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Some Issues With Bankruptcy Notice

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asked on Aug 25, 2020 at 07:34
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edited on Aug 27, 2020 at 15:30
 
NOT IN ACCORDANCE WITH THE TERMS OF JUDGEMENT

SECTION 3 (1) (i) INSOLVENCY ACT 1967 


It states that a bankruptcy notice requiring debtor to pay the judgement debt in accordance with the terms of the judgement.

Examples of claim not in accordance with the terms of the judgement:

( a ) Bankruptcy Notice claims an interest of 10% p.a on judgement sum but the interest stated in the judgement is 9.5% p.a;

( b )  Bankruptcy Notice claims a late payment penalty but late payment penalty is not stated in the judgement.

Under such circumstance, the debtor can apply to court to set aside the Bankruptcy Notice on the ground that the claim stated in the Bankruptcy Notice is not in accordance with the terms of judgement.

The 7 days ruling that requires debtor to give notice to creditor within 7 days after being served the Bankruptcy Notice does not apply. Debtor's challenge can be made even after the 7 days.

Hope this thread would help those debtors who are under such circumstance.
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answered on Aug 29, 2020 at 21:43
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edited May 24, 2021 at 22:05
 
PART PAYMENT TO INVALIDATE BANKRUPTCY NOTICE

The part payment must be made under the following conditions:

( 1 )  before the issue of bankruptcy notice;

( 2 )  after the issue of bankruptcy notice but before it is served;

( 3 )  for substitute service, before the end of 7 days after the date of advertisement.

If your part payment is not deducted from the Bankruptcy Notice, then you need to inform the creditor within 7 days after the service of bankruptcy notice, either by giving a written notice or affidavit. 
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answered on Aug 30, 2020 at 21:54
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edited May 24, 2021 at 22:06
 
 AN AUTHORITY  OF HIGH COURT

" A CREDITOR'S RIGHTS ARE NOT IN ANY WHERE PREJUDICED IF HE ACCEPTS A LESSER AMOUNT FOR PAYMENTS OF A DEBT. SUCH ACCEPTANCE OF PAYMENT WOULD NOT RENDER THE BANKRUPTCY NOTICE DEFECTIVE. "
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answered on Aug 31, 2020 at 12:50
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edited May 24, 2021 at 22:15
 
(Permission to post have been sought and approved)

@harapan besar

In this thread, there are many fruitful and useful Court Authority Quoted.

As one of the many Authors in this website, I am duty bound to create awareness on latest updates on Court Authorities. I now seek your permission to add your case to the KB Library. All personal data and bank's name would be withheld, subject to the approval of Lawyerment's Panel of Lawyers & Editorial Board.

Regarding @rara_'s post:

Quote :
-----------------------------------------
No order (Bankruptcy Notice) due to:
(a) Full payment made before the Creditors Petition hearing
(b) Acceptance by Creditor for a composition sum
(c) Postponement of the hearing due to defence submitted by Judgment Debtor
(d) Acceptance of partial payment after service of Bankruptcy Notice
(e) Bankruptcy rules and procedures not strictly followed.
-----------------------------------------

This is just FlowChart, not excerpts of current laws contained within.
Readers must understand that this flowchart was created in 1999-2001 (copyright), which does not include current Authorities, new Precedents set by the Apex Courts.

So, the quote from @rara_ is correct, from his point of view and is not act of disparagement. It is up to contributors to this website to create awareness to any misconception to Bankruptcy Laws and updating of current new successful lawsuits / Appeals (after 2001). Only edits on (b) and (d) above may be required. However there can be issues as the Original Author may "no longer be around", so the best approach will be to create another new KB (Knowledge Base) Article.

Do take note that we are under Bankruptcy Act 2017 now.

That's all..  hoping to clear confusion to new readers who are less legalwise.. unlike the sifus, tokohs, senior forumers existing even before I joined on 31st Aug 2014. Today is my 6th Anniversary (Marriage to Lawyerment Forum - can file for divorce by either party) and will be on the way to the 7th year.. I'm just a new kid in an old block..
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answered on Aug 31, 2020 at 17:49
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edited May 24, 2021 at 22:16
 
Hi @jeff005,

For heaven's sake, please do not post anything here, so as to make this thread an easy reference for info that they are looking for.

Thank you very much.

PLEASE REFRAIN FROM MAKING ANY POSTING HERE.
THANK YOU.
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answered on Aug 31, 2020 at 18:22
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edited May 24, 2021 at 22:17
 
PENALTY FOR LATE PAYMENT

If the Notice Kebankrapan claims Penalty for late payment but penalty for late payment is not sated in the judgement, then, the Bankruptcy Notice is not in accordance with the terms of Judgement.

According to Court Of Appeal Case:
J Raju M Kerpaya v. Commerce International Merchant Bankers Bhd. [2000] 3 CLJ 104 said:

"A challenge on the ground that a bankruptcy notice requires a  debtor to pay a judgment debt otherwise than in accordance with the terms of the judgment may be taken at any time after service of the notice."

 
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answered on Sep 2, 2020 at 19:47
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edited May 24, 2021 at 22:20
 
VALIDITY OF BANKRUPTCY NOTICE

A bankruptcy notice is normally valid for 3 months

For example:

If date of issue is 03.06.2020, then it is valid for 3 months: 03.06.2020 to 02.09.2020

If the bankruptcy notice is served to you on 03.09.2020, the bankruptcy notice is already lapsed / expired.

Normally, it can be extended for another 2 months upon application.
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answered on Sep 6, 2020 at 06:25
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edited Sep 6, 2020 at 06:26
by   harapan besar
  EFFECT OF SERVICE OF THE BANKRUPTCY NOTICE

  1.  Service of the bankruptcy notice shall be before 3.30pm

       Example :

      (a) If you receive the bankruptcy notice at
            3.45pm on 02.09.2020, then it is 
            considered as receiving the bankruptcy
            notice on 03.09.2020.

            Hence, when you acknowledge the
            receipt of the bankruptcy notice,
            make sure you write down both 
            the date and time at which you
            receive it.
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answered on Sep 7, 2020 at 06:37
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edited May 24, 2021 at 22:22
 
ACKNOWLEDGE RECEIPT OF DOCUMENTS

1. It is advisable to acknowledge receipt of documents served to you by hand with a statement:
  "received but its contents not yet verified"

2. Documents served to you by hand or by post, you need to verify its contents to check whether any exhibits and / attachments is /are missing.

If any exhibit / attachment is missing, you need to notify the sender immediately in writing.

**   Please seek lawyer's advice on any legal matter.
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answered on Sep 8, 2020 at 08:06
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edited May 24, 2021 at 22:25
 
@harapan besar

I would like your opinions from excerpts found in one of your threads. I hope to have a clearer picture on what the actual bankruptcy law is all about. They were disparagement made against your earlier explanations.

Ref:


 
As far as I have read and understand that (d)..  Quote: (d) Acceptance of partial payment after service of Bankruptcy Notice  will not disqualify / invalidate the Notis Kebankrapan when a "composition" has been made between the Bank and the Debtor when the threshold limit (now RM 50k) remains over 50k at point of filing for Notis Kebankrapan.

The re-activated account do happen when a composition have been arranged and accepted by both the bank and debtor. Normally they would assign a new account number for this purpose.

Otherwise, the old account would have been frozen and deactivated once the bank have decided to file bankruptcy and initiate proceedings..

And I do not see any updates from anybody who has been taught about this RM10  "tactic" to indicate it worked..!! (and to express "Thank You").
All their posts thread faded unto oblivion (maybe even bankrupted already).

Your personal explanations / opinions would be much appreciated..
Please help this newbie (me)..
Thank you, sir..
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answered on Sep 8, 2020 at 09:42
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edited May 24, 2021 at 22:26
 
Hi @Jeff005,

1. Hope in future, anyone who wishes to post a question, just post a simple question without other personal dispute.

2. Your question which has about 300 words, can be reduced to: "whether by making a payment of RM10 after being served a bankruptcy notice, will make the bankruptcy notice defective?"

My answer is there is no prevailing law that supports such contention.

Unless the creditor has given a written consent to the debtor accepting the payment as final & full payment.

REMINDER: Just short & simple question without any personal dispute. 

** Seek lawyer's advice if you have any personal legal matters.
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