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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
SUIT NO: 24NCC-122-03/2014
IJM CONSTRUCTION SDN. BHD. & 3 OTHERS
v.
SF-MGC SDN. BHD.
GROUNDS OF JUDGMENT
This is my Grounds of Judgment for both Enclosure 1 and Enclosure
3. Both enclosures seek what is in essence the same relief; and
that is a Fortuna injunction restraining the Defendant from presenting
a winding-up petition against the Plaintiffs based on the notice of
demand issued pursuant to section 218 of the Companies Act 1965.
Enclosure 1 is the Plaintiff’s application for the following orders:
“ 1.
A declaration that the Defendant is not a creditor of the Plaintiffs
within the meaning of Section 217 of the Companies Act 1965 as
the debt alleged is substantially and bona fide disputed;
2.
A declaration that the Defendant is not entitled to present a
winding-up petition pursuant to Section 218 of the Companies Act
1965 based on the notice dated 27.2.2014 which was served on
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each of the Plaintiffs by the Defendant and that it will be an abuse
of the process of Court to so present the petition;
3.
A declaration that the Plaintiffs are not to be deemed unable to pay
their debts according to Section 218(2) of the Companies Act 1965
by their non-compliance with the notice pursuant to Section 218 of
the Companies Act 1965 dated 27.2.2014;
4.
A declaration that the Defendant is not entitled to serve on any of
the Plaintiffs any further notices pursuant to Section 218 of the
Companies Act 1965 based on the alleged debt of Emirati Dirham
(AED) 1,564,668.74 or any part thereof as the alleged debt is
substantially and bona fide disputed by the Plaintiffs;
5.
That the Defendant be restrained whether by itself, its servants or
agents or otherwise howsoever from presenting any petition to this
Honourable Court or agents or otherwise howsoever from
presenting any petition to this Court or any Court, for the winding up
of any of the Plaintiffs, based on the alleged debt claimed in the
statutory demand dated 27.2.2014; and
6.
In the event the Defendant has presented a winding up petition
against any of the Plaintiffs, that the Defendant whether by itself, its
servants or agents or otherwise howsoever be restrained from
proceeding further upon any petition that may been so presented
based on the alleged debt claimed in the statutory demand dated
27.2.2014, whether by advertising the same or otherwise; and
7.
That the costs of this Summons be paid by the Defendant to the
Plaintiffs.”.
This application is supported by the affidavit of Wan Chee Leong
affirmed on 26.3.2014.
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Enclosure 3 is an application by the Plaintiffs pursuant to Order 29
Rule 1 of the Rules of Court 2012 and/or Sections 50 and 51 of the
Specific Relief Act 1950 and/or the inherent jurisdiction of the Court
for the following orders:
“ 1.
Pending the disposal of the Originating Summons herein, the
Defendant be restrained whether by itself, its servants or agents or
otherwise from presenting any petition to this Court or any Court,
for the winding up of any of the Plaintiffs, based on the alleged
debt claimed in notice pursuant to Section 218 of the Companies.
2.
In the event the Defendant has presented a winding up petition
against the Plaintiffs, that the Defendant whether by itself, its
servants or agents be restrained from proceeding further upon any
petition that may have been so presented based on the alleged
debt claimed in the statutory demand dated 27.2.2014, whether by
advertising the same or otherwise pending the disposal of the
Originating Summons herein;
3.
That an inter-partes hearing date be fixed within 14 days of the
ex-parte order hereof;
4.
The costs of this application be costs in the cause; and
5.
Any further or other relief which this Court deems fit and just.”.
The application is supported by the affidavit of Wan Chee Leong
affirmed on 26.3.2014.
The Grounds
1.
The debt is alleged to be the balance of retention monies
payable to the Defendant;
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2.
There are serious latent defects to the Sub-Contract works
carried out by the Defendant which the Defendant admitted
and promised to repair but failed to do so. As a result, IJMSunway-Zelan-LFE (ISZL) Consortium will have to undertake
the rectification work and it is estimated that the cost to rectify
the defect will be around AED 500,000.00;
3.
ISZL Consortium is contractually entitled to and is setting-off
AED 500,000.00 from the 1st moiety of the retention sum to
cater for the rectification cost;
4.
Any balance sum payable under the 1st moiety has been duly
paid to the Defendant. Therefore, there is currently no
outstanding amount to be released to the Defendant under the
1st moiety of the retention sum;
5.
The 2nd moiety of the retention sum is not due because the
contractual pre-conditions for its release have not been fulfilled;
6.
The Defendant’s
demand is
misconceived and without
foundation; and
7.
The Defendant is not a creditor of the Plaintiffs within the
meaning of Section 217 of the Companies Act 1965.
The Cause Papers
The relevant cause papers referred to:i.
Plaintiffs’ Originating Summons filed on 27.3.2014 (Encl. 1);
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ii.
The Plaintiffs’ Affidavit in Support affirmed on 26.3.2014
(Encl. 2);
iii.
The Defendant‘s Affidavit in Opposition affirmed by Sanjay
Patiss affirmed on 15.4.2014 (Encl. 10);
iv.
The Plaintiffs’ Affidavit in Reply No.1 affirmed on 8.4.2014
(Encl. 7);
v.
The Defendant’s 2nd Affidavit in Opposition affirmed on
23.4.2014 (Encl. 12); and
vi.
The Defendant’s 3rd Affidavit in Opposition affirmed on 5.9.2014
(Encl. 16).
Background
The Plaintiffs are partners in an unincorporated Joint Venture
Consortium known as IJM-Sunway-Zelan-LFE (ISZL) Consortium.
ISZL Consortium is the Main Contractor employed by Al Tamouh
Investments LLC (‘Tamouh’) for the design, construction and
completion of a project known as “Al Reem Island Development –
Phase 1, Plot 1, Zone C Project” (‘Project’) in Abu Dhabi, United Arab
Emirates. The Defendant was appointed as one of ISZL Consortium’s
Sub-Contractors for technical assistance, supply and installation of
materials and equipment for post tensioning works to Package 1basement and podium, villas and tower block CT4 and CT5 and
package 2- tower block CT1,CT2 and CT3. (‘the Sub-Contract’). Post
tensioning works involves steel cables that are tensioned and
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embedded in the concrete slabs to give strength and durability to
floor slabs to bear the design loads. These type of works are
undertaken by specialist as they affect the structural stability, integrity
and safety of the building.
The demand against the Plaintiffs is in respect of a sum alleged
to be the balance retention money payable to the Defendant
premised on a Statement of Final Account issued by ISZL
Consortium to the Defendant in February 2011.The total amount
of retention sum retained by ISZL is AED 2,370,383.30 which is
10% of the adjusted contract sum less the value of installation
with retention.
The 1st moiety of the Retention Sum of AED 1,185,191.64 was due
to be released after the issuance of the Taking Over Certificates
(Re: Clause 13.8. of the Conditions of the Sub-Contract. After the
issuance of the Taking Over Certificates AED 698,757.67 of the
1st moiety was released to the Defendant.
The Plaintiff’s Arguments
It is argued by the Plaintiffs that an injunction ought to be granted
to restrain the winding up as there is a bona fide disputed debt. It
is therefore an abuse of the Court’s process to seek to wind up the
Plaintiffs for the purpose of enforcing the disputed debt.
The Plaintiffs further submitted that the debt alleged by the Defendant
is bona fide disputed and on substantial grounds. The Plaintiffs have
the right to set-off the cost of the rectification from the 1st moiety
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pursuant to Clause 10 of the Letter of Award,
“ Main Contractor’s Right of Set Off
We shall notwithstanding any provision to the contrary included in this
Sub-Contract we shall be entitled to deduct from and set off against all
amount due to you under this Sub-Contract:a)
Any amount or amounts, which you are liable to pay us under the
Sub-Contract;
b)
Any sums due and payable by you to satisfy any obligations of
yours to us pursuant to any agreement to which we and you are
parties other than this Sub-Contract; and/or
c)
Any other sums claimed by us whether for breach or howsoever
otherwise arising.”.
Clause 13.6.4 of the conditions of the Sub-Contract also provides as
follows,
“ Main Contractor’s Right to Deduct
Nothing in this Clause 13.6 shall modify or abrogate the Main
Contractor’s right to deduct from or set-off against any money due to
the Sub-Contractor under the Sub-Contract or any other contract
between the Main Contractor and Sub-Contractor (including retention
money) any sum or sums which the Sub-Contractor is or may be liable to
pay to the Main Contractor in respect of any claim or counterclaim
against the Sub-Contractor whether or not arising out of default, breach
or non-performance of this Sub-Contract.”.
It is further argued by the Plaintiffs that the 2nd moiety of the retention
sum is not due to be released to the Defendant because of the non
fulfillment of the conditions required for the release. Furthermore,
under the terms of the Sub-Contract, if there is a dispute it must
be referred to arbitration and under the aforesaid Sub-Contract the
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seat of arbitration is in Abu Dhabi and the law governing the entire
contract and arbitration is the law of UAE and Abu Dhabi.
The balance of convenience is in favour of the Plaintiffs as the they
are subsidiaries of companies listed in Bursa Malaysia. Irreparable
harm will be caused if the Defendant present the winding up petition.
The Defendant’s Arguments
It is submitted by the Defendant that they have completed the works
and the Final Account was signed off by the Plaintiffs. The 12 months
defect liability period is over but the Plaintiffs refused to pay the
Retention Sum. The Notice of defects was issued on 19.3.2014 after
the expiry of the defects liability period which expired on 30.4.2013.
However, the Defendant had out of goodwill confirmed that they
would make good of the defects. The Plaintiffs are not entitled to
make good the defects that was discovered after the 12 months
defect liability period has expired.
It is further argued that there is no prerequisite for a Sub-Contract
performance certificate to be issued before payment can be made.
The Final Statement of Accounts was issued by the Plaintiffs on
26.2.2011 more than 3 years ago. The Retention Sum belongs to the
Defendant and is held in trust by the Main Contractor.
Decision
It is submitted by the Learned Counsel for the Plaintiffs that after
the works were completed, ISZL consortium discovered serious
latent defects caused by the Defendant’s works. The steel cables
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embedded in the concrete were not properly pressure grouted with
infilling, resulting in voids within the sheath. Due to the voids water
and air ingress causing the steel cables to rust and corrode. The
Plaintiffs discovered rust and watermarks appearing in the slabs
supporting the swimming pools in each of the towers and in other
areas as well. If the defects are not rectified it could result in the
snapping of the tendons and affecting the strength of the slabs.
It is contended by the Plaintiffs that the defects were made known
to the Defendant. The Defendant had admitted responsibility and
undertook to rectify the defects by October 2013. However, the
Defendant failed to carry out the rectification works. On 19.3.2014,
ISZL Consortium issued a final notice to instruct the Defendant to
carry out the rectification of the defects by 1.4.2014.
Due to the failure of the Defendants to carry out the rectification
works, the Plaintiff will have to rectify the defects and carry out
detailed inspection of all the other parts of the Sub-Contract works to
ascertain the full extent of the defects. The estimated cost for the
rectification works is in the sum of AED 500,000. Therefore, it is
submitted that there is no outstanding amount due to the Defendant
under the 1st moiety of the Retention Sum.
With regards to the 2nd moiety, the release is subject to the fulfillment
of the contractual conditions as follows:i.
The Defendant must forward to the Plaintiff a statutory
declaration to stating that all the salaries and benefits due to
the employees have been duly paid;
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ii.
The Plaintiff will release the 2nd moiety within 7 days after
receiving the corresponding release from Tamouh under the
main Contract;
iii.
The sub contract performance certificate have been issued; and
iv.
The release will not be earlier than 12 months after the Taking
Over Certificates.
It is contended by the Plaintiffs that ISZL has not received the
2nd moiety from Tamouh and therefore pay-when paid requirement
pursuant to Clause 13.6.2 (a) of the Sub Contract has not been
fulfilled. The Contractual provisions clearly sets out the mechanism
for the release of the retention. Clause 12 of the Letter of Award
states as follows,
“ (a) the First Moiety of the retention sum shall be released upon the
issuance of the Taking Over Certificates of the works from the
Employer’s Representative.
(b) the Second Moiety of the retention sum shall be released 12 months
after the Taking Over Certificate.”.
The contract between the parties provide for procedures between
the parties. Pursuant to Clause 20.5, any dispute shall be referred
to arbitration in accordance with the provisions set forth in the Rules
of Commercial Conciliation and Arbitration of the Abu Dhabi Chamber
of Commerce Abu Dhabi Chamber of Commerce. The law of the SubContract is the laws of United Arab Emirates and of the Abu Dhabi
(Clause 20.6.1),
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“Arbitration
20.5 Any
dispute
or
difference
connected
with
the
formation,
performance, interpretation, nullification, termination or invalidation
of this Sub-Contract or arising there from or related thereto in any
manner whatsoever, or in respect of which:
a)
the decision, if any, of the Main Contractors’ Representative
has not become final and binding pursuant to Sub-Clause
20.3, and
b)
no amicable settlement has been reached pursuant to SubClause 20.4 for any reason whatsoever,
shall be referred to arbitration in accordance with the provisions set
forth in the Rules of Commercial Conciliation and Arbitration of the
Abu Dhabi Chamber of Commerce by a single arbitrator appointed
in accordance with such rules. The venue for arbitration shall be
Abu Dhabi. The language of the arbitration shall be the English
language.
Neither party shall be limited in the proceedings before the
arbitrators to the evidence, nor arguments put before the Main
Contractor’s Representative for the purpose of obtaining his said
decision pursuant to Sub-Clause 20.3. No such decision shall
disqualify the Main Contractor’s Representative from being called
as witness and giving evidence before the arbitrators on any matter
whatsoever relevant to the dispute.
Arbitration may be commenced prior to or after completion of the
Sub-Contract Works, provided that the obligations of the Main
Contractor, the Main Contractor’s Representative and the SubContractor shall not be altered by reason of the arbitration being
conducted during the progress of the Sub-Contract Works.
If any dispute arising in connection with the Main Contract or any
other contract is made the subject of proceedings in any court or
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arbitration between the Employer and the Main Contractor or
between the Main Contractor and any other party as the case may
be, and the Main Contractor is of the opinion that such dispute
touches or concerns the Sub-Contract Works, the Main Contractor
may by notice in writing to the Sub-Contractor require the SubContractor to be joined as a party to the said court proceedings or
arbitration between the Employer and the Main Contractor or
between the Main Contractor and the said other party.
In this
event, the Sub-Contractor agrees to be so joined and that such
dispute between the Main Contractor and the Sub-Contractor
concerning the Sub-Contract Works shall be referred to and
resolved by the arbitration pursuant to the provisions of the Main
Contractor or the said other contract made between the Main
Contractor and the said other party, or by the court. The Main
Contractor and Sub-Contractor agree to be bound by any decision
of the said court or arbitration.
Should the Main Contractor
exercise the right under this Sub-Clause, neither party shall refer
the same dispute between the Main Contractor and the SubContractor concerning the Sub-Contract Works to a separate
arbitration under this Sub-Clause 20.5.”.
“Law and Procedure
20.6.1 The law governing the procedure and administration of any
arbitration instituted pursuant to Sub-Clause 20.5 shall be the
law of the United Arab Emirates and of Abu Dhabi. The language
of the arbitration shall be English and the place of arbitration shall
Abu Dhabi.”.
“Law and Language
1.4
The Law of the Sub-Contract is the laws of the UAE and Abu
Dhabi.
The language for day to day communications shall be English.”.
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An injunction intended to restrain a winding up petition is known as
a “Fortuna injunction”. In Fortuna Holdings Pty Ltd v. The Deputy
Commissioner of Taxation [1978] VR 83. McGarvie J discussed
the basis on which a Court acts to restrain the presentation of a
winding-up petition and the two branches of the principle that guide
the Courts in the granting of such an injunction. He said,
“ When a court restrains the presentation of a winding up petition to that
court it exercises part of its inherent jurisdiction to prevent abuse of its
process. Mann v. Goldstein [1968] 1 WLR 1091, at pp. 1093-4; [1968] 2
All ER 769. Usually a court acts against abuse of its process after
proceedings have been commenced. Thus, existing proceedings may be
stayed or dismissed, or documents delivered as a step in the proceedings
may be struck out. This is done to relieve a party to the proceedings from
an oppressive and damaging situation in which he has been placed
through abuse of court process. The law has long recognized that with
proceedings to wind up a company, intervention after the commencement
of proceedings would often be too late to relieve the company of
oppression and damage. The courts have recognized that irreparable
damage may be done to a company merely through public knowledge of
the presentation of a petition. Usually the damage flows from the loss of
commercial reputation which results. The courts have also been conscious
of the pressure which may be put on a company, by a person with a
disputed claim against it, threatening to present a winding up petition
unless the company meets his claim. While that threat exists, the
company, in order to avoid the damage involved in the presentation of a
petition, is pressed to meet the claim although it may have substantial and
genuine grounds for regarding itself as not required to do so.
The decisions of the courts have established the principle that the
presentation of a winding up petition may be restrained by injunction
where its presentation would amount to an abuse of the process of the
court. The courts apply this principle similarly to restrain the advertisement
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of a petition already presented. The principle enables companies to be
protected from threatened or apprehended oppression and damage from
abuse of court process.
The basis on which the courts have intervened in the cases cited by
counsel, has been that presentation of a winding up petition might of itself
cause irreparable damage to the company. Given that basis, the
application of the principle which entitles the courts to intervene to prevent
abuse of process, depends on the existence of different elements in two
distinct situations considered in the authorities.”.
He went on to explain the first branch of the principle:
“ The first branch applies in cases where the presentation of the petition
might produce irreparable damage to the company and where the
proposed petition has no chance of success. The decision by Vaughan
Williams, J, to restrain the advertisement of a petition in Re a Company
[1894] 1 Ch 349 is an example of a case within this branch of the principle.
There, the petitioner had not held shares in the company for long enough
to be entitled to petition for winding up as a contributory. The petition
therefore had no chance of success. Later decisions have treated the
case as decided on that ground. Tench v. Tench Bros. Ltd. [1930] NZLR
403; Bryanston Finance Ltd. v. De Vries (No. 2) [1976] 2 WLR 41 at p. 51;
[1976] 1 All ER 25. Cases where the first branch of the principle has been
applied have been cases where the petition was incapable of success as
a matter of law, or as a matter of fact through lack of supporting evidence.
The petition in Re a Company [1894] 1 Ch 349 was, as a matter of law,
incapable of success. In Charles Forte Investments Ltd. v. Amanda [1964]
1 Ch 240; [1963] 2 All ER 940, which is discussed below, the first branch
of the principle was held to apply, because the petition was incapable of
success as a matter of law (Danckwerts, LJ) or through lack of supporting
evidence (Willmer, LJ).Bryanston Finance Ltd. v. De Vries (No. 2), supra,
which also is discussed below, was a case where the first branch did not
apply because the petition was capable of succeeding .”.
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The second principle established in the Fortuna case is that an
injunction of that nature may be granted in cases where a petitioner
proposing to present a petition has chosen to assert a disputed
claim, by a procedure which might produce irreparable damage to
the company, rather than by a suitable alternative procedure. This
principle will apply if the debt is disputed. It does not apply to
cases where the debt in question is undisputed. As long as the
debt cannot be disputed, it is not a consequence whether or not it
will cause irreparable damage to the company, if presented. A
valid and enforceable judgment of court, unless it is set aside or
stayed, cannot be considered a disputed debt. The law is settled on
this point.
In considering an application to restrain a party from presenting a
winding up petition, I am guided by the principles as enunciated by
Justice Gopal Sri Ram JCA (as he then was) in Keet Gerald v.
Mohd Noor [1995] 1 MLJ 193,
“ To summarize, a judge hearing an application for an interlocutory
injunction should undertake an inquiry along the following lines:

(1) he must ask himself whether the totality of the facts presented
before him discloses a bona fide serious issue to be tried. He must,
when considering this question, bear in mind that the pleadings and
evidence are incomplete at that stage. Above all, he must refrain
from making any determination on the merits of the claim or any
defence to it. It is sufficient if he identifies with precision the issues
raised on the joinder and decides whether these are serious enough
to merit a trial. If he finds, upon a consideration of all the relevant
material before him, including submissions of counsel, that no
serious question is disclosed, that is an end of the matter and the
relief is refused. On the other hand if he does find that there are
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serious questions to be tried, he should move on to the next step of
his inquiry;

(2) having found that an issue has been disclosed that requires
further investigation, he must consider where the justice of the case
lies. In making his assessment, he must take into account all
relevant matters, including the practical realities of the case before
him. He must weigh the harm that the injunction would produce by its
grant against the harm that would result from its refusal. He is
entitled to take into account, inter alia, the relative financial standing
of the litigants before him. If after weighing all matters, he comes to
the conclusion that the plaintiff would suffer greater injustice if relief
is withheld, then he would be entitled to grant the injunction
especially if he is satisfied that the plaintiff is in a financial position to
meet his undertaking in damages. Similarly, if he concludes that the
defendant would suffer the greater injustice by the grant of an
injunction, he would be entitled to refuse relief. Of course, cases may
arise where the injustice to the plaintiff is so manifest that the
judge would be entitled to dispense with the usual undertaking as
to damages (see Cheng Hang Guan & Ors v. Perumahan Farlim
(Penang) Sdn Bhd & Ors [1988] 3 MLJ 90). Apart from such cases,
the judge is entitled to take into account the plaintiff's ability to meet
his undertaking in damages should the suit fail, and, in appropriate
cases, may require the plaintiff to secure his undertaking, for
example, by providing a bank guarantee; and

(3) the judge must have in the forefront of his mind that the remedy
that he is asked to administer is discretionary, intended to produce a
just result for the period between the date of the application and the
trial proper and intended to maintain the status quo, an expression
explained by Lord Diplock in Garden Cottage Foods Ltd v. Milk
Marketing Board [1984] AC 130; [1983] 2 All ER 770; [1983] 3 WLR
143 and applied in Cheng Hang Guan. It is a judicial discretion
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capable of correction on appeal. Accordingly, the judge would be
entitled to take into account all discretionary considerations, such as
delay in the making of the application or any adequate alternative
remedy that would satisfy the plaintiff’s equity, such as an award
of monetary compensation in the event that he succeeds in
establishing his claim at the trial. Any question going to the public
interest may, and in appropriate cases should, be taken into account.
A judge should briefly set out in his judgement the several factors
that weighed in his mind when arriving at his conclusion.”.
Kang Hwee Gee J (as he then was) in Safeguards Corp. Sdn.
Bhd. v. Rampai Tour Centre [2009] 1 MLJ 129 in his ground of
judgement said that if the winding-up Petition is presented it would
have no chance of success since the debt is disputed on substantial
grounds. The Defendant in the instant case is seeking payment of
the retention sums under the 1st and 2nd moiety. Based on the facts
there are bona fide issues to be tried in particular with regards to
whether the Plaintiffs are entitled to set off the amounts as against
the amount demanded pursuant to the terms and conditions of
the contract. There is also the issue of the latent defects as alleged
by the Plaintiffs and the rectification of the defects which need to
be resolved. All these issues must be referred to the arbitrator
for determination in accordance to the terms of the contract between
the parties.
On the evidence before me in both the Enclosures it is clear that the
debt is disputed.
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Where the justice of the case lies
A presentation of a Winding-up Petition may be restrained by
injunction where its presentation would amount to an abuse of the
Court’s process. The facts of this case falls within the second
principle in “Fortuna” i.e. there is clearly a disputed claim where the
Defendant is using a procedure which will invariably produce
irreparable damage to the company rather than by a suitable
alternative procedure. The Defendant is seeking the payment of the
retention monies. However, based on the facts as stated in the
Affidavits there is a dispute between the parties on the issue of the
Retention Sum. The disputes must be resolved first between the
Parties and as agreed under the said Sub-Contract, the disputes
must be referred to Arbitration.
This is a proper case for the Court to exercise its jurisdiction to grant
a “Fortuna” injunction, on principles which have been accepted by
the Court of Appeal in Mobikom v. Imiss Communication [2007]
3 CLJ 295 (approving and adopting the principles in Fortuna
Holdings Pty Ltd. v. The Deputy Commissioner of Taxation [1978]
VR 83).
The Court must also assess whether an award of damages would
compensate the Plaintiff if interim relief is granted and the Plaintiff
succeeds at trial. However, where damages would compensate
adequately, then the overall justice of the case must be considered.
From the affidavits filed, the Plaintiffs are subsidiaries of companies
listed in Bursa Malaysia and therefore are in a financial position to
meet its undertaking in damages.
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Since there is an arbitration clause which encompasses all the
disputes relating to the Sub-Contract including the construction of the
same, it appears to this Court that the issues that I have set out
above ought to be dealt with by an arbitrator. It is not for this Court to
embark upon a consideration of the merits of each party’s case in any
degree of detail as that is a matter for arbitration.
On the evidence before me in both this applications, it is clear the
debt is vigorously disputed. Upon evaluating the totality of the facts
in this case and applying the facts to the law as enunciated above,
I would say that the threatened Winding-up proceedings based on
section 218 demand issued by the Defendant against the Plaintiffs
amount to an abuse of the process of Court aimed at pressuring
the Plaintiffs into making the payment. I find that the Plaintiffs
have succeeded in satisfying this Court that the intended Windingup Petition if proceeded with by the Defendant, would prima facie
constitute an abuse of process.
Based on the foregoing reasons Enclosures 1 and 3 is allowed
with cost.
sgd.
( HASNAH BINTI DATO’ MOHAMMED HASHIM )
Judge
High Court of Malaya
Kuala Lumpur.
11th September 2014
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Counsels:
For the Plaintiff/Respondent:
Messrs. Belden
-
Shanti
-
See Jooi Hong
For the Defendant/Appellant:
Messrs. Gill & Tang
- P.S. Gill
- Naren Anand Gill
- Gurmukh Singh