PEMIUTANG PENGHAKIMAN Norzi Nazri for the Respondent/Judgment Creditor [Messrs Goh Rafidah Tan] PENGHUTANG PENGHAKIMAN Sreether Sundaram and Narandra Kangatharan for the Appellant/Judgment Debtor [Messrs. Murali B Pillai & Associates]

PEMIUTANG PENGHAKIMAN Norzi Nazri for the Respondent/Judgment Creditor [Messrs Goh Rafidah Tan] PENGHUTANG PENGHAKIMAN Sreether Sundaram and Narandra Kangatharan for the Appellant/Judgment Debtor [Messrs. Murali B Pillai & Associates]

The creditor failed to prove on the required basis that the debtor was domiciled in Malaysia or had ordinarily resided or had a dwelling house or place of business in Malaysia or had carried on business or been a member of a firm within one year before presentation of the petition as required by section 5(1)(d); accordingly the creditor had no right to present the petition and the debtor's application to set aside the petition succeeds.

Citation
DALAM PERKARA KEBANKRAPAN NO. WA-29NCC-626-03/2020 (Mahkamah Tinggi)
Parties
Judgment Debtor / Appellant: Chandra Sekar; Judgment Creditor / Respondent: United Overseas Bank (Malaysia) Berhad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
13 September 2021
Case Number
DALAM PERKARA KEBANKRAPAN NO. WA-29NCC-626-03/2020 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy (insolvency Act 1967) / Appeal From Deputy Registrar Decision; Judgment on Appeal
Outcome
Appeal allowed; Deputy Registrar's decision set aside; debtor's application to set aside the Creditor's Petition allowed.
Legal Topics
Domicile, Ordinary Residence, Place of Business, Service of Process, Standing/locus, Section 5(1)(d) Insolvency Act 1967, Section 3(3) Insolvency Act 1967, Setting Aside Creditor's Petition, Costs, Public Policy
Source Language
Malay/English
Insolvency Bankruptcy Civil Procedure Jurisdiction Domicile Ordinary Residence Place of Business Service of Process +6 more

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Parties

Chandra Sekar

Judgment Debtor / Appellant

United Overseas Bank (Malaysia) Berhad

Judgment Creditor / Respondent

Procedural Posture

Bankruptcy (insolvency Act 1967) / Appeal From Deputy Registrar Decision; Judgment on Appeal

Legal Issues

  1. 1 Whether section 3(3) Insolvency Act 1967 is relevant to the timing of the act of bankruptcy
  2. 2 Whether requirements of section 5(1)(d) Insolvency Act 1967 (domicile, ordinary residence, dwelling or place of business, carrying on business or partnership membership within one year) were satisfied
  3. 3 Who bears the burden of proof to establish the requirements of section 5(1)

Ratio Decidendi

The creditor failed to prove on the required basis that the debtor was domiciled in Malaysia or had ordinarily resided or had a dwelling house or place of business in Malaysia or had carried on business or been a member of a firm within one year before presentation of the petition as required by section 5(1)(d); accordingly the creditor had no right to present the petition and the debtor's application to set aside the petition succeeds.

Court Disposition

Appeal allowed; Deputy Registrar's decision set aside; debtor's application to set aside the Creditor's Petition allowed.

Orders

  • Appeal allowed
  • Deputy Registrar's decision dated 26.3.2021 set aside