What is a Judgment Debtor Summons (JDS)?
A judgment Debtor Summons (JDS) is a type of summons issued by the court to compel the judgment debtor to appear before in Court to provides his financial details and how he could settle the judgment debt. It is one of the ways to enforce a money judgment. JDS is governed under Order 74 of the Rules of Court 2012 (“ROC 2012”) and section 4 of the Debtors Act 1957 (“DA 1957”).
The Procedure for JDS
Under O. 74, r. 11D (1) of the ROC 2012, the judgment creditor can apply ex parte for a JDS under Form 177 accompanied with a request for JDS signed by the judgment creditor or his solicitors in Form 174 under O. 74 r. 11A. This application needs to be attached and accompanied with a copy of the final judgment. If the judgment obtained is made against two or more judgment debtors, the judgment creditor may require a JDS to be issued against each or any of the judgment debtors (O. 74, r. 11B).
Once the JDS is sealed by the Court, it needs to be served to the judgment debtor by way of personal service at least seven days before the day fixed for hearing (O. 74, r. 11D (2)). After successful personal service, an affidavit of service (AOS) needs to be prepared and file to the Court. The judgment debtor would then require to be present at Court on the hearing date.
If the judgment debtor does not appear in Court and he does not have a reasonable excuse, the judgment creditor’s solicitor can pray to the Court for an order of arrest if the service of JDS was perfected. If there is short service, the Court generally allows a next hearing date to be fixed for the judgment debtor to attend Court. Under O. 74 r. 3A, the judgment creditor can apply for an order of arrest under section 6 DA 1957. The order of arrest under section 4 DA 1957 shall be in Form 172. The Court will also fix a subsequent hearing date for the order of arrest to be executed and to be brought to the Court. Under O. 74 r. 22, the order of arrest shall continue in force for one year and it may be renewed.
After obtaining the sealed order of arrest, judgment creditor’s solicitor needs to liaise with the court bailiff. Usually, the Court would collect a deposit and Court fees from the judgment creditor. This is allowed under section 9 of the DA 1957. Under section 10(1) of DA 1957, if deposit is required but not paid, the order of arrest will not be executed. The judgment debtor’s solicitor or the solicitor’s representative will follow the Court bailiff to execute the order of arrest.
If the judgment debtor is present on the hearing date or is brought to the Court, the Court will then be able to proceed with the hearing to evaluate the financial status of the judgment debtor. At any point of time before the hearing, the judgment creditor and judgment debtor could try to come into an agreement to settle the judgment debt. They could agree to settle one lump sum or to agree to settle the judgment debt through an installment plan. If an agreement has been reached, a consent judgment could be entered and the assessment hearing (bicara taksiran) will not be required. However, the judgment creditor needs to be present in Court to record his/her consent or an agreement could be signed by the judgment debtor signifying his/her consent to be bound by the agreed repayment amount and plan.
If the judgment creditor and judgment debtor could not come into an agreement, the Court will proceed with the assessment hearing to evaluate the judgment debtor’s financial status and his ability to settle the judgment debt. The Court may require the judgment debtor to produce documents to be inspected. First, the Court will need to know the income of the judgment debtor and his/her spouse (if any). Secondly, the Court will enquire whether the judgment debtor have any other commitments like house loan, car loan or personal loan. Thirdly, the Court will enquire the monthly essential expenses of the judgment debtor. For example, the expenses for food, rental, children’s education fees, utility bills, transportation fees, etc. lastly, the Court will determine the ability of the judgment debtor to satisfy the debt and order the judgment debtor to pay in one lump sum or by monthly installment of a reasonable amount until final and full settlement of the judgment debt (section 4(6) DA 1957).
After the consent order is sealed, the money deposited to the Court after deducting the Court’s expenses for executing the order of arrest will be refunded. Furthermore, under section 11 DA 1957, the cost and expenses for summoning and arresting the judgment debtor can be added to the judgment debt and it is recoverable.
What Happens If the Judgment Debtor Fails to Pay According to Court Order?
If the judgment debtor failed to comply with the Court Order, the judgment creditor can apply for a judgment notice to be issued to the judgment debtor. It is a notice issued by the court to the judgment debtor requiring him/her to show cause or explain why he/she should not be imprisoned by way of an order of committal for failing to comply with the order of the Court.
A judgment notice in Form 179 (O. 74 r. 13 of the ROC 2012) can be applied to the Court under O. 74, r. 12 by a praecipe in Form 178 verify by the oath of the applicant. Once the judgment notice is sealed, it needs to be served personally to the judgment debtor not less than four clear days before the hearing date (O. 74 r. 13). An affidavit of service (AOS) needs to be filed once the judgment notice is served.
If the judgment debtor could not show any valid reason why he could not comply with the Court Order, it is a contempt of Court. The Court may issue an order of commitment under O. 74 r.15 and section 4(8) of the DA 1957 to commit the judgment debtor to the civil prison for a term which may extend to six week or until earlier payment of any instalment or other sum due.