Written Submission

Question 1
Bank Kaya Berhad (‘BKK’) wants to proceed with creditor’s petition against Mr
Hutang who has not complied with the bankruptcy notice served on him by BKK.
BKK was instructed by its solicitors to execute the creditor’s petition and affidavit
verifying the petition to enable them to proceed with the bankruptcy proceedings. The
creditor’s petition and affidavit verifying the petition were executed on 10.3.2020.
The creditor’s petition and the verifying affidavit were filed into court on 14.3.2020
and were then served on you as solicitors for the debtor, Mr Hutang.
You have notified Mr Hutang regarding the creditor’s petition. He now seeks your
advice on the following:
(i) Whether the creditor’s petition was properly served on him;
(ii) Whether the creditor’s petition was invalid because the verifying petition
was affirmed before the creditor’s petition was presented.
On 1.4.2020, you were informed by Mr. Hutang’s wife that he has passed away. Mr
Hutang’s wife wants to know whether the bankruptcy proceeding will continue.
Advice Mr Hutang’s wife.
The first issue is whether the creditor’s petition was properly served on Mr Hutang?
Based on Rule 108 of Insolvency Rules 2017, a creditor’s petition shall be personally
served and shall be effected by delivering a sealed copy of petition to the debtor.
Under Rule 110 of Insolvency Rules 2017, the service must be supported by an
Affidavit of Service. In the case of Lim Boon Kiak v Affin Bank Bhd, a creditor's
petition against a judgment debtor must be served personally. It cannot be served on a
firm of solicitors.
As to apply, BKK had served the creditor’s petition and the affidavit on the solicitors
of Mr Hutang and had not personally served the creditor’s petition and affidavit on Mr
Hutang himself which renders the service to be not effective on Mr Hutang.
Therefore, the creditor’s petition was not properly served on Mr Hutang.

The second issue is whether the creditor’s petition was invalid because the verifying
affidavit was affirmed before the creditor’s petition was presented?
Under Rule 105 of Insolvency Rules 2017 a creditor's petition shall be verified by an
affidavit and shall file the affidavit to the person who can depose to them. In the case
of Sobri Arshad v Associated Tractors SB, the creditor's petition was dated
10.11.89 but the affidavit verifying the petition was dated 9.11.89. It was held that the
creditor’s petition was dismissed holding that it was not curable as it is a fundamental
error under S. 131 of the Bankruptcy Act 1967. The affidavit cannot be affirmed
before the date of creditor’s petition. It can only follow the same date as the creditor’s
petition or after the issuance of creditor’s petition. In the case of Re Ho Weng Keong
ex p Marketlink (M) S/B, an affidavit can be filed on the same day or after the
petition is issued. This is because we cannot verify something that does not exist yet,
this is called an unborn petition then. Affidavit filed together with the creditor’s
petition is good in law. In the case of Teoh Thean Peng v D & C Leasing Sdn Bhd,
the affidavit verifying the petition must be affirmed after the petition has been
attested. The affirmation of the verifying affidavit shortly before the petition is filed
but after it has been duly attested is permissible.
Upon the expiry of the 7-day period to respond to the bankruptcy notice and in the
absence of opposition or setting aside, the creditor can file the Creditor’s Petition
against the debtor. Every petition must be verified by an affidavit verifying the
contents of the Petition to be affirmed by either the creditor or someone on the
creditor’s behalf who has knowledge of the facts based on Rule 105 of Insolvency
Rules 2017. An affidavit verifying the petition can be issued on the same day or after
the issuance of creditor’s petition not before as in Sobri Arshad v Associated
Tractors SB.
Based on the facts given, the creditor’s petition and affidavit were served
simultaneously by the creditor. This is a good way to file both at the same time, with
reference to Re Ho Weng Keong and Teoh Thean Peng v D & C Leasing Sdn Bhd.
In conclusion, the creditor’s petition was valid because the verifying affidavit was
affirmed together when the creditor’s petition was presented.
The third issue is whether the bankruptcy proceedings against Mr Hutang will
continue since he has passed away on 1.4.2020?
Based on Section 96 of Insolvency Act 2017, the death of a debtor does not
invalidate the bankruptcy proceedings pre-commenced and served during his lifetime.
Under Section 122 (2), the creditor may petition the court for the administration of
the estate of the deceased. Under Rule 111 of Insolvency Rules 2017, the court may
dispense with service of the petition on the deceased debtor and instead order for
service to be effected on his personal representative or such other persons.
The bankruptcy petition was served upon Mr Hutang on 14.03.2020 which is during
his lifetime. By virtue of S. 96, S. 122 and Rule 111, the death of Mr Hutang does not
invalidate the bankruptcy proceeding. The petition may be stayed if the debtor dies
before service of the petition on him.
In conclusion, the bankruptcy proceedings against Mr Hutang can continue since he

has passed away on 1.4.2020.
As to summarize our findings on Mr Hutang’s possible outcome , all of the requisites

in terms of conditions under section 5 Insolvency Act are fulfilled by BKK in order to
successfully commence bankruptcy proceeding against Mr Hutang . However, the
only recourse that might be available (if any) for Mr Hutang is, by objecting the
petition by showing any cause against the Creditos Petition under R 117 or R 118 of
Insolvency Rules if he raises a counterclaim or set off via proceeding by summons in
chambers supported by an affidavit

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Question 1

(i) Whether the creditor’s petition was properly served on him;

Therefore, the creditor’s petition was not properly served on Mr Hutang.

In conclusion, the bankruptcy proceedings against Mr Hutang can continue since he

As to summarize our findings on Mr Hutang’s possible outcome , all of the requisites

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