Plaintiff applied for an order that the proportionate amount of RM16,870,000.00 stand possessed by the 1st Defendant as the trustee pursuant to the Sukuk Ijarah MTN Facility Trust Deed in the Sinking Fund Account on the maturity date as at 6.7.2017 shall be for the sole benefit of the Plaintiff as a Sukuk holder who is entitled to the payment of Face Amount of the Sukuk Ijarah MTN and therefore the Defendant is hereby ordered to release or cause the release of the said sum within seven (7) days from the date of this order, being part payment of the Face Amount of Sukuk Ijarah MTN matured on 6.7.2017, to the Plaintiff. The competing claims amongst the Sukukholders obviously relate to the interpretation of the various contractual documents which are the Issue Documents which governs the issuance of the Sukuk Ijarah MTN. Based on the case SPN Membrane Switch, the various agreements will have to be read as a whole and not in isolation. Thus in interpreting the relevant Issue Documents, the words used must be read in the context of the circumstances which led to the execution of the said documents. Event of Default is defined under the Deed of Definition as any of the events mentioned in clause 10 of the Sukuk Ijarah MTN Facility Agreement or clause 6 of the Trust Deed. It is noted that the events stated in clause 10.1 (a) – (w) and clause 6 (a) to (w) are identical. Under the Sukuk Ijarah MTN Facility Agreement it is the Facility Agent who may, by notice to the Issuer, declare the Sukuk Ijarah MTN Facility be cancelled and all amounts payable by the Issuer under the MTN Facility Agreement become immediately due and payable. The provisions which requires for an Event of Default, should it occurred, to be declared is very clear. There is no ambiguity in clause 10 of the Sukuk Ijarah MTN Facility Agreement and clause 6 of the Trust Deed in respect of the requirement for an Event of Default to be declared. Such declaration is to be effected by the giving of a written notice from the Trustee to the Issuer. As there was no Event of Default declared, the court was of the view that the available but insufficient fund in the Sukuk Ijarah MTN SFA is to be distributed among the Sukukholders whose Maturity Date falls on 6 July 2017. Such a situation is contemplated in light of clause 4.3 of the Trust Deed. In the said clause, it is stated that the amount to be redeemed by the Issuer on the Maturity Date is the Face Amount or any amount stated to be due on the Sukuk Ijarah MTN. The intention of the parties is to be construed from the terms of the Issue Documents which was agreed upon at the time when the Issue Documents were executed and not in the light of what happened years or even days later (National Coal Board v. WmNeill & Son (St Helens) Ltd [1984] 1 All ER 555, at 560]. Even though it may turned out not to be in favour of the Opposing Defendants, the Issue Documents remains valid. Based on the aforesaid reasons the court ordered that the sum RM25,306,872.32 standing to the credit of the Sukuk Ijarah MTN SFA as at 6 July 2017 is to be distributed proportionately, among the Sukukholders holding the Sukuk Ijarah MTN with Maturity Date on 6 July 2017, according to the percentage of their holding. The court allowed the Plaintiff’s originating summons. Datuk Ganesan acted for the plaintiff.
Garnesan & Irmohizam Advocates and Solicitors
