Reported Cases

The Firm acted for the defendant. The Court held that there are unexplained questions or uncertainties in the factual assertions of the plaintiff itself. These unexplained questions or uncertainties in addition to the defendant's denials make it unsafe to grant the orders in a summary judgment, and the matter ought to go to trial.

This case laid down the principle that the effect of an annulment of an adjudication of bankruptcy is, as Stirling LJ said In Re Keet, to "wipe out the bankruptcy altogether, and put the bankrupt in the same position as if there had been no adjudication". Therefore, an annulment of adjudication of bankruptcy under s. 105 (1) of the Bankruptcy Act 1967 has retrospective effect, but subject of course to s.105 (2) of the same Act.

This is a claim for goods sold and delivered. Defendant was unable to call a  witness after reasonable time had been taken to find him, the admissibility of the witness affidavit under s. 32(1)(c) Evidence Act were used. The Court held that it was quite satisfied on reading the affidavit that every statement was based on personal knowledge and not on hearsay information at all. Such being the position the second requirement of s. 73A (1) of the said Act had also been met. In respect of the witness’ Statutory Declaration the court held that it was satisfied that based on similar reasons the Statutory Declaration could also be admitted under s. 32(1)(c) as well as under s. 73A (1) of the said Act. In the light of the above circumstances the court allowed the affidavit and Statutory Declaration to be admitted as exhibits thereby converting their status from ID16 and ID15 to D16 and D15 respectively. However, this judgment was overturned by the Court of Appeal, subsequently. Datuk Ganesan acted for the plaintiff.

The petitioner sought the Court’s sanction for a scheme of arrangement and compromise pursuant to s.176 (3) and (4) of the Companies Act 1965. Datuk Ganesan for the interveners opposed the petition on grounds that (i) the petitioner’s Explanatory Statement was misleading, inaccurate and did not contain sufficient information to enable the creditors and shareholders to make an informed decision; (ii) the petitioner failed to ensure that different categories of creditors with different interests and rights were properly constituted when calling for the meeting of Scheme Creditors to consider and vote on the proposed Scheme; and (iii) the Creditors Meeting held was null and void. The court held that the said creditors’ meeting was null and void.

The Court decided that at the time this application is heard there is no proposed scheme of arrangement and compromise as intended under section 176 (10A) (a) and therefore a restraining order is not required to 'formalize' by the Applicant and his Creditors as referred to under section 176 (10A) (b) of the Act. This is because at this time the White Knight (Salwan Corporation) has cancelled the agreement on the grounds that the Applicant failed to meet the 'precedent' condition before 31.3.2005 (resulting in the Applicant filing legal action against the Corporation Shares) This Court (dated 31.1.2005) which rejected the application of witnesses under section 176 , was also quashed by the Court of Appeal on 15.6.2005. Datuk Ganesan acted for the interveners.

The defendant elected not to call any evidence when the evidential burden of proof had shifted to her. The defendant's argument that she had nothing at all to do with the transactions and that she had no knowledge of them seemed absurd since the remisier responsible for conducting the transactions in her account was her husband. The defendant was estopped from denying that the transactions were properly carried out. She had never protested when all the contract notes, contra statement and monthly statement were sent to her address. The defendant was also estopped from denying the authority of the transactions as she failed to notify plaintiff of errors or discrepancies as provided in the contract notes, contra and monthly statements more so when the remisier was her husband. The fact that defendant was allowed to trade above any initial trading limit was no defence to the claim. The increase in the trading limit without any additional security was to the detriment of the plaintiff not the defendant.

By not citing the interveners as a respondents, being the interveners in the court below, and necessarily a party in the proceeding, their status and legal rights would be directly affected by any substantive decision in the appeal. By not having been cited as respondents in this appeal, they would be facing a problem when it comes to the question of its costs against the appellant. On the issue of the breach of the various provisions of the Rules, the appellant had blatantly disregarded the Rules. 

By not naming the applicant as a respondent, in which he is one of the parties in the court below, and supposedly one party in the proceedings, his status and statutory rights will be affected by any substantive decisions in seduction. By not being named as a respondent in this seduction, he will face problems if a question arises against the appellant. Regarding the issue of non-compliance with allotments of the Rules, the non-compliance has resulted in many exhibits not being included in the seduction record. The appellant has deliberately belittled these Principles. The appellant also didn't take any steps to invoke the truth to file additional appeal records. Therefore, the appeal was not legally brought to court. The same behaviour has been used by Sateras in continuing his appeal. Only at the last moment when he was besieged, a careless temptation was made to plead for the truth to restore the appeal records. This kind of behavior should not be justified.

The Firm on behalf of CIMB Bank (2nd Respondent) filed an interpleader action due to adverse claims between the Appellant and First Respondent. The bank guarantee to which the appellant and the first respondent were parties was a distinct legal document from the building contract, which was an agreement between the first and second respondents. The building contract formed no part of the bank guarantee. The bank guarantee by its terms was an unconditional and a pure "on demand" guarantee. All that was required to activate it was a written demand by the first respondent. The failure to present the original bank guarantee at the time of demand was a non-issue. The payment mechanism as contained in the bank guarantee made no reference to any requirement that the original bank guarantee must be produced at the time of demand before payment could be made. In this case, it was not a contractual requirement that must be complied with.

The main issue in this case was that the petition for winding up grounded upon the judgment dated 10.10.2000 which has established a joint liability not only against the Appellant but also against another company. Datuk Ganesan was the counsel for the 2nd, 3rd, 4th, 5th, 6th and 7th Respondents. The Court of Appeal held that Parr v. Snell should not be glossed over resulting in a "technical rule" being applied indiscriminately and Asia Commercial Finance (M) Bhd should not be expanded beyond the facts of the case.

Since there was no restriction as to how service was to be effected, any method of service might be employed. Therefore, it might be served by ordinary mail. Ordinary mail was a common and generally reliable system for delivery of letters to any address. It was reasonable to expect that in the ordinary course of mail the recipient would have received the mail. It was therefore, not enough to assert that the notice was not received to displace the expectation that the defendant would have received the notice by ordinary post in the ordinary course. To do so, there must be some evidence that there had been occurrences where mail addressed to that address had not been received. No such evidence was produced. The court, therefore, accepted that the notices were delivered to the defendant. 

The Federal Court held that the bank guarantee was an unconditional and an "on demand" performance bond / bank guarantee. Payment should therefore be effected notwithstanding any contestation by the appellant or the respondent when a valid demand on the bank guarantee was made. All that was required was a demand simpliciter to trigger the obligation to make payment. In the instant case, both the High Court and the Court of Appeal had applied the principle in Teknik Cekap Sdn Bhd v. Public Bank Bhd where there was no requirement that a beneficiary must assert expressly and clearly that the contractor had failed to perform or had committed a breach of the underlying contract. A demand was sufficient to trigger payment. This court fully agreed with the ruling made by the High Court and the Court of Appeal in Teknik Cekap Sdn Bhd v. Public Bank Bhd (foll). The courts in an "on demand" type bond will not inquire into any breach in the underlying contract. However, the Federal Court recognised that the appellant's grievances were matters that must be adjudicated elsewhere. The contractor's remedy was to sue in damages.

The Court of Appeal agreed with Datuk Ganesan on the issue of credibility and weight of evidence. The Court of Appeal further agreed that if the learned judge had directed himself properly and adequately appreciated the totality of the evidence available before him, he would not have found that the Appellant had not proven his case on the balance of probabilities. The appeal was allowed with costs. The judgment of the High Court was set aside.

The High Court accepted the principles that any documents on its production appear to have some alteration it is the general rule that the party offering it as evidence must explain the alteration. Further, a person who choose to be careless or not bothered to find out the contents therein or relied completely upon others to complete the same, is responsible for his own actions and he is prevented from denying the contents therein do not bind him. It is trite law that in the absence of fraud and misrepresentation the mere allegation that particulars were not filled in when the Guarantee was signed as alleged by the Defendants would not in any way absolve them of their obligations and liabilities under the Guarantee. Any person who signs the document before the particulars are filled in should know that he is signing a letter of guarantee and no other document. The printed words "We... the undersigned hereby jointly and severally agree with and guarantee you..." are explicit enough. Plaintiff was represented by Datuk Ganesan.

The defendant lodged a police report that his company was being cheated and the plaintiff contended that it was not a false report. The Court held that the issues raised by the plaintiffs were issues of evidence to be deliberated and evaluated at the plaintiffs' criminal trial. The court here was only concerned with the propriety of the police action in arresting both the plaintiffs considering the allegations levelled against him. The police act in arresting the plaintiff was well within the law. The police harboured reasonable suspicion that the plaintiff was all involved in the issuance of the dishonoured cheques. The police had acted reasonably in pursuing with its investigations and thereafter arresting the plaintiff. Clearly there was a reasonable suspicion on the part of the police that the plaintiff has committed the offence complained of by the defendant. Hence the plaintiff’s arrest was proper and lawful in the circumstances. Further, the warrant of remand was lawfully passed by the magistrate, a court of competent jurisdiction. There was no complaint from the plaintiff then about the granting of the warrant of remand. The plaintiff neither appealed nor sought a revision of the granting of the warrant by the magistrate. Thus it was not open to the plaintiff now to contend that the warrant of remand was wrongly granted or that it was totally unconstitutional. The plaintiff has not shown that the procedural safeguards and legal requirements were not in place nor observed. Accordingly the plaintiff’s application was dismissed. Datuk Ganesan acted for the defendant.

This case inter alia dealt with documentary credit. The Defendants alleged that the Plaintiff was negligent in unilaterally changing the terms of the Letter of Credit from UCP 500 to URC 522. According to the Defendants, this is not permitted under Article 9 (d) (i) of UCP 500. This violation, according to the Defendants, was the result of the Plaintiff's agent HSBC unilaterally converting the terms of the Letter of Credit from UCP 500 to URC 522, without the consent of the beneficiary. The Court held that based on the terms of the First Contract, this submission is devoid of merit. In any event, there is no evidence before the court of the Defendants having raised a complaint to this effect when the Defendant was notified of the rejection of the beneficiary's documents for non-compliance based on ICC publication Number 522 or as subsequently revised. On the contrary, the Defendants proceeded to negotiate with the Plaintiff for the revision of the terms of the First Contract. These negotiations resulted in the execution of the Second Contract, the intention of the parties being for this contract to supersede the First Contract. Accordingly, even if this court is wrong as regards the alleged breach on the part of the Plaintiff's in unilaterally converting the terms of the Letter of Credit from UCP 500 to USC 522, the Defendants are estopped precluded from relying on this breach. Plaintiff was represented by Datuk Ganesan.

It was not in dispute that the applicant's case originated from the Sessions Court and came before the High Court in its appellate capacity and not under its original jurisdiction. Section 87 of the Courts of Judicature Act 1964 provides that the Federal Court shall have jurisdiction to hear and determine any appeal from the decision of the Court of Appeal in its appellate jurisdiction in respect of any matter decided in the High Court in its original jurisdiction. In a criminal matter which originated from the Sessions Court, as in this case, the Court of Appeal stands as the apex court, and no further appeal shall lie to the Federal Court. The appeal should stop at the Court of Appeal. The Federal Court had ruled that it could not deal with the matter for want of jurisdiction; surely, after declining jurisdiction, this court could not now assume it. The matter had come to an end. It had to stop otherwise there would be no end to a litigation.

At the outset it will be significant to note that none of the Applicants in Enclosures 27, 30 and 39 have appealed against the decision of the Court declaring the election of Tam as the Liquidator on 3/8/10 null and void nor against the decision not to hold another creditors' meeting but instead for the Court to appoint the Joint Liquidators at its discretion. The only appeal is by the supporting creditors namely, Pembinaan Kien Sinar Sdn Bhd, Elite Tan Enterprise Sdn Bhd and Bundusan Sdn Bhd against the appointment of Tam as a Joint Liquidator. In this case, the Court has exercised very considerable caution in the appointment of Tam and Sankar as the Joint Liquidators considering that they were each nominated by interested parties as the Liquidator. Datuk Ganesan acted for the Trustee and Tam (Liquidator).

A Letter of Credit may be described as an instrument issued by an issuing bank at the request of its buyer customer whereby the bank promises to pay the seller beneficiary provided the latter presents the documents called for, exactly as stipulated in the LC and meet all the other terms and conditions set out in the LC. The first principle of an LC is thus it is documentary. The complaint of defects in documents and demand for refund was made by the issuing bank after the documents had been accepted and payment made to the beneficiary of the LC. Assuming there were indeed defects in the documents submitted for the respondent, the release of payment was on account of the issuing bank's own decision to accept the defect, or an error. However, be it acceptance or error, it is internal to the issuing bank and involves neither the respondent nor the appellant. Having accepted the documents and made payment, without reservations, the issuing bank is estopped from demanding the return of the payment made on the grounds of alleged defects. The respondent is not obliged to refund to the issuing bank or the reimbursing bank whose problem would arise if, and only if the buyer refuses to pay the issuing bank, or the issuing bank disputes with its reimbursing bank. The parties in such an action are the issuing bank against a negotiating bank, an advising bank and the applicant for the LC. For an issuing bank to be able to reverse its position after acceptance of the claim and the completion of the process of payment under an LC would defeat the goals of certainty, promptness and finality of payment which letters of credit serve to provide to sellers in the context of an international trading system with minimal cross-border litigation. The appellant in this case had acted as the respondent's bank, and not a mere negotiating bank. The fact the appellant took the respondent's documents to the issuing bank to seek payment for the respondent does not metamorphose it into a "negotiating bank". It was a bank which accepts the documents for examination and, if these are found in order, credits the due amount to the beneficiary. It has no authority to conduct any negotiation. In the circumstances, the appellant erred in acting on its own to refund to the issuing bank and then to debit the respondent's account, without being specifically authorized to do so by the respondent. The appellant cannot make the respondent bear the burden of its own error. Recovery of monies paid under a mistake under s. 73 of the Contracts Act 1950 is a matter that can be raised by the issuing bank against the respondent and appellant. The factual basis to such right has to be established by the issuing bank, which the appellant might choose not to dispute if it bears the cost itself, but is not entitled to do so without prior notice of the respondent if the appellant intends to pass the cost of it to the latter. Where it fails to do so, it runs the risk of an action as in this case. Datuk Ganesan acted for the Respondent/Plaintiff.

The Federal Court held that based on the provision of art. 10(a)(iv) of the UCP 400, upon the presentation of an irrevocable letter of credit to the issuing bank (TBB), it is a mandatory requirement that payment is to be effected upon sight of the said document by the issuing bank. The contract pursuant to the said letter of credit is considered by then to have been fully realised. The issuing bank had no right to seek the return of the monies it had paid to the appellant as payment was upon sight of the documents. The issuing bank was estopped from seeking the return of the monies that it had lawfully remitted to the respondent through the appellant as the negotiating bank. The right of recourse did not arise in the present case because TBB as the issuing bank did honour the letter of credit at the first instance. Further, the issuing bank is estopped from demanding the return of the payment made on the grounds of alleged defects or discrepancies. There must be certainty, promptness and finality of payment which a letter of credit served to provide to the transacting parties. The court would also not lightly interfere with the bank's obligations to make payments under a letter of credit. A letter of indemnity was relied upon by the appellant to support the argument that the transaction was carried out under the UCP 400 which provides for a right of recourse. However, the argument made by the appellant was unnecessary for if there was an indemnity, the appellant's recourse to the respondent was upon the indemnity and not the UCP 400. Further, the indemnity herein was suspect as to its authenticity and applicability to the said letter of credit's transaction. The High Court had accepted the evidence of the respondent and held that the letter of indemnity was suspicious because the date had been blanked over and it was executed for other purposes. That was a finding of fact made by the trial judge and this court as an appellate court should not disturb such a finding. There was no payment by mistake to the respondent because the payment made was in fact due to the respondent under the letter of credit. There was no equitable ground to hold that the money had been paid by mistake. There was also no fraud on the part of the respondent during her receipt of the payment. The appellant had in fact represented to the respondent that the respondent was entitled to the payment. By doing so, the appellant was estopped from seeking a refund. Datuk Ganesan acted for the Respondent.

There was no conclusive proof the defendant was unable to pass a good title. Under s 7(1)(b) of the Hire Purchase Act 1967 the ability to pass a good title must be decided at the time when the plaintiff had paid all sums due under the HP agreement. The instant case was not concerned with a stolen or tampered vehicle. It was a case of an error in the recording of the correct chassis number. No one had tampered with the chassis number. To that extent it could not be said that there had been a total failure of consideration. The plaintiff’s claim for full refund was thus not strictly supported in law. The gist of the plaintiff’s defamation claim was slander by conduct combined with verbal statements made by the alleged agents of the defendant. Although there was no firm authority on the issue whether there could be slander only by conduct, it was incumbent on the plaintiff to have provided full particulars of claim in compliance with O.78 of the Rules of the High Court 1980. Sufficient particulars of the alleged defamation and the publication of the alleged defamatory statements had to be provided. There was, however, very little by way of necessary particulars or by way of actual evidence to prove the allegations made. It appeared on the probabilities that the error in the recording of the chassis number was the result of human error. It was clear that both the plaintiff and the defendant could not be blamed. The plaintiff’s case was unsubstantiated and if allowed would result in her unjust enrichment. The position taken by the RTD that the parties to this action produce the third party’s vehicle was manifestly unreasonable, unjust and onerous. There was no requirement under the Road Transport Act that imposed such an onerous and near-impossible task upon them. As the relevant parties had informed RTD of the inaccuracy, and there was the report from Puspakom to establish that fact, the RTD was duty-bound to correct the error in accordance with law. Datuk Ganesan acted for CIMB Bank.

In this action the Plaintiff is seeking for damages for libel and negligence against the Defendant founded on a Proclamation of Sale published in the Malay Mail newspaper dated 13.9.2002. In its Defence, the Defendant essentially contends (i) they were justified in publishing the Proclamation of sale as the Plaintiff had defaulted the terms of the Home Express Loan Agreement and the Defendant was entitled to institute legal action against the Plaintiff, (ii) they were not negligent as they had taken sufficient measures before commencing legal action against the Plaintiff, (iii) they did not disclose any information to CTOS Sdn Bhd ("CTOS") regarding the Proclamation of Sale and (iv) they did not delay to instruct CTOS to update the information about the Plaintiff in the records of CTOS. Although the high court allowed the plaintiff’s claim but was overturned by the court of appeal. Datuk Ganesan acted for the bank, including on appeal.

Secara keseluruhanya Defendan-Defendan telah gagal membangkitkan apa-apa isu atau perkara perlu dibicarakan rujuk Cempaka Finance Bhd v. Ho Lai Ying (trading as KH Trading) & Anor [2006] 3 CLJ 544; [2006] 2 MLJ 685. Di dalam kes ini Mahkamah mendapati Plaintif telah berjaya membuktikan suatu kes prima facie terhadap Defendan-Defendan. Kes ini merupakan satu kes yang amat jelas untuk penghakiman muktamad diperintah terhadap Defendan-Defendan.

For the purpose of summary judgment application, the preliminary requirements have been complied with i.e. (i) the defendant has entered appearance; (ii) the statement of claim must have been served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of r.2 of O. 14 of the ROC. Upon these considerations being satisfied, the plaintiff will have established a prima facie case and it comes entitled to judgment and the burden shifts to the defendant to satisfy the Court why judgment should not be given against him. The Court find there is damning evidence against the 1st and 3rd Defendants when the 1st Defendant wrote a letter dated 9/11/2012 proposing restructuring of the banking facility and admitted that the instalments could not be met due to "less payment received from the collection". This is clearly an admission of indebtedness. Finally it is unconscionable of the Defendants to now deny the Plaintiff's claim having received and utilized the banking facility.

There was no evidence led, to prove any damages that the plaintiff had suffered arising from the negligence of the defendant issuing the first and second letters, and the statement of account. Understandably, the plaintiff would have experienced anxiety and inconvenience, but that does not amount to a claimable damages. The issue is whether the contents of the first letter were defamatory. Words that tend to lower the plaintiff in the estimation of right-thinking members of society are deemed to be defamatory; the test is whether the words in their natural and ordinary meaning, will impute the plaintiff of any dishonourable conduct or a lack of integrity on his part. There is no presumption that an unsealed or sealed letter will be read by third parties, unless it is reasonable to expect that the letter concerned, will in the ordinary course of events, be opened by third parties. There have been decided cases, where the courts have held that it is expected that letters addressed to offices would be opened by the staff. In any event, it is sufficient for the plaintiff to prove that the first letter had been read by a third party. The extent of the publication is only a factor to be considered in the award of damages, as the wider the publication, the higher the damages. Datuk Ganesan and Subashini acted for the Defendant.

It should be noted that the Court strikes out a claim as an abuse of process if the second claim is in effect an attempt to re-litigate the same or essentially the same issue that was decided in the previous suit. This will include issues which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be unjust to permit a new claim to be started in respect of the matter. The doctrine of res judicata has often been described as an "umbrella doctrine" encompassing three conceptually distinct though interrelated principles, namely, cause of action estoppel, issue estoppel, and "the extended doctrine of res judicata. There is another reason why this instant appeal should succeed. It is trite that a plaintiff who wishes to seek different remedy for a single cause of action must do so in the same proceedings. Subsequent attempts to claim different remedies for the same cause of action may be struck down as an abuse of process. Datuk Ganesan and Subashini acted for the Respondent.

The High Court allowed the Respondent’s application to enter summary judgment against the Appellants. The learned Judge found the Defendants’ defence was without merit and bare denials. On the entirety of the evidence the learned Judge found that the Defendants had failed to raise any triable issue and that the Plaintiff had proven its case against the Defendants on balance of probability. The Respondent (Bank Islam Malaysia Berhad) was represented by Datuk Ganesan and he had been successful in his submissions which resulting the Court of Appeal to dismiss the appeal.

It was implicitly contended by the Defendants that the consideration may be said to be wanting when there exists uncertainty on the sale price under the Dayn Sale Agreement. But the Court held that there was no substance in that argument, if ever that was the argument that the absence of a certainty in the sale price tantamount to want of consideration. Any denial however strenuous or loudly made remains bare if it is not supported by evidence. Denial itself is not evidence. It follows from the court must be vigilant in determining whether the Plaintiff is really entitled to the summary judgment without affording the defendant a right to defend the claim in a full trial. In exercising this jurisdiction the court must also bear in mind that the burden of proving that there is an issue or dispute that ought to be tried or for some other reason there ought to be a trial. The Defendants, despite the noises they made, had not discharged the burden of showing that they respectively has any issue to be tried. Where the assertion, denial or dispute is equivocal or lacking in precision or is inconsistent with the contemporaneous documents the assertion must be rejected. Datuk Ganesan and Subashini acted for the Plaintiff.

This was a case between the Plaintiff and Defendant and the Third Party. The Plaintiff’s claim in this case is premised on the tort of negligence against the Defendant in honouring and making payments on a number of cheques signed by signatories whom the Plaintiff alleges to be unauthorized to do so, without mandate. The main issue was whether the Defendant was negligent in making payments on the cheques issued from the account of the Plaintiff but signed by third party signatories. The High Court concluded that the Defendant went on its own frolic resulting in bringing in the 3rd party action which was unnecessary hence the court dismissed the Defendant’s claim against the 3rd party with cost. Datuk Ganesan acted for SME Bank.

The liquidator was obliged to inform the court of his difficulty and take directions on whether to utilise the payments of advance by the petitioner and enter into a private treaty with the creditor to sell the land on the basis that this may be the only option to satisfy s. 236(1)(b) of the Companies Act 1965 ('the Act') in order to pay the creditor in full. Section 236(1)(b) requires the liquidator, subject to s. 292, to pay any class of creditors in full. The liquidator has to get the required amount of money to secure the land so that it can be realised to settle the creditor, whose interest would rank in priority over the contributories.  The respondent had no other assets. Without accepting the advance and conditions of the petitioner, the liquidator would not be able to secure the land in favour of the respondent. In the circumstances, the liquidator had no alternative other than to seek directions pursuant to s. 237(3) of the Act as a difficulty has arisen in the course of his administration of the winding up of the respondent. In the circumstances, the court directed that in the event extension of time sought on the settlement of the purchase price and premium in accordance with the consent judgment is refused by the State Authority, the liquidator, in his capacity as liquidator of the respondent, is at liberty to take appropriate steps to secure and sell the land. Datuk Ganesan and Subashini acted for the Liquidator.

The Plaintiff's action herein is for recovery of loan made by SMEDB to a TFT-R&D Sdn Bhd ("Borrower") pursuant to a guarantee and indemnity given by the remaining Defendants. The first issue brought up by the Defendants is that it is uncertain whether the Guarantee is a guarantee or indemnity by reason that different consequences may arise as the result therefrom as provided in ss. 77 to 100 of the Contracts Act 1950. This is a question of construction of the Guarantee as to what its true nature is in law. It can be a guarantee, an indemnity or a hybrid of both. As held in Bank Negara Malaysia v. Mohd Ismail Ali Johor & Ors. The court is not prevented from construing and determining the nature of the Guarantee notwithstanding that this may be of some complexity. The Guarantee here by its provisions are more akin to that as found by the Federal Court in Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd. The Federal Court has specifically construed principal debtor more widely as an indicia of an indemnity. This Guarantee is thus a hybrid of a guarantee and indemnity. Further, the Defendants also contended that the sum claimed by the Plaintiff included interest as well as penalty interest. Since the Borrower has been wound up, the outstanding sum as demanded by the Plaintiff is not claimable by virtue of s. 291(2) of the Companies Act 1965 read together with s. 43(6) of the Bankruptcy Act 1967 following United Malayan Banking Corp Bhd v. Lim Meng Hua [1988] 1 LNS 232; [1990] 1 MLJ 5. The Plaintiff concedes that this might have been the outcome if the Guarantee is purely and solely a contract of guarantee because the liability of the guarantor is co-extensive with that of the Borrower. This is however not the case herein because the Guarantee is also an indemnity by reason that the Defendants are plainly liable to the Plaintiff as principal debtors. The Plaintiff may also accordingly recover the interest as well as penalty interest by reason that the liability pursuant to a contract of indemnity is not hinged upon on the enforceability of the principal debt as there is no dependency on the obligation of a third person. The liability of the principal debtor under a contract of indemnity can therefore be similar or even more extensive than that of the liability of the principal borrower. Accordingly the Defendants would be correspondingly liable to the Plaintiff as that of the solvent Borrower would have been: see also Southeast Asia Special Asset Management Berhad v. Rojemah Ahmad & 2 Others [2015] 1 LNS 1179. Datuk Ganesan & Subashini acted for the plaintiff.

The application to remove the private caveat is provided for under s. 327 of the National Land Code, 1965. The Letter of Acceptance did not confer an interest in the said Land to the defendant that is capable of registration. The defendant could have expended the sum as claimed in the said Works, it could have a claim for the work done to date, but that is a separate matter, claimable, if at all, in a different forum. There is nothing in s. 323(1) (a) of the NLC, which allows a contractor of a building contract to lodge a private caveat on the land where the building is erected. It is not, with legal certainty, a "transaction that can ultimately lead to its registration on the register". At best, it would give rise only to a monetary interest, i.e. a right in personam against the plaintiff and does not create any interest in the land. Our partner Subashini acted for the plaintiff.

Section 78(3) of the NLC clearly states that alienation could only take place upon registration of a register document of title. This is the position notwithstanding that its alienation has been approved by the State Authority, 'the land shall remain State land until that time'. In short, approval alone does not equate with alienation and title, equitable or otherwise. There must be registration of title in accordance with the NLC. From the reading of s. 78(3) NLC, its rationale is to ensure that notwithstanding prior approval by the State Authority, the alienation process is only completed when final registration takes place in accordance with s. 78(1) or (2) of the NLC. Thus, the scope of s. 78(3) of the NLC is wide enough to cater for any eventualities that might take place between the time of the approval to the time of registration of the title. The consent judgment was in effect a contract between the parties which was superadded by the command of the court. In this respect, the liquidator of the respondent had the locus standi to enter into the agreement with the petitioner. This, in turn, gave legitimacy to the agreement itself. This was so despite the fact that registration had not taken place as yet. Contributories application was dismissed. Datuk Ganesan and Subashini acted for the Liquidator and Respondent.

Under s. 241(1) of the Companies Act 1965, the liquidator may, and shall if requested by any creditor or contributory summon separate meetings of the creditors and contributories for the purpose of determining whether or not either of them require the appointment of a committee of inspection to act with the liquidator. On the facts, the Appellant did not request for such a meeting to require the appointment of a committee of inspection. Under s. 236(2)(c), the Liquidator may sell the immovable property by private contract and do all things as are necessary for the winding up of the affairs of the company subject to the control of the court. In this case the Liquidator has sought the directions of the court which gave directions that in the event there was no extension of time granted by the State Authority, the Liquidator was at liberty to take appropriate steps to secure and sell the land. Appeal was dismissed. Datuk Ganesan and Subashini acted for the Liquidator and Respondent.

This case concerns an application by the Plaintiff to strike out the Counterclaim of the Defendants. As submitted by the Plaintiff, that this Court had already considered all the issues raised in the Counterclaim when determining the Plaintiff's summary judgment application. This court had found that the Defendants have not succeeded in raising any triable issue.  It is settled law that the broader principle of res judicata is founded on the twin principles that there should be an end to litigation and justice demands that the same party shall not be harassed twice for the same cause. The court was of the view that it should not apply when the judgment of the court relied upon is the subject matter of an appeal. It is only the final judgment that will give rise to the principle of res judicata. Furthermore, in the summary judgment application, the court is considering whether there is an issue to be tried as a matter of defence. In the striking out of the Counterclaim, the Court is considering different issues and that is whether there is a valid cause of action which is not scandalous, vexatious or embarrassing or otherwise an abuse of the process of the Court. However, all things being equal, the Court would, on the same facts, reach the same conclusions as in the summary judgment application, in order to be consistent. The court allowed the plaintiff’s application. Datuk Ganesan and Subashini acted for the plaintiff.

This case concerns an application by the Plaintiff bank for summary judgment against the Defendants. In this case, both the Facility Agreement and the Guarantee contained clauses to the effect that a statement of account signed by an officer of the Plaintiff showing the indebtedness of the 1st Defendant shall be conclusive and binding on the Defendants as to any amount due to the Plaintiff. The Plaintiff has exhibited the signed statement of account showing the indebtedness of the 1st Defendant. Since the Defendants' allegation as to the Plaintiff's right to impose penalty interest or late payment interest and to compound interest is without basis, the Defendants have not succeeded in showing any error in respect of the statement of account. Application was allowed.

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.

This is an appeal from the Sessions Court against the decision of the learned Sessions Court Judge who allowed the Plaintiff's application to enter summary judgment against the Defendants. Having perused the Plaintiff's affidavit in support of its application, this court is of the view that the Plaintiff has fulfilled the preliminary requirements. Contrary to the Defendants allegations, the facts deposed in the plaintiff's affidavit in support has set out adequate facts (including the salient terms of the Asset Sale Agreement and the Guarantee and Indemnity Agreement) and the relevant contemporaneous documents in relation to the Financing Facility which form the basis of the Plaintiff's claim against the 1st Defendant as the customer granted the said facility and against the 1st and 2nd Defendants under the Guarantee and Indemnity Agreement executed by the said Defendants. The Plaintiff has also deposed that the sum claim is due and payable and that it is their belief that the Defendants have no defence to the claim made against the Defendants. Thus the Plaintiff has established a prima facie case in respect of its claim against the Defendants. Thus the burden shifts on the Defendants to prove that there are issue or question in dispute which ought to be tried or there ought for some other reason to be a trial, namely, there are circumstances that ought to be investigated by the court. There is no merit in the Defendants' defence. As such this is a suitable and fit case for judgment to be summarily entered against the Defendants.

This is a civil action filed by the Plaintiff to recover monies due and payable under an Islamic financing facility granted to the 1st Defendant. The Plaintiff's application for summary judgment was allowed by this court. The Plaintiff subsequently filed an application to strike out the Defendants' counterclaim and the said application was also allowed. In the Striking Out Application, the Defendants raised again the same issues relating to its Counterclaim and submit that they have a reasonable cause of action against the Plaintiff. In this respect the court was not able to agree with the Defendants' contentions that the issues relating to their Counterclaim is totally different from the claim made by the Plaintiff and the res judicata is not applicable. The relief sought in the Counterclaim may be different from the relief sought by the Plaintiff but the Counterclaim is premised on the same issues which in turn is premised on the same facts and evidence adduced before this court at the hearing of the Summary Judgment Application. As the same issues had been ventilated and adjudged, res judicata applies and the Defendants cannot reopen and reargue the same issues which had been determined previously to prevent duplicity of proceedings and abuse of the process of the court. Moreover the facts as pleaded in the Defendants' pleadings shows there is no reasonable cause of action against the Plaintiff. A new ground forwarded by the Defendants for objecting the Striking Out Application is the fresh evidence in the form of Forensic Accounting Report. As such, the Defendants cannot be allowed to produce and rely on the said report for purpose of resisting the Striking Out Application. To allow the Defendants to do so would prejudice the Plaintiffs as they would not be in the position to properly challenge the Forensic Accounting Report. Even though the application to adduce the said report as fresh evidence is not before this court, this court cannot afford to ignore the complete silence on the part of the Defendants who failed to explain in their affidavits that the fresh evidence could not have been obtained with reasonable diligence at the hearing of the Summary Judgment Application.