BOON CHONG SERVICE CENTRE 1. ) CIMB BANK BERHAD 2. ) KETUA PENGARAH JABATAN INSOLVENSI MALAYSIA 3. ) DINESH A/L DIVAKARAN (SI BANKRAP)

BOON CHONG SERVICE CENTRE 1. ) CIMB BANK BERHAD 2. ) KETUA PENGARAH JABATAN INSOLVENSI MALAYSIA 3. ) DINESH A/L DIVAKARAN (SI BANKRAP)

Plaintiff failed to obtain the mandatory leave of court under s8(1)(a) Insolvency Act 1967 before initiating proceedings involving a bankrupt's property and/or naming the insolvency administrator; accordingly plaintiff lacked locus standi and the writ was an abuse of process and void ab initio, warranting dismissal with costs to Defendant Second.

Citation
JA-A51NCvC-12-05/2023 (Mahkamah Sesyen)
Parties
Plaintiff: Boon Chong Service Centre; Defendant 1: CIMB Berhad; Defendant 2: Pengarah, Jabatan Insolvensi Malaysia; Defendant 3 (bankrupt): Dinesh A/L Divakaran
Court
Sessions Court
Jurisdiction
Malaysia
Judgment Date
4 January 2024
Case Number
JA-A51NCvC-12-05/2023 (Mahkamah Sesyen)
Procedural Posture
Civil Suit / Judgment on Interlocutory Application to Strike Out Under Rules/order 18 Kaedah 19
Outcome
Application by Defendant Second allowed; writ of summons dismissed in its entirety as void ab initio; costs awarded to Defendant Second.
Legal Topics
Bankruptcy Leave Requirement, Locus Standi, Misjoinder/misnaming, Strike Out/dismissal, Proof of Debt, Costs
Source Language
Malay/English
Insolvency Civil Procedure Bankruptcy Leave Requirement Locus Standi Misjoinder/misnaming Strike Out/dismissal Proof of Debt Costs

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Parties

Boon Chong Service Centre

Plaintiff

CIMB Berhad

Defendant 1

Pengarah, Jabatan Insolvensi Malaysia

Defendant 2

Dinesh A/L Divakaran

Defendant 3 (bankrupt)

Procedural Posture

Civil Suit / Judgment on Interlocutory Application to Strike Out Under Rules/order 18 Kaedah 19

Legal Issues

  1. 1 Whether leave of court under s8(1)(a) Insolvency Act 1967 was required before commencing proceedings involving a bankrupt or the bankrupt's property
  2. 2 Whether the Director General of Insolvency (Pengarah, Jabatan Insolvensi Malaysia) was properly named and liable for the plaintiff's claim
  3. 3 Whether the writ should be dismissed as frivolous, vexatious or an abuse of process for failure to comply with insolvency procedure

Ratio Decidendi

Plaintiff failed to obtain the mandatory leave of court under s8(1)(a) Insolvency Act 1967 before initiating proceedings involving a bankrupt's property and/or naming the insolvency administrator; accordingly plaintiff lacked locus standi and the writ was an abuse of process and void ab initio, warranting dismissal with costs to Defendant Second.

Court Disposition

Application by Defendant Second allowed; writ of summons dismissed in its entirety as void ab initio; costs awarded to Defendant Second.

Orders

  • Writ of summons dated 25.5.2023 against all defendants is dismissed/cancelled ab initio
  • Plaintiff to pay costs to Defendant Second