Advertisement

Self Represent & Defeating Affin Bank's Lawyer at Court of Appeal

462 Views  ⚫  Asked 2 Months Ago
asked on Nov 26, 2017 at 15:40
by   kunta_kinti
edited on Dec 18, 2017 at 02:18
 
For those who wish to know how to self represent, may follow this earlier thread.
 
https://www.lawyerment.com/answers/questions/12241/self-represent-at-mahkamah-rayuan-putrajaya-to-fight-affin-bank
 
 
This thread is to tell how Affin Bank & Gxx & Partners (Yes, correct. That Gxx & Partners) were defeated.
 
The Appellant's Written Submission is finally revealed here for readers. Avengers will elaborate how this submission managed to bring them DOWN.
 
 
<<<<<<<<<<<<<<<<<<<<<<<<<>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
 
 
 
DALAM MAHKAMAH RAYUAN MALAYSIA
(Bidang Kuasa Rayuan)
RAYUAN SIVIL NO: xx/2017
  
 
My Name (No. K/P : xxxx) …....... Perayu
AFFIN BANK BERHAD (No. Syarikat : 25046-T) …....... Responden
 
  
Dalam Mahkamah Tinggi Malaya di Alor Setar
Dalam Negeri Kedah Darul Aman, Malaysia
Perkara Kebankrapan No: xx/2015
  
 
My Name …….…. Perayu / Penghutang Penghakiman
(No. K/P : xxxx)
 
 
AFFIN BANK BERHAD ……….. Responden / Pemiutang Penghakiman
(No. Syarikat : 25046-T)
 
  
HUJAHAN BERTULIS PERAYU
( APPELLANT’S WRITTEN SUBMISSION )
 
  
A) FOREWORD
This is an appeal against the decision of the Commissioner of Justice which rejected my Appeal to Judge in Chambers against the decision of the Senior Assistant Registrar who rejected my Summons in Chambers application to set aside the Creditor’s Petition on the basis that the Judgement Debtor was served with an expired Notice of Bankruptcy.
  
 
B) ISSUES IN SUBMISSION
a. Was the Notice of Bankruptcy served expired?
b. Was the Judgement Debtor aware of the Notice Of Bankruptcy before it expired?
c. Is a Notice of Bankruptcy that was served expired still potent?
 
 
 
C) SUBMISSION
  
Was the Notice of Bankruptcy served expired? 
 
1. During the hearings, the respondent had always maintained in all pleadings and all submissions that the Notice was not served expired, even though they did not offer a better method of calculation of the dates.
   
2. However, after scrutinising our calculation table in detail, (page 84 appeals record) the Commissioner of Justice conceded with the Appellant’s contention that the Notice of Bankruptcy was served expired. For clarity we quote the Commissioner of Justice’s comment (on paragraph 9 of her Grounds of Judgment)
  
But I agree with the appellant that the 7th (last) day of the 7-day period falls on Tuesday 15th December; and this means that the effective date of service of the bankruptcy notice fell on 16th December.
  
3. On 16th December 2015, the Notice of Bankruptcy has expired by 2 days.
 
We are in full agreement with the Commissioner of Justice on her finding.
 
 
 
Was the Judgement Debtor aware of the Notice Of Bankruptcy before it was expired?
 
 
4. Where the Commissioner of Justice mentioned in paragraph 15 her Grounds of Judgement that
There is no allegation that the Appellant was unaware of the bankruptcy notice….
this is where she fell into error.
 
 
5. It is wrong to assume that the Judgement Debtor was aware of the Bankruptcy Notice when the burden of proof lies with the Judgement Creditor to allege and prove. However in this instant case there was no allegation, no proof and no admission that the appellant was aware of the bankruptcy notice earlier in all pleadings.
 
 
6. From this wrong assumption, it follows that the authority cited by the honourable Commissioner of Justice which is
Kamaruddin b. Mohamed v United Motor Works (M) Sdn. Bhd [1982] 1 MLJ 126 cannot be applied in this instant case.
 
  
Is a Notice of Bankruptcy that was served expired still potent?
 
 
7. The Commissioner of Justice said (on paragraph 13 of her Grounds of Judgment) that :-
when the postings were effected, the bankruptcy notice was still valid, I, therefore, rule that the service is good service; and it is immaterial that the mere fact that the ‘deemed effective date’ of the service fell outside the validity period of the bankruptcy notice.
 
8. By saying that the “deemed effective date” is immaterial, she has taken upon herself to diminish the importance of the terms set out in the Court Order which allows the Substituted Service. Past authorities have shown that in a Bankruptcy case, all terms have to be strictly followed.
 
 
9. If the 7-day Deeming Clause is ignored, it is impossible for the Petition to state the exact date the Act of Bankruptcy was committed
 
 
10. It is possible that the Commissioner of Justice had confused the service of a Notice of Bankruptcy with a service of a Writ.
 
 
11. If a Notice of Bankruptcy that was served expired is still potent, when will it cease to be potent, is it 2 days after expiry or 5 days after expiry? As shown here, this lack of objectivity cannot be allowed to stand.
 
 
12. Therefore, clearly the boundary of which a Notice of Bankruptcy is still potent must be at the date of expiry itself.
 
 
13. This concludes that a Notice of Bankruptcy that was served expired is no longer potent and has no effect, therefore no Act of Bankruptcy was ever committed.
 
 
 
E) CONCLUSION
  
14. As the Notice of Bankruptcy was served expired and has no effect, it follows that there was no Act of Bankruptcy committed which then follows that the Judgement Creditor is not entitled to file the Creditor’s Petition, which then follows that the Adjudicating Order and Receiving Order (AORO) should not have been entered.
Therefore it is only right and just that the AORO must be annulled.
 
 
15. The appellant prays that :-
this appeal is allowed with costs of RM 15,000
the Creditor’s Petition is set aside
the Commissioner of Justice’s decision is reversed
the Senior Assistant Registrar’s decision is reversed
the Adjudication Order and Receiving Order is annulled
 
  
 
………………..
My Name
Perayu
 
  
Hujahan Bertulis ini difailkan oleh Perayu yang beralamat di
My Name
My Address
My Phone
0 had this question
Me Too
1 favorites
Favorite
[ share ]
22 Answers
« Previous   1   2   3   Next »

answered on Feb 8, 2018 at 10:43
by   thiva
Calling Avengers Malaysia....

My brother has been arrested by polis for something he did not do.
We have no money to pay lawyers.
How do i contact you guys and gals?
0 found this helpful
Helpful

answered on Feb 8, 2018 at 21:26
by   jeff005
What did the polis accuse your brother of?
How many was arrested together with brother?
Where is your brother now?

Nota
The above is non Avengers range of Social Services.
0 found this helpful
Helpful


« Previous   1   2   3   Next »

Your Answer





By posting your answer, you agree to the privacy policy and terms of service.