PEMIUTANG PENGHAKIMAN Ashok Kandiah and Norvindran Sivarajah for the Appellant/Judgment Creditor [Messrs Kandiah Partnership] PENGHUTANG PENGHAKIMAN G Ragumaren and David Ragumaren for the Respondent/Judgement Debtor [Messrs G. Ragumaren &

PEMIUTANG PENGHAKIMAN Ashok Kandiah and Norvindran Sivarajah for the Appellant/Judgment Creditor [Messrs Kandiah Partnership] PENGHUTANG PENGHAKIMAN G Ragumaren and David Ragumaren for the Respondent/Judgement Debtor [Messrs G. Ragumaren &

Absence of any record showing the Registrar's reasons for setting aside the first Bankruptcy Notice meant res judicata could not be established; the Guarantee and Indemnity expressly preserved creditor's rights and rendered the guarantor a principal debtor whose liability survived any settlement with the principal borrower; therefore the respondent remained liable and the second Bankruptcy Notice was valid and must be reinstated.

Citation
DALAM PERKARA KEBANKRAPAN NO. WA-29NCC-20-01/2021 (Mahkamah Tinggi)
Parties
Appellant / Judgment Creditor: Kuari Pati Sdn Bhd; Respondent / Judgment Debtor: Mariayee A/P Ratnam
Court
High Court
Jurisdiction
Malaysia
Judgment Date
26 November 2021
Case Number
DALAM PERKARA KEBANKRAPAN NO. WA-29NCC-20-01/2021 (Mahkamah Tinggi)
Procedural Posture
Bankruptcy Appeal / High Court Appeal Against Registrar's Interlocutory Order to Set Aside Bankruptcy Notice
Outcome
Appeal allowed; order dated 25.5.2021 setting aside Bankruptcy Notice set aside; Bankruptcy Notice dated 11.1.2021 reinstated with costs
Legal Topics
Res Judicata, Guarantee and Indemnity, Settlement, Functus Officio, Reinstatement of Bankruptcy Notice
Source Language
Malay/English
Bankruptcy Contract Civil Procedure Suretyship/guarantee Res Judicata Guarantee and Indemnity Settlement Functus Officio +1 more

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Parties

Kuari Pati Sdn Bhd

Appellant / Judgment Creditor

Mariayee A/P Ratnam

Respondent / Judgment Debtor

Procedural Posture

Bankruptcy Appeal / High Court Appeal Against Registrar's Interlocutory Order to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether payment by the principal debtor precludes issuance of a subsequent Bankruptcy Notice against the guarantor by operation of res judicata
  2. 2 Whether the judgment debtor/guarantor remains liable for outstanding sums under the Guarantee and Indemnity despite settlement/payment by the principal debtor

Ratio Decidendi

Absence of any record showing the Registrar's reasons for setting aside the first Bankruptcy Notice meant res judicata could not be established; the Guarantee and Indemnity expressly preserved creditor's rights and rendered the guarantor a principal debtor whose liability survived any settlement with the principal borrower; therefore the respondent remained liable and the second Bankruptcy Notice was valid and must be reinstated.

Court Disposition

Appeal allowed; order dated 25.5.2021 setting aside Bankruptcy Notice set aside; Bankruptcy Notice dated 11.1.2021 reinstated with costs

Orders

  • Appeal allowed overturning the Registrar's order dated 25.5.2021 which allowed the Summons in Chambers dated 29.1.2021
  • Bankruptcy Notice dated 11.1.2021 reinstated against the Judgment Debtor