COMPANY LAW

P3120
ASSIGNMENT 2
PREPARED BY:
NORANIZAH BINTI RAHMAT 06DAT09F2010
SITI AMINAH BINTI MOKHTAR 06DAT09F2025
FARAH NADIAH BINTI OMAR 06DAT09F2035
MOHD RUSYDI BIN NOR AZMI 06DAT09F2015
PREPARED FOR:
MISS HYRIDA BINTI OTHMAN

IN THE HIGH OF MALAYA AT JOHOR BAHRU

IN THE STATE OF JOHOR DARUL TAKZIM

COMPANIES (WINDING UP) NO: MT3-28-65 OF 2008

IN THE MATTER OF SECTION 218 THE COMPANIES ACT 1965

AND

IN THE MATTER OF COSMOCORP SDN. BHD

BETWEEN

MERLIN IN JOHOR BAHRU SDN BHD (PETITIONER)

AND

COSMOCORP SDN.BHD (RESPONDENT)

(COMPANY NO:130432-W)
WINDING UP BY THE COURT

A WINDING UP BY THE COURT IS IN INITIATED BY THE PRESENTATION OF A PETITON

BY A PERSON WHO IS ENTITLED TO DO SO . THIS PETITON MUST BE BASED UPON

ONE OF THE GROUND SET OUT IN THE ACT. A PETITION FOR THE WINDING UP OF A

COMPANY BY THE COURT MAY BE PRESENTED EVENT IF THE COMPANY IS IN

VOLUNTARY LIQUIDATION. HOWEVER,THE COMPANYMAY NOT MAKE A WINDING UP

ORDER UNLESS IT IS SATISFIED THAT THE VOLUNTARY WINDING UP CAN NOT BE

CONTINUED WITH DUE REGARD TO THE INTERESTS OF THE CREDITORS OR

CONTRIBUTORIES.

PETITION BY THE COMPANY

THE COMPANY MAY BE SPECIAL RESOLUTION RESOLVE TO BE WOUND UP THE

COURT , RATHER THAN VOLUNTARILY. THE DIRECTOR MAY BE AUTHORIZED BY AN

ODINARY RESOLUTION OF THE MEMBERS TO PRESENT A PETITION TO WIND THE

COMPANY UP
FACTUAL BACKGROUND

COSMOCORP SDN.BHD ( THE RESPONDENT) WAS ON 09.11.1986

INCORPERATED AS LIMITED COMPANY UNDER THE ACT. THE AUTHORIZED CAPITAL

OF THE RESPONDENT IS RM100,000.00 DEVIDED INTO 100,000-00 SHARE OF

RM1.00 EACH . THE AMOUNT OF CAPITAL PAID UP OR CREDITED AS PAY UP IS

RM25,505.00. THE MAIN OBJECT FOR WHICH THE RESPONDENT WAS ESTABLISHED

IS TO CARRY ON THE BUSINESS OF PROVIDING THE FACILITIES AND SERVICES OF

THE SAUNA AND HEALTHY CENTRE.

CASES

THE RESPONDENT IS REQUIRED UNDER THE NOTICE TO PAY UP THE SUM OF RM

1,160,000.00 WITHIN 21 DAYS FROM THE RECEIPTS OF THE NOTICE BUT NO

PAYMENT GAS BEEN RECEIVED SINCE THE SERVICE OF THE NOTICE. THE

STATUTORY DEEMED THAT THE RESPONDENT IS UNABLE TO PAY ITS DEBTS.

THE RESPONDENT FAILED TO SATISFY THE JUDGMENT. THE FACT THAT THE DEBTS

WAS SUE TO BE DISPUTED. LEARNED COUNSEL FOR THE PETITONER SUBMITTED

THAT THE PETITIONER WAS GROUNDED UPON A STATUTORY DEMAND OF A

CONSENT JUDGMENT RECORDED IN THE SESSION COURT,JOHOR BAHRU. THE

PETITIONER IS ENTITLED TO PRESENT A WINDING UP PETITION AGAINST THE

RESPONDENT IN ACQURING THE STATUS OF “CREDITOR” FOR THE COMPANY.

A DEBTS UNDER A JUDGMENT WHICH IS UNDER APPEAL CANNOT BE SAID TO

UNDISPUTED DEBTS. A JUDGMENT DEBTS REMAIN DUE IF THERE IS A PENDING

APPEAL AGAINST THE JUDGMENT.

AT THIS STAGE THE PETITIONER IS NOT A CREDITIR OF THE RESPONDENT UNTIL

THE JUDGMENT OBTAINED IN ITS FAVOUR HAS BECOME FINAL AND CONCLUSIVE. IT

WAS SUBMITTED THAT THE PETITION IS DEFECTIVE AS THE CALCULATION

PERTAINING TO THE THE DEBTS IS NOT CONSISTENT WITH THE CONSENT

JUDGMENT. THE PETITIONER WAS GIVE THE NOTICE TO THE RESPONDENT OF THE

DATE 18 FEBUARY 2007. THE COMPANY WOUND UP BY THE COURT AT 5 MAY 2009.
FINDING OF THE COURT

UNDER SECTION 218 (E) OF THE ACT:

A COMPANY IS DEEMED TO BE UNABLE TO PAY ITS DEBTS IF:

a) A CREDITOR BY ASSIGNMENT OTHERWISE TO WHOM THE COMPANY IS

INDEBTED IN A SUM EXEEDING FIVE HUNDRED RINGGIT THEN DUE HAS

SERVED ON THE COMPANY BY LEAVING AT THE HAND OF HIS AGENTS THERE

UNTO LAWFULLY AUTHORIZED REQUIRING THE COMPANY TO PAY THE SUME

SO DUE , AND THE COMPANY HAS FOR THREE WEEKS THEREAFTER

NEGLECTED TO PAY THE SUM OR TO SECURE OR COMPOUND FOR IT TO THE

RESONABLE SATISFACTION OF THE CREDITOR.

b) EXECUTION OR OTHER PROCESS ISSUED ON A JUDGMENT DECREE OR ORDER

OF ANY COURT IN FAVOUR OF A CREDITOR OF A COMPANY IS RETURNED

UNSATISFIED IN WHOLE OR IN PART.

c) IT IS PROVED TO THE SATISFACTION OF THE COURT THAT THE COMPANY IS

UNABLE TO PAY IT DEBTS; AND IN DETERMINING WHETHER A COMPANY IS

UNABLE TO PAY ITS DEBTS THE COURT SHALL TAKE INTO ACCOUNT THE

CONTIGENTS AND PROSPECTIVE LIABILITIES OF THE COMPANY

CONCLUSION

THE RESPONDENT MAY SUCCESFULLY OPPOSE THIS PETITION BY EITHER SHOWING

THAT THE DEBTS CLAIMED BY THE PETITIONER IS DISPUTED ON SUBSTANTIAL

GROUNDS OR THAT IT IS ABLE TO PAY ITS DEBTS AND ITS NOT INSOLVEND.

HOWEVER ON THE FACTOF THIS INSTANT CASE , TH COURT FINDS THAT THE

RESPONDENT HS FAILED TO DO SO .

FOR THE FORGOING REASON THE SHALL BE AN ORDER IN TERM OF THIS PETITION .

SUMMARY

COMPANIES WHO WINDING UP HIS COSMOCORP AND BHD AND ALSO AS THE

RESPONDEND.THE RESPONDEND IS INDEBTED TO COMPANY SUM OF

RM160000.000 THE PATITIONER’S IS MERUN IN JOHOR BAHARU SDN BHD AS A

CREDITOR OF COMPANY HAS CONCERNING THE ISSUE THAT THE JUDGMENT ON

WHICH THE PETITION IS BESED IS SUBJECT OF AN APPEAL TO THE COURT OF

APPEAL.COSMOCORP SDN BHD WAS WOUND UP BECAUSE RESPONDEND IS UNABLE

TO PAY UP THE SUM OF EM160000.000 WITHIN 21 DAY FROM THE NOTICE DATE ON

18.12.2007.COSMOCORP SDN BHD WAS WINDING UP BY THE COURT AT 5TH MAY

2009