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saman dalam kamar 2

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asked on Jul 17, 2012 at 16:53
by   justdoit
dear notalawyer,

i am not sure the SAR let me off the hook or i let the bank lawyer off the hook.

conclusion : SAR offered me 2 weeks time to reply the afidavit penyampaian, and there will be no further hearing and the judgement will be 3 weeks from now.

this is the longest session since i attend court.

(1)plaintif lawyer started the argument point by stating that my SIC merely to set aside cp. he argued that my content in afivadit sokongan bc act section 5(1)(c) and 6(2)(b) is not relevent to set aside the cp, plaintif comply with 6 months period for 5(1)(c)  and that 6(2)(c) only applicable for bankcruptcy hearing, not for hearing on SIC. SAR agreed to him, he asked me if i understand the section.

referring to the bc act i brought along, i insist that the key words in 5(1)(b) refers to the "act of bacnkruptcy" not about tht "6 months" where i did not commit any act of bankruptcy at all. for this part, SAR seems to agreed with me by nodding his head. (he told the lawyerr in front of me that he also dont understand 6(2)(c).

same as my explanation to 6(2)(b).

(2)both the bank lawyer and SAR agreed and told me that the colleague afidavit and spouse afidavit was not acceptable for this case, because i cannot bring a third party into the case , and they told me only bicara's time will be relevent. i am confused.

i argued that if this is the situation why the penghantar saman afidavit also a third party but aceptable. both of them smile and didnt answer me. then the SAR told the bank lawyer that "layman is like that" in front of me. after that i heard them say something about 'without exhibit' or somehting like that... this is the most fristated part of the hearing.

(3) SAR ask when did i receive the afidavit jawapan, and did i reply?
i told him i cant recall. bank lawyer said that period of reply already over and even the if i reply is not valid. i ask the SAR if that was the case, why was the afidavit jawapan acecptable which it was only filed on the last day of previous mention date. the SAR then asked if i wish to reply. i said yes.

(4)i showed to SAR my files search receipt and told him i could not find notis penyampaian during the search date, SAR immediately showed that he has in his file. then i asked bank lawyer to show a copy of original notis penyampaian together with receipt of filing as proof, bank lawyer answered that it is not necessary for plaintiff to show the documents to the court. SAR again silence as agreed to the point.

then i point out my afidavit sokongan proved that i was at work at impossible for me to show up in both place at the same time on the day bc notis was alleged to have been delivered. and furthermore, i moved my IC to the place where the notis penyampaian bn at the row that was not my name in it. i mentioned that the my point in afidavit sokongan is referring to the act of backruptcy which i never did, coz the bn was served to someone that i dont even know.

both of them stunned with the error, then AGAIN, both merely leave out my point saying that it was merely clerical error. SAR again remind me that the hearing was to set aside the cp and he would not considered this point. i told him that it is related because the CP is based on the bc notis.

i suspect SAR was uncertain to make a judgement, and he informed me to summit reply in 2 weeks and he shall make his decision without further hearing.

i felt i have done something silly yet at the same time confused the SAR perhaps.
i dont know to laugh or to cry.....

definitely need yr analysis and help now. bank lawyer already knew that my name was in correct in the notis penyampaian of bn.
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answered on Jul 17, 2012 at 17:24
by   pitstop
dear notalawyer,
In fact i requested to set aside with merit n with cost rm5k. SAR laughed me off again with the word 'merit'.
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answered on Jul 18, 2012 at 13:52
by   notalawyer
I am extremely busy at McDonalds today.  I hope to reply all your questions on Saturday.

Prepare your reply Affidavit and also a Written Submission (arguing why the Petition should be dismissed) to strengthen your case.

Post it here.
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answered on Jul 18, 2012 at 13:58
by   notalawyer
By the way, you did a good job yesterday.
You have caught the bank lawyers an embarrasing situation where they have to "hide" from you the Affidavit of Service, it's swearing date and it's filing date.

When it comes to the Court, anybody who has something to hide must be the liar.
Take advantage of this issue fully in your reply affidavit and submission.
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answered on Jul 18, 2012 at 21:19
by   pitstop
dear notalawyer,
need advice on scope of my reply, shall my reply cover the issues raised during the hearing? Or just base on the content in afidavit jawapan?
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answered on Jul 19, 2012 at 17:08
by   notalawyer
shall my reply cover the issues raised during the hearing? Or just base on the content in afidavit jawapan?

Do one more file search asap.
Reply affdavit to cover both Affidavit iof Service for Bankruptcy Notice and also their recent affidavit. ( which you didn't reply )

Written Submission to cover the issues and arguments.
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answered on Jul 20, 2012 at 13:01
by   notalawyer
Prepare a letter addressed to the SAR and CC the bank lawyers.

In the letter you state that you will be submitting a Written Submission to help the court recap all the argument points and issues on your case and will have no objections if the plaintiffs also submit their own Written Submission.  Do this early.

Post the letter here.
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answered on Jul 20, 2012 at 19:29
by   justdoit
xxxname
xxxxx address

20th July 2012

Timbalan Pendaftar
Mahkamah xxxxx
xxxxxx

Tuan,
Per :  Mahkamah Tinggi xxxx
No. Kebankrapan xxxxxx
xxxx Bank lwn my name

Merujuk kepada perkara di atas dan susulan kepada sesi perbicaraan pada xx/xx/2012.

Adalah dimaklumkan bahawa saya, selaku defenden dalam kes di atas, akan mengemukakan Written Summission untuk membantu semua pihak yang terlibat mengimbas kembali perkara-perkara yang dibangkitkan dalam sesi berkenaan. 

Pihak defenden juga tidak ada sebarang bantahan sekiranya pihak plaintif berhasrat mengemukakan Written Summission untuk tujuan yang sama.

Yang benar,

xxxxxx
My name

S.k. Bank lawyer
xxxx


Dear notalawyer,
would that be sufficient? or technically, i should use "penghutang penghakiman" instead of pihak defenden? tks
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answered on Jul 21, 2012 at 00:13
by   notalawyer
xxxname
xxxxx address

20th July 2012

Timbalan Pendaftar
Mahkamah Tinggi xxxxx
UP:

Tuan,
Per : No. Kebankrapan xxxxxx
ABC Bank Berhad - Penmiutang Penghakiman
   - Penghutang Penghakiman

Merujuk kepada perkara di atas dan susulan kepada sesi perbicaraan pada xx/xx/2012.

Adalah dimaklumkan bahawa saya, selaku Penghutang Penghakimann dalam kes di atas, akan memfailkan Hujahan Bertulis sebelum tarikh DD/MM/YYYY ( affidavit filing date ) untuk membantu Mahkamah memahami fakta dan isu-isu kes ini dengan lebih terperinci dengan harapan Mahkamah dapat mencapai keputusan yang tepat dan adil.

Pihak Penghutang Penghakiman tidak ada sebarang bantahan sekiranya pihak Pemiutang Penghakiman juga berhasrat memfailkan Hujahan Bertulis mereka.

Yang benar,

xxxxxx
My name

S.k.
Tetuan
Address

Ok, fax this letter as above to SAR and bank lawyer asap.
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answered on Jul 21, 2012 at 01:02
by   pitstop
can only do it on sunday coz i do not have the sar name, a diff sar attended the case that day. I can only do file search on next working day on sunday.
Tks.
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answered on Jul 21, 2012 at 01:17
by   pitstop
dear notalawyer,
you mentioned "fax",and also "memfailkan", i suppose the meaning here is to file it like the way i file it for afidavit this sunday? At he same time send the letter by register to bank lawyer after faxed, right?
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