- Introduction to Judgment Debtor Summons
A judgment debtor summon is an enforcement procedure for the recovery or payment of money.
For instance, if a defendant fails or refuses to pay a judgment sum worth RM25000, then a judgment debtor summons will be taken out against the defendant. The defendant will then be known as the judgment debtor who is the person against whom the judgment or order is made. On the other hand, the person taking out the judgment debtor summons will then be known as the judgment creditor.
As established in Nakano (Malaysia) SDN.BHD. v Oriental Wealth (M) SDN. BHD. [2000] MLJU 435, the purpose of a judgment debtor summons is to discover the means of a defendant and as to whether a defendant can pay the judgment debt. It is used for the discovery of information on the assets and financial means of the judgment debtor as the judgment debtor will be required to declare his financial abilities and produce proof of income and expenses.
- Application Procedures for Judgment Debtor Summons
The principles guarding the application of this order are laid down in the Debtors Act 1957 together with Orders 48 and 74 of Rules of Court 2012.
If the judgment debtor is an individual, the judgment creditor must then apply for a judgment debtor summons by filing a request in Form 174. The judgment creditor will also file in court a judgment debtor summons in Form 177. The judgment debtor summons has to be served personally on the person summoned at least seven days before the day fixed for the hearing.
The judgment debtor will then be required to attend before the registrar to disclose whether any debt is owing to the judgment debtor and if so, explain why the judgment debt has not been settled. Furthermore, the judgment debtor will also be examined as to whether he or she has any property or any means of satisfying the judgment or order. The judgment debtor may also be required to declare his or her financial abilities by producing relevant books, papers and documents relating to such property.
If the debtor is a company, the application of the judgment debtor summons is made ex-parte in Form 175 supported by affidavit in Form 176. Once leave is granted, the judgment debtor summons in Form 177 may then be issued and served on the judgment debtor together with the affidavit.
The Court will then mix the matter for hearing. The directors or secretaries of the company would be required to come before the Court. The Court will then examine the directors by asking them to disclose their bank accounts, assets and other relevant records. The Court may also require them to disclose their financial expenses. The Court will then decide the manner in which the company will have to settle the judgment sum.
The Court may then make an order for the debtor to repay the debt in installments or in whatever manner the Court thinks is reasonable. This process will generally take three or four months to be determined in Court.
- Failure to Make Payment by the Judgment Debtor
In the event that the judgment debtor does not appear in Court or defaults in making the payment despite the service of the Judgment Debtor Summons, committal proceedings may be commenced where the Court may order him to be arrested or be brought before the court to be examined.
The application for an order of arrest shall be made ex parte by notice of application supported by an affidavit to a Judge in Chambers. It would require him to explain why he or she had failed to comply with the order and show cause as to why he should not be sent to prison for failing to comply with the court order. This notice shall be in Form 179 and it has to be served personally at least 4 days before the debtor’s attendance.
The court may then decide to either vary the terms as it thinks just or order to commit the judgment debtor to prison.
However, it should be acknowledged that the judgment debtor would not be committed to prison unless it does appear that he or she has the sufficient means to comply with the order.
- Conclusion
According to section 6(3) of the Limitation Act 1953, it is established that the enforcement of the judgment cannot be brought after the expiration of twelve years from which the judgment became enforceable. It is also noted that no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.
Therefore, a judgment creditor is advised to enforce the judgment promptly as any mode of execution will be barred once the limitation period has passed.
Lee Nicholas Heng Jin
The University of Sheffield
