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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(COMMERCIAL DIVISION)
SUIT NO: 26NCC-118-07/2012
HEMALATHA A/P ARUMUGAM
v.
SPRINGS COURT SDN. BHD. & ANOR
GROUNDS OF JUDGMENT
Background
The Petitioner and the First Respondent entered into a Building
Agreement with the First Respondent dated 11.4.2000 (the
Agreement) for the purpose of the construction of a bungalow on
a vacant lot. According to the terms of the Agreement the First
Respondent was supposed to deliver vacant possession on
10.4.2002 but only did so on 3.7.2008. The Petitioner wish to
exercise her rights and claim damages for the delay in the delivery
of vacant possession under the Agreement.
The First Respondent however had been struck off form the Second
Respondent’s Register. The Petition seek to reinstate the First
Respondent into the Second Respondent’s register to enable the
Petitioner to pursue legal action against the First Respondent.
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The Interveners
The interveners are also purchasers of bungalow lands and have
entered into an agreement to build with the First Respondent. The
Interveners objected to the Petitioner’s application to restore the
name of the First Respondent to register as he has an ongoing suit
against the directors/ shareholders of the First Respondent in the
Kuala Lumpur Sessions Court. It is submission of the learned
Counsel for the Intervener that the Petitioner must satisfy the 3 limbs
in section 308(5) of the Companies Act 1965 (CA). The Australian
case of Re: JJ Weeks Construction Pty Ltd [1982] 7 ACLR was
referred. In that case his Lordship Bollen J said that the Court must
considered the following before allowing the reinstatement of the
name of the company,
a)
Whether the applicant could be a person aggrieved;
b)
Whether the company was at that time of striking off
carrying on business or in operation or otherwise; and
c)
Whether it is just that the name of the company is
restored.
It is submitted by the learned Counsel for the Intervener that the
Petitioner have not satisfy the 3 limbs as required,
1)
The Petitioner is not a aggrieved person.
2)
No evidence that the Company was carrying on business
or in operation when it was struck off the register.
3)
It would be unjust to the Interveners who have an
ongoing Court proceedings against the shareholders.
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The Law
This Petition is made pursuant to section 308 (5) of the Companies
Act 1965 which is to restore the name of the company to the register.
Section 308(5) of the Act provides that “any person feels aggrieved
by the name of the company having been struck off the register” can
make an application at any time within 15 years after the striking off
for an order to have the name of the company restored to the
register,
“ 5) If any person feels aggrieved by the name of the company having
been struck off the register, the Court on an application made by the
person at any time within fifteen years after the name of the company
has been so struck off may, if satisfied that the company was, at the
time of the striking off, carrying on business or in operation or otherwise
that it is just that the name of the company be restored to the register,
order the name of the company to be restored to the register, and upon
an office copy of the order being lodged with the Registrar the company
shall be deemed to have continued in existence as if its name had not
been struck off, and the Court may by the order give such directions
and make such provisions as seem just for placing the company and all
other persons in the same position as nearly as may be as if the name
of the company had not been struck off.”.
The name of the company was struck off the register by the Second
Respondent on 31.I2.2009 based on an application by the Director of
the First Respondent on the basis it was no longer in operation. The
First Respondent was then dissolved vide the publication of Gazette
2: No. 668 on 10.1.2011,
“ (1) Where the Registrar has reasonable cause to believe that a company
is not carrying on business or is not in operation, he may send to the
company by post a letter to that effect and stating that if an answer
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showing cause to the contrary is not received within one month from the
date thereof a notice will be published in the Gazette with a view to
striking the name of the company off the register.
(2) Unless the Registrar receives an answer within one month from the
date of the letter to the effect that the company is carrying on business
or is in operation, he may publish in the Gazette and send to the
company by registered post a notice that at the expiration of three
months from the date of that notice the name of the company mentioned
therein will, unless cause is shown to the contrary, be struck off the
register and the company will be dissolved.”.
Justice Ariff Yusof in Greenlinix Sdn. Bhd. & Anor v. Suruhanjaya
Syarikat Malaysia [2012] 7 CLJ 490 held,
“ The court is therefore vested with the discretion to order the restoration
of the name of the company to the register and in so doing the court
"may by the order give such directions and make such provisions as
seem just for placing the company and all other persons in the same
position as nearly as may be as if the name of the company had not
been struck off.”.
The learned Counsel for the Intervener argued it will be unjust to
have the name of the 1st Respondent restored to the register because
the Intervener has a pending suit in the Kuala Lumpur Sessions Court
against the directors and shareholders. Therefore if the restoration to
the register is allowed it will put the Intervener to unnecessary burden
to pursue against an insolvent company.
However I am of the view that the Petitioner as a purchaser is an
aggrieved person adversely affected by the fact that the First
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Respondent was struck off the Register. The Petitioner had entered
into valid and binding Agreement with the First Respondent. She is
therefore legally entitled to claim against the First Respondent for
liquidated damages for late delivery.
This Court agrees with the learned Counsel for the Petitioner that the
Petition will not in any way have any impact to the ongoing suit in the
Session Courts which the Intervener has against the First
Respondent’s Directors.
I have considered the views expressed by the Second Defendant
that it decided to strike off the Company name from the upon the
application of the Director of the Company 31.I2.2009 on the basis
that the Company was no longer in operation. There is no
documentary evidence that the company was no longer in operation
at that point of time. In the Affidavit affirmed by Hanita Hussain on
17.8.2012 she states as follows,
“ 13. Saya ingin memaklumkan kepada Mahkamah bahawa terdapat
satu Petisyen untuk mendaftarkan semula nama syarikat Springs
Court Sdn Bhd (297603-K) telah dimulakan di Mahkamah Tinggi
Kuala Lumpur melalui Petisyen No.26NCC-99-11/2011 (“Petisyen
Pertama”).
14. Bantahan telah dibuat oleh Responden Kedua dalam Petisyen
Pertama atas alasan salah seorang pengarah syarikat membuat
Perakuan palsu melalui Akuan Pernyataan Permohonan Untuk
Memotong Nama Syarikat Yang Tidak Beroperasi atau Tidak
Menjalankan Perniagaan Dari Daftar bertarikh 3l-12-2009 di
ruangan (h).
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15. Syarikat Springs Court sebenarnya mempunyai tindakan undangundang di Mahkamah Sesyen Kuala Lumpur melalui Saman No.: 952-12475-2004 di mana syarikat Springs Court telah dinamakan
sebagai Defendan di dalam Saman yang difailkan oleh Kwong Wai
Seong dan Pong Ah Lip @ Hong Heng Thye sebagai Plaintif.
16. Dalam Petisyen Pertama terdapat permohonan mencelah oleh
RDS BINA SDN BHD yang dibenarkan oleh Mahkamah atas
alasan berikut:
(i) jika Petisyen dibenarkan, ia akan memprejudiskan guaman
dimulakan oleh RDS BINA SDN BHD terhadap Pempetisyen
Kedua (Ong Chin Hoe) sebagai Defendan Pertama di dalam
guaman no.:22NCC-1509-09/2011 di Mahkamah Tinggi Kuala
Lumpur; dan
(ii) Pempetisyen Kedua akan berjaya mengelak dari tindakan dan
tanggungan liabiliti terhadapnya melalui tindakan guaman
tersebut.
17. Mahkamah juga mengarahkan Responden Kedua untuk mengambil
tindakan di bawah peruntukan seksyen 364 Akta Syarikat 1965
terhadap
pengarah
syarikat
iaitu
Ong
Chia
Hoe
kerana
mengemukakan maklumat palsu. Responden Kedua kini sedang
menunggu
kebenaran
Mahkamah
Sesyen
(Jenayah)
bagi
perlaksanaan waran tangkap terhadap Ong Chin Hoe.”.
I have considered the submissions of the Parties and in exercise of
this court’s discretion based on requirements of section 308(5) CA
the Petitioner’ application to have the name of the First Respondent
restored to the register for the following reason:
(i)
the Petitioner is also a purchaser adversally affected and
is therefore an aggrieved person.
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(ii)
No evidence that the First Respondent was not in
operation. In fact according to the Affidavit of the Second
Respondent
the
Directors
had
submitted
false
information.
(iii)
The restoration of the Company is name would not be
unjust or have any impact on the Intervener’s claim in the
Session Court.
Based on the foregoing reasons Encl. 1 is allowed with cost.
sgd.
( HASNAH BINTI DATO’ MOHAMMED HASHIM )
Judge
High Court of Malaya
Kuala Lumpur.
10th December 2012
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Counsels:
For the Petitioner/Respondent:
Messrs. Zain Megar & Murad
-
Megar Munir
-
Shahir Tahir
For the Respondent/Appellant:
Messrs. K.C. Tang & Co.
-
K.C.Tang
- Shafiee