1. ) Horizon Global Sdn. Bhd. v Atria Shopping Gallery Sdn. Bhd. (BA-12A-59-12/2023)

HORIZON GLOBAL SDN BHD (No. Syarikat: 202101005574 (1405873-W)]

SHANKARA PILLAI A/L RAMANATHAN (No. K/P: 880131-05-5297)

SANJEEV KUMAR RAMASAMY (No. K/P: 771026-02-5587) …PERAYU-PERAYU DAN ATRIA SHOPPING GALLERY SDN BHD (No. Syarikat: 1052965-M) …RESPONDEN [Dalam Mahkamah Sesyen Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Guaman No. BA-A52-33-03/2023 Antara Atria Shopping Gallery Sdn Bhd (No. Syarikat: 1052965-M) …Plaintif

Horizon Global Sdn Bhd (No. Syarikat: 202101005574 (1405873 -W)]

Shankara Pillai A/L Ramanathan (No. K/P: 880131-05-5297)

Sanjeev Kumar Ramasamy (No. K/P: 771026 -02-5587) …Defendan-Defendan] JUDGMENT Introduction [1] This case concerns the rental of a shop lot at a prominent shopping mall in the Klang valley. The Respondent/Plaintiff’s claim at the Sessions Court was premised on the ground that First Appellant/Defendant had breached the terms of a Tenancy Agreement that was entered between the parties and had failed to deliver vacant possession of the Demised Premises. The Respondent/Plaintiff succeeded in obtaining Summary Judgment against Appellants/Defendants for outstanding monthly rental. Dissatisfied with the decision of the Sessions Court, the Appellants/Defendants appealed to this Court. The Core Issues [2] The primary issue is whether the learned Sessions Court Judge had erred in law and/or in fact in entering summary judgment in favour of the Respondent/Plaintiff. Arising from this principal issue is the question of whether the Appellants/Defendants have raised any triable issue warranting a trial of suit. The Parties and the Background Facts [3] The Respondent/Plaintiff is the landlord of the Demised Premises. [4] The First Appellant/Defendant is the tenant of the Demised Premises. [5] The Second Appellant/Defendant is the director and guarantor of the First Appellant. [6] The Third Appellant/Defendant is the other guarantor of the First Appellant. [7] The Respondent/Plaintiff and the First Appellant had entered into a Tenancy Agreement whereby the Respondent/Plaintiff agreed to grant the First Appellant tenancy of the Demised Premises and the First Appellant agreed to rent the Demised Premises on the terms and conditions contained in the Tenancy Agreement. The key details of the Tenancy Agreement are, among others, as follows: Rental Period : One (1) year Commencement Date : 15 January, 2022 Expiry Date : 14 January, 2023 [8]

Monthly Rental:

Base Rent in the sum of RM5,769.20 per month from 22.2.2022 to 24.12.2022;

Service Charge in the sum of RM2,230.80 per month from 1.3.2022 to 24.12.2022 82,580.64 82,580.64 2. Electrical Charges 1,321.38 3. Surcharge Imbalance Cost Pass-Through imposed by Tenaga Nasional

Surcharge Kumpulan Wang Tenaga Boleh Baharu imposed by Tenaga

Water Charges 471.00

Late Payment Interest for items (1) to

as of June 2023 9,226.26 Total Outstanding Sum 93,823.73 The Decision of the Sessions Court [13] As noted, The Respondent/Plaintiff succeeded in obtaining Summary Judgment against Appellants/Defendants. The Respondent/Plaintiff was also awarded costs of RM3,000. The Parties’ Contentions in this Appeal [14] The grounds advanced by the Appellants/Defendants in their Memorandum of Appeal in support of this appeal are that the learned Sessions Court Judge had erred in law and/or in fact when he allowed the application for SJ: • meskipun Responden gagal mematuhi Aturan 14 Kaedah 1 Kaedah – Kaedah Mahkamah 2012; • tanpa mengambil kira bahawa terdapatnya isu yang boleh dibicarakan bagaimana jumlah “base rent” dan “service charge” diperolehi; • gagal memberikan pertimbangan yang sewajarnya kepada isu yang timbul dari fakta kes mengenai kesamaran jumlah “base rent” atau “percentage rent” dan “service rent” yang dikenakan oleh Responden; • gagal memberikan pertimbangan yang sewajarnya mengenai milikan kosong kerana Perayu-perayu telah diberikan representasi untuk memegang milikan kosong sehingga penyewa baru diperolehi dimana tuntutan Responden untuk sewa berganda (double rental) masih dibenarkan; AND • gagal mengambil kira bukti bahawa milikan kosong telah diberikan kepada Responden dan terdapatnya isu untuk dibicarakan mengenai tarikh sebenar terhadap milikan kosong tersebut serta secara langsung memberikan kesan terhadap tuntutan sewa berganda (double rental). [15] At the Hearing of this appeal, counsel for the Appellants/Defendants informed this Court that they admit liability. However, what was contested was the issue of quantum, which they argued should and can only be determined after full trial. [16] The Appellants/Defendants further informed this Court that their main bone of contention was with regards to first, the issue of double rental, that is, from 25 December, 2020 until vacant possession after 28 December, 2023. [17] The Appellants/Defendants’ argument is that the demised premises was already in possession of the Respondent and as such the award of double rent should not have been allowed by the lower court. On this the Appellants/Defendants relied on a letter of 2 Aug, 2023 (in Enclosure 5), which incidentally was the sole evidence relied by them, where the Appellants/Defendants averred that the Respondent/Plaintiff had represented to them that the Respondent/Plaintiff will not take vacant possession until they have found a new tenant. This, according to the Appellants/Defendants, is an issue to be tried. [18] The second issue raised at this appeal concerns the calculation of the rental due/monthly rental. The Appellants/Defendants conceded that they had agreed to pay a monthly rental of RM5,769.20 from inception (in 15 Jan 2022) (as evident from the deposit that the First Appellant had paid) and that the rental was for one year, that is, until the termination of the tenancy on 14 January, 2023. However, monthly payment was never paid from inception. [19] In opposing this appeal, the Respondent/Plaintiff argued that: • this was a clear-cut case whereby the First Appellant/Defendant had continued to breach the terms of the Tenancy Agreement and failed to deliver vacant possession of the Demised Premises, rendering the Second and Third Appellants/Defendants liable under the Letter of Guarantee; • the Respondent/Plaintiff has satisfied all the requirement and procedure for a summary judgment; and • there is no triable issue in the instant case and neither are there any other reasons for a trial. The Decision of this Court: [20] This Court is of the view that the terms of the Tenancy Agreement, together with the contemporaneous documents, must be scrutinized. [21] On the issue of double rental, section 28(4)(a) Civil Law Act 1956 provides as follows:

(4)(a) Every tenant holding over after the determination of his tenancy shall be chargeable, at the option of his landlord, with double the amount of his rent until possession is given up by him or with double the value during the period of detention of the land or premises so detained, whether notice to that effect has been given or not. [22] The Federal Court in Rohasassets Sdn Bhd (formerly known as Wisma Perkasa Sdn Bhd) v Weatherford (M) Sdn Bhd & Anor [2019] 8 AMR 729; [2020] 1 CLJ 638; [2020] 1 MLJ 557; [2019] 6 MLRA 594 provided an exceptionally clear and concise explanation of the scheme detailed in section 28(4)(a) of the Civil Law Act 1956. The Federal Court explicated the provision in section 28(4)(a) as follows: [87] On expiry of the tenancy, s 28(4)(a) kicks in to give the landlord the right, at his option, to charge double rent and the double rent continues to be chargeable until possession is given up by the tenant who holds over without the landlord’s consent. The landlord may decide not to charge double rent at all or even allow the tenant to hold over for free after the expiry of the tenancy but that is entirely a matter for the landlord to decide. [88] The legislative scheme of s 28(4)(a) of the Civil Law Act is clearly to give the landlord the right of option to charge double rent if the tenant fails or refuses to deliver vacant possession of the demised premises after the expiry of the tenancy. The right is given by statute and can only be taken away by statute. [89] But that said, it does not mean that holding over simpliciter is all that the landlord needs to prove in a claim for double rent under s 28(4)(a) of the Civil Law Act. To entitle the landlord to charge double rent, there must be failure or refusal by the tenant to give up possession after being told to do so by the landlord. This has to be so because the landlord’s claim is actually not rent but a penal sum which the former tenant has to pay for the inconvenience and loss the tenant causes the landlord in refusing to give up possession: Panicka. [90] At the risk of repetition, it needs to be emphasised that the court’s duty in a claim under s 28(4)(a) of the Civil Law Act is merely to determine whether the option to charge double rent had been exercised properly and lawfully by the landlord. The court is not concerned with contumacious conduct on the part of the tenant who holds over. Even if the tenant is not guilty of contumacious conduct, the tenant is still liable to pay double rent if the landlord has decided to charge double rent and does not consent to the tenant’s holding over and has asked the former tenant to vacate the premises. [91] Therefore, the question in the present appeal is not whether the respondents were holding over contumaciously or otherwise after the expiry of the tenancies. The question is whether they were holding over with or without the appellant’s consent, express or implied by conduct. We do not think s 28(4)(a) of the Civil Law Act can be construed to mean that double rent is chargeable irrespective of whether consent to hold over has been given by the landlord or otherwise. [23] On the facts of the case in Rohasassets, it was the concurrent findings of fact by both courts below that the respondents’ holding over was with the tacit approval of the appellant. On that basis, the Federal Court saw no reason to interfere with such findings of fact. [24] In this present appeal, the crucial question is whether the First Appellant/Defendant had continued to occupy the demised premises with the approval, tacit or otherwise, of the Respondent/Plaintiff landlord. [25] This Court is of the considered view that the ground raised by the Appellants/Defendants alleging that the Respondent/Plaintiff had made representation to the First Appellant/Defendant that it could remain in the demised premises until the Respondent/Plaintiff finds a new tenant is not supported by evidence. It was at best a bare allegation. [26] Counsel for the Respondent/Plaintiff, Mr Bahari Yeow, drew this Court’s attention to the provision in section 7 of the Specific Relief Act 1950 which (was amended in 1992 and) provides as follows: Recovery of specific immovable property

7.

Subject to subsection (2), a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure.

Where a specific immovable property has been let under a tenancy, and that tenancy is determined or has come to an end, but the occupier continues to remain in occupation of the property or part thereof, the person entitled to the possession of the property shall not enforce his right to recover it against the occupier otherwise than by proceedings in the court.

In subsection (2) “occupier” means any person lawfully in occupation of the property or part thereof at the termination of the tenancy. [27] Of relevance is subsection (2), which according to cases such as Er Eng Hong & Anor v New Kim Eng Dan Tiap-Tiap Pemegang Yang Menduduki Atas Sebahagian Tanah Yang Dikenali Sebagai HS(M) 2162 PTD 4403 Mukim Benut, Daerah Pontian [1999] AMEJ 0081; [2001] 1 CLJ 289; [1999] MLJU 605; [1999] 3 MLRH 767, Dr Harjit Singh v Suhaimi bin Samat & Anor [1995] 2 AMR 1988; [1995] CLJU 62; [1995] MLJU 109; [1995] 5 MLRH 283, Nur-Islam Worldwide Industries Sdn Bhd v Yee Kok Sum [2001] 7 CLJ 494; [2001] 3 MLRH 262, SME Aerospace v Steyr [2005] AMEJ 0160; [2006] 5 CLJ 121; [2006] 3 NKH 462; [2005] 3 MLRH 773 and Shatila Che Saad v M Misnan Alang & Anor [2021] 8 AMR 581; [2021] CLJU 1442; [2021] MLJU 1622; [2021] MLRHU 2053, the remedy of self-help is no longer available to a landlord. [28] On the related issue pertaining to the calculation of the rental and amount owed by the First Appellant/Defendant, this Court finds that the outstanding sum due and payable by the First Appellant/Defendant to the Respondent/Plaintiff are based on the express terms of the Tenancy Agreement and/or based on the Respondent/Plaintiff’s rights under the law which the Respondent/Plaintiff has specifically detailed in the Respondent/Plaintiff’s Statement of Account. [29] In view of the above findings, this appeal is dismissed with costs. [30] The Appellants/Defendants to pay costs of RM5,000 to the Respondent, subject to allocatur. Dated: 23 August, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Paramjit Singh Sandhu for the Appellants (Messrs. Harjit Sandhu, Wan & Associates) Bahari Yeow with Amina Qistina Mohd Idris for the Respondent (Messrs. Rosli Dahlan Saravana Partnership)