1. ) Janacom Konsortium Sdn Bhd v Le Tour Du Monde Sdn Bhd (WA-12ANCvC-20-02/2025)

JANACOM KONSORTIUM SDN BHD ... APPELLANTS [COMPANY NO: 202001002809]

JANACON TRADING SDN BHD [COMPANY NO: 200801012917]

JANATHANAN A/L GOVINTHA NAIR AND LE TOUR DU MONDE SDN. BHD. ... RESPONDENT [COMPANY NO.: 201201042988] IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA SUIT NO.: WA-B52NCvC-352-08/2024 BETWEEN 22/07/2025 16:15:56 WA-12ANCvC-20-02/2025 Kand. 32 LE TOUR DU MONDE SDN. BHD. … PLAINTIFF [COMPANY NO.: 201201042988]

JANACOM KONSORTIUM SDN BHD … DEFENDANTS [COMPANY NO: 202001002809]

JANACON TRADING SDN BHD [COMPANY NO: 200801012917]

JANATHANAN A/L GOVINTHA NAIR

On 16.6.2025, I heard the application by the Appellants (encl. 6) pursuant to O. 3, r. 5 and/ or O. 92, r. 4 of the Rules of Court 2012 (‘RC 2012’) for an extension of time (‘EoT’) to file the Record of Appeal (‘RoA’).

After having considered the cause papers and submissions by the parties, I had dismissed the application. Further, upon the oral submission by the learned counsel for the Respondent, I had dismissed the appeal in encl. 1.

Dissatisfied, the Appellants have appealed against my decision. These are my full grounds for the decision.

The cause papers for purposes of encl. 6 and the written submissions by the parties which I had considered (as there were written submissions which were filed more than once by the learned counsels who represented the parties) are as follows:

the Appellants’ Notice of Application (‘NoA’) dated 17.4.2025 for EoT to file the Record of Appeal (encl. 6);

the 3rd Appellant’s Affidavit In Support (‘AIS’) affirmed on 8.4.2025 (encl. 7);

the Respondent’s Affidavit In Reply (‘AIR’) affirmed by its Director, Mohd Zaki bin Misron on 6.5.2025 (encl. 10);

the Appellants’ written submissions in reply (encls. 17 and 20); and

the Respondent’s Written Submission and Submissions In Reply (encls. 14 and 15).

I did not consider the Appellants’ Written Submission (encl. 12) because it was filed beyond the timeline as directed by the Court and the Appellant did not apply for any EoT or leave of the Court to file the same.

Henceforth, the parties shall be referred to as they were in the Sessions Court.

The Plaintiff is a company with an address at D7-2-12, Bangunan Perdagangan D7, 801, Jalan Sentul, Sentul East, 51000 Kuala Lumpur.

The 1st Defendant (‘D1’) has a registered address at P19, Level P, Block P, Kelana Square, 17, Jalan SS7/26, Kelana Jaya, Petaling Jaya, Selangor.

The 2nd Defendant’s (‘D2’) registered address is at 3-3-8, Kompleks Kantonmen Prima, 698, Jalan Sultan Azlan Shah, Batu 4½, Jalan Ipoh, 51200 Kuala Lumpur.

The 3rd Defendant (‘D3’) is the Director of D1 and D2.

TT Dotcom Sdn Bhd (‘TTD’) had appointed D2 as the main contractor for a project. The Plaintiff alleged that around October 2023, there was an oral contract between the Plaintiff and D3 for the Plaintiff to carry out drilling works for the installation of optic cables, conduits and ducts and grinding and resurfacing works on the area reserved as a public road by way of Horizontal Direct Drilling (‘HDD’). It was purportedly agreed that D3 will issue a Purchase Order (‘PO’) for the areas where the HDD works will be carried out by the Plaintiff.

However, later, the Plaintiff found that D3 had used D1’s name when issuing the PO and D2’s name was in the permit. Nevertheless, D3 allegedly confirmed that he would manage all payments for works done by the Plaintiff.

The Plaintiff claimed that it had carried out and completed the HDD works in various areas in Kedah, Kuala Lumpur and Melaka whereby it was paid the sum of RM428,750.00 out of the total invoice amount of RM750,618.00. Hence, the suit was filed to claim the outstanding sum of RM326,868.00 with interest and costs

On 27.11.2024, judgment in default (‘JID’) was entered against the Defendants for their failure in filing the Defence.

On 6.12.2024, the Defendants filed the following applications:

encl. 13 – NoA to set aside the JID;

encl. 14 – NoA for EoT to file the Defence and

encl. 15 – NoA for stay of execution of the JID.

All the abovementioned applications were dismissed by the learned Sessions Court Judge (‘SCJ’) on 19.2.2025.

On 25.2.2025, the Defendants filed the following appeals:

the present appeal against the decision by the SCJ in respect of encl. 13; and

the appeal against the decision by the SCJ in relation to encl. 14, which was registered at the Kuala Lumpur High Court (NCvC 1) as WA-12ANCvC-21-02/2025 (‘Appeal 21’).

Under Appeal 21, the Defendants had also filed a NoA for an EoT to file the RoA (encl. 3) and a NoA for stay of execution of the JID (encl. 5). On 27.5.2025, the learned Judicial Commissioner (‘JC’) in NCvC1 decided to dismiss the Defendants’ application in encl. 3 and consequently, the JC held that Appeal 21 “terbatal dengan “sendirinya” and the application in encl. 5 has become academic. A global cost of RM10,000.00 was awarded to the Plaintiff for all the applications.

The Defendants, being aggrieved with the decision by the JC, are pursuing an appeal at the Court of Appeal against the same.

The Plaintiff raised a preliminary issue claiming that the RoA filed is defective for the following reasons:

the RoA filed (encls. 3 to 5) is not in accordance with the amendments stated in the draft Index which was returned by the Plaintiff to the Defendants. The amendments made by the Plaintiff was not incorporated and further amendments were made without notifying the Plaintiff’s solicitor; and

the Defendant had included its DCC, which was purportedly filed on 6.12.2024, in the RoA (pp 25 -87, encl. 3), apart from exhibiting the DCC in exhibit “JANA- 1”, Annexure B (encl. 7) instead of a proposed DCC in view of the fact that the SCJ had struck out Appeal 21. The Plaintiff submitted that the Defendants’ act in exhibiting the DCC is misleading and amounts to a misrepresentation and a contemptuous act of defiance.

The Defendants vehemently denied the Plaintiff’s allegation that further amendments were made to the RoA without informing the Plaintiff’s legal counsel. In any event, the Defendants submitted that if the Court takes the view that there is a need for any amendment for clarity or ease of reference, the Defendants are willing to make the necessary amendments to the RoA.

As regards the DCC, the Defendants contended that it was exhibited solely for the Court’s reference, to show that the Defendants have a meritorious defence and that the case should not be summarily dismissed.

Having considered the averments and submissions by the parties, I was inclined to agree with the Plaintiff that, since the SCJ had dismissed the Defendants’ application for EoT to file the DCC and the JC had dismissed the Defendants’ application for EoT to file the RoA and had struck out Appeal 21, the Defendants should not have exhibited the “Salinan Pembelaan dan Tuntutan Balas Perayu-Perayu” with the filing date of 6.12.2024 and encl. 12 endorsed in the suit in the Sessions Court. The Defendants should have exhibited a proposed DCC. The fact that the Defendants have filed a Notice of Appeal against the decision by the JC is irrelevant as this Court has to decide the instant application based on the facts as they stand on the date of hearing of the application.

Hence, the real issue at hand is not whether the RoA filed is defective because, unless the Court allows the instant application, there is no RoA to speak of, but rather whether the Court can consider exhibit “JANA-1”, Annexure B (encl. 7). For the reason as afore stated, the answer is in the negative and therefore, there is no proposed DCC that can be relied upon by the Defendants to support their contention of having a meritorious defence.

The statutory provisions cited by the Defendants in encl. 6 are O. 3, r. 5 and O. 92, r. 4 of the RC 2012. These provisions read as follows: “Extension of time (O. 3, r. 5)

5.

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules or by any judgment, order or direction, to do any act in any proceedings. P.U. (A) 14

The Court may extend any such period as referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent in writing without an order of the Court being made for that purpose.” “Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”.

The general principle is that the rules of the court must prima facie be obeyed, and in order to justify and EoT, there must be some material on which the court can exercise its discretion in favour of the applicant. The primary consideration in exercising the discretion to extend time is whether the party can clearly demonstrate that there was no intention to ignore or flout the rules of court (see, among others, Hong Kwi Seong v Ganad Media Sdn Bhd (and Another Appeal) [2013] 9 CLJ 277 and the other cases cited in Malaysian Civil Procedure 2024, Volume I, Sweet & Maxwell, pp 40 - 41).

The Defendants submitted that, based on prevailing authorities, the factors that this Court should consider in the instant application include, among others, the length of the delay; the reasons for the delay; the absence of prejudice to the Plaintiff; the merits of the Defendants’ case; and justice to the Defendants.

It was vehemently argued for the Defendants that they have established the following:

the delay is genuine and not made in bad faith;

the delay in filing the RoA will not prejudice the Plaintiff;

the appeal is based on the Defendants’ meritorious DCC;

justice for the Defendants must be upheld; and

the irregularity is curable and does not amount to an illegality. - Whether the delay is genuine and not made in bad faith; the delay in filing the RoA will not prejudice the Plaintiff; and the irregularity is curable and does not amount to an illegality

These three grounds are interconnected and shall be addressed together.

O. 55, r. 5(3) of the RC 2012 provides as follows: “Within one month after the filing of the notice of appeal under this rule, the appellant shall file the record of appeal in the High Court, and the record shall contain copies of—

the application for the decision;

all pleadings filed;

all affidavits filed in support of or in opposition to the application; and

the order or draft order of the decision appealed from: Provided that the record of appeal shall not include the notes of evidence, the grounds of judgment or any memorandum of appeal.”.

The Defendants do not dispute that they failed to file the RoA within one month after the filing of the Notice of Appeal i.e. by 25.3.2025. The reason for the late filing of the RoA on 7.4.2025 was “… terdapat kesilapan pengkeranian dalam merekodkan Tarikh tamat tempoh untuk pemfailan rekod rayuan secara salah Dimana Tarikh tamat tempoh telah direkodkan selama 90 hari dari tarikh notis rayuan dan bukannya 30 hari …” (see paragraph 7 of the AIS; ‘Clerical Error’).

The Defendants contended that clerical errors can occur at any stage and mistakes of assumption can happen to anyone at any time. The Defendants have explained the mistake and believe that the dispute is trivial and a waste of time. The Plaintiff is accused of being desperate to win the case on technicalities and evading the court from knowing the truth and merits.

Apart from that, D3 averred that –

due to the Clerical Error, the Defendants believed there was sufficient time to wait for the Grounds of Judgment (‘GoJ’) and Notes of Evidence (‘NoE’) to be supplied by the Sessions Court so that the RoA could be filed at one go without the need to file a Supplementary RoA. Once the Defendants realised the Clerical Error, they promptly sent a draft Index for the RoA to the Plaintiff for approval;

the Plaintiff had responded to the draft Index without any objections and it protested only later. The Defendants received the Plaintiff’s response to the draft Index for the RoA on 2.4.2025 at 7.04 p.m., which fell on the week of the Hari Raya Aidilfitri celebration and thus, the Defendants could only compile all the documents and to file the RoA on 7.4.2025. Although the Defendants or their solicitors do not celebrate Hari Raya, D1 and D2 are companies where the staffs are subjected to mandatory holidays. The Defendants’ counsel was also in the midst of finalising the submissions for other cases;

the delay was genuine and there was no mala fide intention. The Defendants have at all material times informed this Court of the true reasons without any element of deception or distortion of facts; and

the delay in filing the RoA –

will not prejudice the Plaintiff as it was filed at 9.00 a.m. on 7.4.2025, before the first case management started; and

(ii) is not a nullity and is merely an irregularity that is curable under the following provisions of the RC 2012: “Regard shall be to justice (O. 1A) In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. Non-compliance with Rules (O. 2, r. 1)

1.

Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been non-compliance with the requirement of these Rules, the non-compliance shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.

These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective.

The Court or Judge may, on the ground that there has been such noncompliance as referred to in paragraph (1), and on such terms as to costs or otherwise as it or he thinks just, bearing in mind the overriding objective of these Rules, exercise its or his discretion under these Rules to allow such amendments, if any, to be made and to make such order, if any, dealing with the proceedings generally as it or he thinks fit in order to cure the irregularity.”.

After having considered the parties’ respective affirmations and submissions, I was persuaded by the Plaintiff’s submission that –

(a)

the Defendants solicitors’ covering letter dated 27.3.2025 merely enclosed the draft Index of the RoA for Parts A, B and C and did not state that the delay is sending the same was because they were waiting for the NoE and GoJ. In item 4 of the draft Index for Part A of the RoA, it is stated that “Alasan Penghakiman (Akan difailkan dalam Rekod Rayuan Tambahan)” (see exhibit “MZM-1”);

the Defendants’ solicitors could have proceeded to file the RoA if they did not receive a response from the Plaintiff’s solicitors regarding the draft Index for the RoA within 48 hours;

the Clerical Error was raised for the first time in the AIS. Based on paragraph 7 in the AIS, it is unclear as to whether the Clerical Error was on the part of the deponent or the Defendants’ solicitors or its staff. When questioned during the hearing of the application, Mr. Dinesh Muthal answered that the Clerical Error was by the staff in his office. When further queried as to why no solicitor had checked the entry which was made by the said staff, the learned counsel did not give a direct answer and instead submitted that they had sent the draft Index for the RoA to the Plaintiff’s solicitor who took time to respond and no objection was raised as regards the timeline. If the Clerical Error was by the staff in the Defendants’ solicitors’ office, an affidavit should have been affirmed by the staff who has personal knowledge of the mistake. D3 would not have been involved in the process of recording the date for filing of the RoA;

the Clerical Error excuse was fabricated because the “Notis Pengurusan Kes Secara e-Review” dated 28.2.2025 which was sent by the Senior Assistant Registrar of the Kuala Lumpur High Court to the Plaintiff’s and Defendants’ solicitors clearly indicates that the appeal is to the High Court, and not to the Court of Appeal;

even if the Clerical Error excuse was true, the instant application should have been filed immediately after someone in the law firm of the Defendants’ solicitors realised about the Clerical Error. The filing of the RoA on 7.4.2025 at 9.00 a.m. was done following the letter from the Plaintiff’s solicitors to the Defendants’ solicitors dated on 7.4.2025, which was e-mailed at 8.00 a.m., stating that the Plaintiff’s instruction was to raise an objection to the filing of the RoA out of time (see exhibit “MZM-2”);

the Defendants’ averment that the Plaintiff’s solicitors had sent the amended draft Index for the RoA to the Defendants’ solicitors on 2.4.2025 at 7.04 p.m. is contrary to the e-mail from the Plaintiff’s solicitors to the Defendants’ solicitors which shows the date as 3.4.2025 at 10.44 a.m.;

D3 did not explain the connection between the need for more time to compile the cause papers and the Hari Raya Aidilfitri holiday week in view of the fact that all the cause papers for the filing of the RoA are in the possession of the Defendants’ solicitors;

the Defendants have repeatedly used the excuse of festive holidays as an excuse to overcome any late filings (see the cause papers in exhibit “MZM-3” and the table in paragraph 6 of the Plaintiff’s AIR which shows that the Defendants habitually file cause papers, such as the defence and affidavits, late); and

D3 had affirmed the AIS on 8.4.2025 but it was filed only on 19.4.2025, two days after the NoA was filed. There is no explanation from the Defendants on this matter.

In view of the foregoing reasons, the Defendant’s explanation for the delay in filing the RoA is not genuine and the said delay will prejudice the Plaintiff because the Defendants have filed several applications pursuant to the JID being obtained and has refused to pay any part of the judgment sum to the Plaintiff. In addition, the Defendants have a record of habitual delay and a lackadaisical approach in filing cause papers in court.

For the same reasons, I was not convinced that the failure in filing the RoA is merely an irregularity that is curable under O. 1A and O. 2, r. 1 of the RC 2012. There is simply no valid justification for the said failure. - Whether the appeal is based on the Defendants’ meritorious DCC

As held earlier, since the SCJ had dismissed the Defendants’ application for EoT to file the DCC and the JC had struck out Appeal 21, the Defendants should not have exhibited the “Salinan Pembelaan dan Tuntutan Balas Perayu-Perayu” with the filing date of 6.12.2024 and encl. 12 endorsed in the suit in the Sessions Court. Instead, the Defendants should have exhibited a proposed DCC. Hence, there is no proposed DCC that can be relied upon by the Defendants to support their contention of having a meritorious DCC.

Pertinently, the Defendants had filed two appeals against the decision by the same SCJ in the same suit other than a decision made after trial and had also filed applications under the respective appeals in two separate courts without making an application to consolidate the appeals.

The Defendants submitted that no mistake was made regarding the consolidation issue, and it is the Defendants’ right to decide whether the two appeals should be consolidated or heard separately. Furthermore, the two appeals are said to be distinct and the Defendants have already appealed to the Court of Appeal in respect of the JC’s decision in Appeal 21. Thus, the issues in Appeal 21 remain live issues and should not affect the proceedings and hearing of the appeal in this Court.

During the hearing, Mr. Dinesh Muthal candidly admitted that to smoothen matters, an application for consolidation of the appeals should have been made. However, there was an error on the part of the learned counsel’s partner who had handled the file. As Mr. Dinesh Muthal appeared in court for the hearing, he valiantly took the blame.

In my considered view, by not consolidating the appeals, the JC has struck out Appeal 21 as abovementioned. In other words, the Defendants are not allowed to file the DCC. Therefore, even if I was to allow the instant application for an EoT for the Defendants to file the RoA, and if the Defendants’ appeal is later successful and the JID is set aside, the Defendants have no right to file the DCC following the decision by the JC in Appeal 21.

Based on the aforementioned considerations, the Appellants’ application was dismissed with costs of RM2,000.00, subject to allocatur.

The Respondent’s counsel submitted that, without a RoA, the appeal cannot stand and prayed for the appeal to be dismissed. The Appellants’ counsel retorted that under O. 92, r. 4 of the RC 2012, the Court can still hear the merits of the appeal.

I agreed with the Respondent’s counsel; without the RoA, the cause papers and submissions which were considered by the SCJ would not be before this Court. Accordingly, the appeal in encl. 1 was dismissed with no order as to costs. Dated: 18 July 2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Counsel for the Appellants : Dinesh Muthal Messrs. Dinesh Muthal & Co. Counsel for the Respondent : Thenish Chandra