Syed Gamal Bin Syed Kechik Al-Bukhary v 1. ) Ace Credit (M) Sdn Bhd (WA-22NCC-62-02/2023)

ACE CREDIT (M) SDN BHD [Company No.: 200301003436 (605856-V)]

CHANG AI NEE [Identity Card No.: 710422105248]

CHOONG CHEE MENG [Identity Card No.: 610726085743] …DEFENDANTS JUDGMENT (NO. 2) Background Facts [1] It is trite that the Court has the power to fix a time for a judgement debtor to make the payment of an adjudged monetary sum to the judgment creditor subsequent to the Court’s said judgment which does not specify a time to do so. This is clear from Order 45 r.6(2) and Order 42 r.6(2) of the Rules of Court 2012 (“ROC 2012”). [2] Enclosure 111 is the Plaintiff’s application for this Court to fix a time for the Defendants to pay the Plaintiff the sums that this Court has adjudged on 13.11.2024, after a full trial. [3] At the time when this Court delivered its judgment, learned counsel for the Plaintiff had prayed for this Court to affix a time for the Defendants to make the payment of the judgment sums. However, this Court did not accede to the learned counsel’s oral prayer on the ground that the judgment debtors are required in law to pay the judgment sum on demand by the Plaintiff even without any specific time expressed in the judgment. [4] After extraction of the judgment and the service of the same on the Defendants, there has been no payments made by the Defendants. [5] The Plaintiff now seeks by way of Enclosure 111 for an order for this Court to fix a time for the Defendants to make the payment of the judgment sums. Court’s Considerations [6] The Plaintiff did not dispute that apart from making a demand for payment under the Judgment, the Plaintiff has not taken out any recovery action to enforce the Judgment against the Defendants. [7] It is the contention of the Defendants, in particular the 2nd and 3rd Defendants that the Plaintiff must show that he has taken steps to enforce the Judgment through the available execution measures before this Court grants an order to fix time for the payment of the judgment sums. It is also contended that the Plaintiff’s intention to fix a time for payment of the Judgment sums is to initiate committal proceedings against the Defendants. In this regard, it was contended that such committal proceedings are bound to fail since the Defendants are incapable of making the payment and not refusing to do so. [8] With respect, I do not agree with the Defendants. [9] There is no requirement under Order 45 r.6(2) and Order 42 r.6(2) of the ROC 2012 that compel the Plaintiff to first enforce the monetary Judgment by way of the available execution measures as a condition for an application for a time to be fixed for the payment of the monetary Judgment. [10] To my mind, it is wholly the prerogative of the Plaintiff to determine how he wishes to enforce the monetary Judgment. In the present case, the Defendants have not taken any steps to make the payment of the judgment sums even after demands had been made by the Plaintiff. Neither have the Defendants made any attempts to reach out to the Plaintiff on the payments of the same. [11] In fact, the Plaintiff has shown that the Defendants have been avoiding personal service of the Judgment. Efforts to personally served the Judgment on the Defendants through the Defendants’ solicitors have also proven futile. [12] The aforesaid suggests that the Defendant are seeking to avoid making payments on the Judgment sums. [13] Further, the fact that the application for committal proceedings that may be filed against the Defendants may prove to be futile and or are bound to fail, is with respect, irrelevant at this stage. The merits or otherwise of any application for committal against the Defendants will have to be determine at the time of the said application. [14] However, since the 1st Defendant has been wound up, it will not be appropriate for this Court to make the order for the 1st Defendant and or its Liquidator to make payment of the judgment sum within a specific time. The proper step to be taken is for the Plaintiff to file a proof of debts with the Liquidator and for the Plaintiff to await the liquidation of the 1st Defendant. The judgment does not make the Plaintiff a secured creditor and this Court should not make an order that may result in turning the Plaintiff into a secured creditor or a preference creditor. Conclusions [15] For the aforesaid reasons, I am satisfied that the facts of this case are sufficient for this Court to grant the order as prayed by the Plaintiff in Enclosure 111 with costs but only as against the 2nd and 3rd Defendants. Dated the 10th day of April 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Counsel for Plaintiff: Mr. Wan Zafran Pawancheek (Messrs. Wan Marican Hamah & Shaik)

Counsel for 1st Defendant's Liquidator: Mr. Loo Man Keith together with Mr. Lim Chun Yen (Messrs. Peter Ling & Van Geyzel)

Counsel for 2nd and 3rd Defendants: Mr. Shanker Govinth together with Ms. Nabilah Arysa (Messrs. Shankar Govinth)

Order 45 r.6(2) and Order 42 r.6(2) of the Rules of Court 2012