Judgment Debtor Summons (JDS)
Judgment Debtor Summons (JDS)
Action
Person In Charge
*Clerk
(to draft)
(1) Refer to the standard JDS and
Leave to Issue JDS.
> F.175; 176; 177 ROC 2012
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(2) Enter diary of the relevant
dates.
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(to extract)
(1) Upon extraction, double
check on the details and form
used
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(2) Clerk to enter diary and
proceed with distribution to the
respective process server.
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(3) Please observe the first
Hearing date; service need to be
done within 7 days prior to the
hearing.
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(4) Double check the details to
avoid unnecessary amendment
later.
1. Check JID
If more than 6 years?
-to
prepare
leave
to
execute/enforce Judgment OR
for Corporation JD, leave also
need
to
be
prepared
to
execute/enforce
Judgment
against the Director.
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2. Make sure Feasibility Search
(FS) has been conducted by
client/ in the event client has
not done so to proceed with our
own FS (additional costs will be
billed to client).
Identification of the JDs
location is IMPORTANT
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3. Inform client the risk if such
premise belongs to a third
person or Judgment Debtor
shared
with
any
other
person.
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4. Make
sure
the
balance
outstanding is the latest one
If the balance outstanding
> RM30,000.00?
-to advise client to proceed with
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*LA/Pupil
(1)Identify JD;
If the Judgment or order is
against a Corporation?
-an officer of the JD may be
summoned that includes past
officers.
>[s.4(1),(2) Debtors Act
1957];
CHECKLIST: JDS
Bankruptcy (or if it is suitable to
wait until accumulating and
reaching such amount).
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5. Prepare the JDS (and leave
if necessary).
6. Filing of the documents:
(a) Request for Judgment Debtor
Summons [F.174 ROC];
(b) to attach a sealed copy of
the Judgment
(c) Judgment Debtor Summons
in either one of the forms [in
F.177]
before
the
date
of
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2. If JD evading service?
>r.11D(2)
Generally
O.74
r.11D(2)
provides that the JDS must be
served personally to JD.
Nonetheless, the wording of the
rule suggest that the Court may
order otherwise: unless the
Court otherwise orders
O.62.r.5: is required to be
served personally on any
personit appears that it is
impracticable for any reason
to serve
>F.133
(F.134)
Case:
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(Order);
7. Extraction of JDS
2. Service
OR
Affidavit
Untuk
CHECKLIST: JDS
>Lim Gag @ Lim Hua Chuan v
Ng Sen Yap (Berniaga Sebagai
Swee Choon Hin Trading Co.)
(2000) MLJU 706 HC Melaka,
Ahmad Maarop, JC
*Clerk:
(1)Get outcome from process
server
(2)Adhere to the hearing date
(3)If JD evade service?
-Inform lawyer
(4)To prepare application for SS
in timely manner.
*Lawyer:
Confirm and/or verify that there
is such event warrant for SS
application.
3. Court
Hearing:
1. 1st Hearing:
*Clerk:
/ \
If JD not
present
request
for
Perintah
Untuk
Menangkap
CHECKLIST: JDS
OR
JDS is served & JD absent
Request
for
Order to be
recorded under
s.4(5) of the
Debtors Act
*LA/Pupil
(only in Magistrate Court):
Request
for
another date
to
enable
party to file
application for
order of arrest.
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(i) The
JD
financial
status,
preferably the JD need to
prove by tendering any payslip, receipts and so on;
(ii)
CHECKLIST: JDS
against the JD;
(iii)
(iv)
(v)
(vi)
Proposed or instigate JD to
propose
amount
of
installment
payment/lump
sum
with
terms
(after
collecting details during JDs
examination).
(vii)
Record
terms
examination
after
CHECKLIST: JDS
committing JD into prison, to
refer to item 4(b) below.
4. Once
recorded
(ii)
(iii)
(iv)
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the
hearing,
the
*Clerk:
To inform client on the terms
recorder/directed by the Court.
Informing other relevant details
or information to the client as
well.
In the event of item (b) happens,
to
prepare
praecipe
and
Judgment Notice: F.178,174
Order for commitment: F.180
*LA/Pupil:
Make sure the Judgment Notice is
served accordingly before the
date appointed. Not less than 4
clear days.
In the event Judgment Notice has
not been served, to apply for
another date.
To understand the purpose of
Judgment Notice and the hearing
therein.
CHECKLIST: JDS
court may:
(a) The JD must be heard, to
show cause for his/her
non-compliance.
(b) Make
an
order
of
commitment to vary the
installment order; or
Cf; s.13 Debtors Act
1957
Case in point:
Leow Wei Pin v Meyappa
Chettiar [1959] MLJ 265;
(c) Make
an
order
of
commitment and direct
the execution to be
suspended until JD pays
the amount according to
the Order. [F.180 ROC
2012]
(v)
Commitment:
Ref: s.4(8) and (9) of the
Debtors Act 1957:
(8) Court may commit JD to
civil prison if there is no
sufficient cause is shown
until earlier payment of any
instalment(s) or other sum.
Imprisonment
may
be
extended up to 6 weeks.
(9) However, before JD can
be committed to prison, it
must appear that, since the
date of the Order directing
payment the JD has had
sufficient means to comply
with the Order.
Case in point:
1. Sathappan v Lim Chooi Hock
& Anor [1962] 1 MLJ 378
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CHECKLIST: JDS
2. Leow Wei Pin v Meyappa
Chettiar [1959] 1 MLRH
486 .
(c) Imprisonment:
5. Others
(i)
(ii)
If
there
is
further/subsequent order be
made for the deposit, and
the JC failed to make such
payment, the Court may
order that
the
JD
be
discharged.
(s.10(2)
Debtors Act).
1. Recoverability of expenses
and costs incurred
S.11 Debtors Act: it shall be
claimable and recoverable under
the Judgment Debt.
2. Satisfaction or payment by
debtor
r.16 of ROC 2012: payment can
be made to the sheriff or bailiff
during his imprisonment.
r.17 once payment is made and
debt is satisfied.
3. Special
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situation
in
*Clerk:
Once the Judgment Debt is
satisfied in respect of an
imprisoned debtor, the Judgment
Creditor shall lodge F.181 signed
by the JC to the Court.
*LA/Pupil:
Make sure all the payment has
been made to confirm with client
as well on the payment received
by client.
CHECKLIST: JDS
bankrupt or administration
order against debtor.
If receiving Order has been made
against the JD or an administration
order is made under s.106
Bankruptcy Act 1967 no order
shall be made.
If order for commitment has been
made the order if not executed
shall be recalled and cancelled, if
he is in prison he shall be
discharge.
Costs:
r.23 the costs and any incidental to
order for arrest, commitment and
attachment and any amount spent
by the Plaintiff shall be the
Plaintiffs costs in the cause in
any event. s.11 Debtors Act
1957.
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