mere allegation without proof and thus, has no weight. The JC is not a licensed moneylender [34] Another argument advanced by the JD is an allegation that the JC is not a licensed moneylender and as such the Friendly Loans contravene s. 24 of the Contract Act 1950. [35] At this juncture, it is my view that the issue of whether the Friendly Loans are valid or not should be brought before the Shah Alam Sessions Court and not at this stage. Since the 2018 JID remains valid, it cannot be the function of this Court to look into or review the merits of the case or to decide the facts of the case. S/N uti0wrDYiEODoN3Dcqa7w [36] In light of the above, it is axiomatic that the argument raised by the JD on the status of the JC as an unlicensed moneylender at this stage is without merit. Conclusion [37] In the celebrated case of Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56 where it was held that the appellate court should not interfere with the finding of the court below unless that court is shown to be plainly wrong in arriving at its decision or there has been no or insufficient judicial appreciation of the evidence (see also Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857 and Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97). [38] In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, the Federal Court reiterated the principle on appellate intervention as follows at p.476: [60] It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle; see the Federal Court in Gan Yook Chin & Anor (P) v. Lee Ing Chin @ Lee Teck Seng & Anor [2004] 4 CLJ 309; [2005] 2 MLJ 1 (at p. 10) per Steve Shim CJ SS. More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. (See Chow Yee Wah & Anor v. Choo Ah S/N uti0wrDYiEODoN3Dcqa7w Pat [1978] 1 LNS 32; Watt v. Thomas [1947] AC 484; and Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309). [39] Having considered the facts and the circumstances of the present appeal, I find that the learned SAR was correct on the basis of the relevant laws and the established evidence in dismissing the JD’s application. Thus, I dismiss the JD’s appeal with costs. Dated: 13.12.2024 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels: For the Judgment Debtor – C. Kumareson; Messrs. Francis, Pereira & Shan For the Judgment Creditor – Parvinder Singh Doal; Messrs. Pritam Singh Doal & Co. Cases referred to:  Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453,  Goh Bak Ming v Yeoh Eng Kong & Other Appeals [2019] 3 MLRA 56  Lee Ing Chin v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97  Lim Koon Chow v. Ambank (M) Bhd [2012] 4 CLJ 624; [2012] 8 MLJ 285 S/N uti0wrDYiEODoN3Dcqa7w  Ming Holdings (M) Sdn Bhd v Tuan Syed Azahari bin Noh Shahabudin & Anor [2010] 4 MLJ 577; [2010] 6 CLJ 857  Re: Azmer Idris: Ex Parte: Malaysia Debt Venture Berhad [2017] CLJU 448 [2017] 1 LNS 448  Re Chan Wai Fong; ex-parte Everest Web Sdn Bhd [2022] CLJU 1277; [2022] 1 LNS 1277; [2022] MLJU 1253  Re Khoo Chee Tong, ex parte Unik (Malaysia) Sdn Bhd [1996] 2 BLJ 475; [1996] 5 MLJ 39 S/N uti0wrDYiEODoN3Dcqa7w

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Case metadata

Court: High Court of Malaysia
Decision date: 19 Mar 2024
Case number: JA-29NCC-562-09/2022
Coram: YA Dato' Sri Shamsulbahri bin Haji Ibrahim
Practice area: Bankruptcy - appeal filed by the Judgment Debtor (“JD”) against the decision of the Senior Assistant Registrar dismissing the JD’s application for the extension of time in filing the application and for the setting aside the bankruptcy petition - whether this court being the bankruptcy court has the jurisdiction to examine or go behind the JID – whether the Judgment Creditor can refile another bankruptcy notice once annulled
Version: Alasan Penghakiman 1
Published: 16 Dec 2024
Source ID: c2b4d8ba-d8b0-4388-83a0-ddc372af9aef

Catchwords

Bankruptcy - appeal filed by the Judgment Debtor (“JD”) against the decision of the Senior Assistant Registrar dismissing the JD’s application for the extension of time in filing the application and for the setting aside the bankruptcy petition - whether this court being the bankruptcy court has the jurisdiction to examine or go behind the JID – whether the Judgment Creditor can refile another bankruptcy notice once annulled

Parties

PYRAMID MEDIA INTERNATIONAL SDN BHD - pemiutang-penghakiman - ejudgment_parties
S MURUGAN A/L M SUPPURAYAN - penghutang-penghakiman - ejudgment_parties

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