1. Malayan Saiva Sidthanta Sangam v Public Bank Berhad (WA-22NCC-402-10/2017)

MALAYAN SAIVA SIDTHANTA SANGAM (Company No: 590-U)

THE BOARD OF TRUSTEES OF THE ANTHI-EESWARAN TEMPLE …PLAINTIFFS AND 15 PUBLIC BANK BERHAD …DEFENDANT AND THE BOARD OF TRUSTEES OF THE ANTHI-EESWARAN TEMPLE 20 …INTERVENER/ APPLICANT JUDGMENT 25 [1] Enclosure 10 is The Board of Trustees of The Anthi-Eeswaran Temple’s (“Proposed Intervener”) application to intervene in the proceedings herein pursuant to O 15 r 6 of the Rules of Court 2012 (“ROC”) and/or the inherent power of the Court on the grounds that it (the 30 Proposed Intervenor) is the valid Board of Trustees of the Anthi-Eeswaran Temple (“Temple”) and that the 1st Plaintiff has been restrained from interfering with the management affairs of the Temple. 2 Background Facts [2] The Proposed Intervener is a statutory body created by virtue of the Selangor State Enactment No.8 of 1941 (“the Enactment”). 5 [3] The 1st Plaintiff is stated to be a company limited by guarantee and was incorporated to manage and control the Temple. [4] The Plaintiffs claim against the Defendant herein is for a declaration that the current account No: 32529661-34 and No. 3199531236 with the 10 Defendant are not valid in law and be cancelled, for freezing order, for an injunction to prevent the operation of the said accounts or any other account in the name of the said Temple and for damages. Summarily, the Plaintiffs claim that the Defendant had allowed the opening and operation of the account No. 31529661-34 in the name of the Temple although the 15 Temple is not registered by three members of the 1st Plaintiff namely Ramchandran a/l Selvadurai, Visvalingam a/l Selvadurai and Natthondan a/l Arumugam. The Defendant is said to have allowed the opening of those current accounts in the name of the Temple contrary to the Defendant’s own terms and conditions as stated in the Defendant’s account opening 20 form and in breach of the law. [5] On or about July 2012, the Proposed Intervener filed an originating summons No.24NCVC-1991-07/2012 (“1991 OS”) and on 29.10.2013 obtained the following orders: 25 3

A declaration that the Proposed Intervener is the lawful body responsible for the ownership, management and maintenance of the Temple;

A perpetual injunction restraining the 1st Plaintiff, Mahalingam a/l Sinivsagam, Rasamalar a/p 5 Gnanasundram and Krishna Kumar a/l Kumarakulasingam (“Defendants in the OS”) from holding themselves out as the lawful body responsible for the ownership, management and maintenance of the Temple;

A perpetual injunction restraining the Defendants in the OS from managing and/or using the assets, funds and assets of the Temple; and

A perpetual injunction restraining the Defendants in the OS from trespassing on the part of the Temple 15 specifically reserved for the Proposed Intervener as the owners of the said Temple subject to the rights of the Defendants under section 7 (iii) of the State of Selangor Enactment No.8 of 1941. 20 [6] From the above order the Proposed Intervener is vested with the exclusive authority to own, manage and maintain the Temple. [7] Dissatisfied with the above orders given by the learned High Court Judge in the 1991 OS, the 1st Plaintiff appealed. After a full hearing, the 25 appeal was dismissed by the Court of Appeal. 4 [8] Despite the orders given in the 1991 OS, the 1st Plaintiff and the alleged Board of Trustees commenced a suit in the High Court vide Suit No. 22NCVC-378-07/2015 (“378 Suit’) against amongst others the lawful members of the Proposed Intervener. The Defendants therein applied to strike out the suit for want of authority and the learned High Court Judge 5 allowed the application. The learned High Court Judge recognised the following individuals as lawful members of the Board of Trustees: a) Professor Dato’ Dr Visweswaran Navaratnam; b) Dato’ T Selventhiranathan; 10 c) Ramachandran a/l Selvadurai; d) Nadasapillay a/l Kailasapillay; and e) K Satkunabalan [9] There was no appeal filed in respect of the 378 Suit. 15 [10] Following the decision in the 378 Suit and despite being fully aware of the orders given in the 1991 OS, the 1st Plaintiff and the alleged Board of Trustees commenced yet another legal proceeding in the Kuala Lumpur Sessions Court No.B52C-50-05/2016 (“the Sessions Court Suit”) against a 20 contractor appointed by the Proposed Intervener to carry out renovations works over the Temple. The contractor applied to strike out the proceedings for want of prosecution where it was initially dismissed by the Sessions Court. However, the High Court on an appeal from the Sessions Court and after hearing counsel from the Proposed Intervener as amicus 25 curiae allowed the appeal and struck out the Sessions Court Suit. The High Court again confirmed that Professor Dato’ Dr Visweswaran Navaratnam, Dato’ T Selventhiranathan, Ramachandran a/l Selvadurai, Nadasapillay a/l 5 Kailasapillay and K Satkunabalan as lawful members of the Board of Trustees. [11] It is to be noted that the constitution of the Proposed Intervener has changed since the 378 Suit where K Satkunabalan has been replaced by 5 Kanagasundram a/l Rajoo in April 2016. Proposed Intervener’s Contention [12] In summary, the Proposed Intervener submitted that this Suit herein 10 seems to commence in breach of the Enactment and the Order dated 29.10.2013. According to the Proposed Intervener it is necessary for them to intervene in these proceedings as the outcome of these proceedings would have direct impact on their statutory rights. Further, it is argued that the 1st Plaintiff and the alleged Board of Trustees named as the 2nd Plaintiff 15 herein are wrongfully using the name of the Proposed Intervener to commence the present Suit. The Plaintiffs’ Contention 20 [13] It is the Plaintiffs’ submission that the Proposed Intervener has not established a legal interest to intervene. The Plaintiffs argued that the Court of Appeal in respect of the appeal against the decision of the learned High Court Judge in the Sessions Court Suit had dismissed the Proposed Intervener’s application to intervene and only the Plaintiffs are given leave 25 to appeal. As such, the Plaintiffs contend that the Court of Appeal on 18.5.2017 had determined the capacity and interest of the Proposed 6 Intervener and the latter is therefore bound by the doctrine of res judicata. According to the Plaintiffs, the various orders of the High Court earlier did not establish the legal interest of the Proposed Intervener and its members as claimed in their application herein. 5 [14] As far as the Plaintiffs are concerned, the 2nd Plaintiff is the valid Board of Trustees and the Proposed Intervener has no locus standi to intervene in these proceedings. The Plaintiffs highlighted that the Court of Appeal had affirmed a prior decision of the High Court in Civil Suit No: S6- 22-726-1990 (“Suit 726”) wherein the 1st Plaintiff nominates the members of 10 the 2nd Plaintiff and which decision is supported by a Joint Statutory Declaration dated 26.3.1991 and by an affidavit filed in the Federal Court and the Federal Court had consequently dismissed the application for leave by the Defendant therein as he was not nominated by the 1st Plaintiff. 15 [15] In the circumstances, it is the Plaintiffs’ case that the application to intervene by the Proposed Intervener is an abuse of the court’s process and contributes to an unnecessary delay in the proceedings herein. Findings 20 [16] The law on intervener applications is governed by O.15 r 6(2) (b) of the ROC which states: “(2) Subject to this rule, at any stage of the proceedings in 25 any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application – 7

order any of the following persons to be added as a party, namely –

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter 5 may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom any party to the cause or matter there may exist a question or issue arising out or relating to or connected with any relief or remedy 10 claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.” 15 [17] The test in determining an intervener application was laid down in Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52. The test laid down by the Privy Council in that case was later expanded and incorporated into the new O 15 r 6 (b) (ii) as set out in the Supreme Court case of Arab Malaysian Merchant Bank Bhd v Jamaludin bin Dato 20 Mohd Jarjis [1991] 2 MLJ 27. The then Supreme Court stated: “It was held by the Privy Council in the Pegang Mining Co Ltd case [1969] 2 MLJ 52 that one of the principal objects of O 16 r 11 of the former Rules of the Supreme Court 25 1957, is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. It must be noted that the Privy 30 Council in that case added that to achieve that object calls 8 for a flexibility of approach which made it undesirable in that case, in which the facts are unique, to attempt to lay down any proposition which could be applicable to all cases. Our present O 15 r 6 of the Rules of the High Court 1980, which replaced the former O 16 r 11 of the 5 Rules of the Supreme Court 1957, is in pari materia with O 15 r 6 of the UK Rules of the Supreme Court. The scope of the present rule, so far as concerns the joinder of persons not parties, has been significantly extended by the addition of para 2(b)(ii) which is as follows:

At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application —

… 15

order any of the following persons to be added as party namely

(ii) any person between whom and any part to the cause or matter there may exist a question or issue arising out of or relating 20 to or connected with any relief of remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the 25 parties to the cause or matter;” [18] It is settled law and on the authorities as well that a party may be added if his legal interest will be affected by the judgment in the action and not his commercial interests alone. 30 9 [19] In Suit 378, the Plaintiffs herein claimed that the members of the 2nd Plaintiff has been appointed by the 1st Plaintiff and alleged that the following individuals constituted the member of the Board of Trustees that authorised the 1st Plaintiff to bring Suit 378: 5

Rasamalar a/p Gnanasundram

Kulaveerasingam a/p Ayampillai

Tan Sri Dr. Amikaipakan S Kandiah

Krishna Kumar a/l Kumarakulasingam 10 [20] The Defendants in Suit 378 applied to strike out the claim premised on the grounds of judgment of the learned Judge in the 1991 OS and the Enactment. The 1st Plaintiff argued that they were entitled to bring the action because there were properly authorised by the Board of Trustees. 15 [21] The learned Judge in Suit 378 found that the 1st Plaintiff has no authority over the Temple and the individuals named by the 1st Plaintiff in the above were not proper members of the Board of Trustees. The learned Judge found that the valid members of the Board of Trustees as at the date of the decision in Suit 378 are as follows:

Professor Emeritus Dato’ Dr N Viswewaran

Dato’ T. Selvinthiranathan

Nadasapillay a/l Kailasapilla

N. Ramachandran 25

K Satkunabalan. 10 [22] Those members are the same members constituting the Proposed Intervener, saved that K Satkunabalan has been replaced by Kanagasundaram a/l Rajoo in April 2016. It can be seen that in reaching the decision, the learned Judge in Suit 378 rejected the following 5 arguments advanced by the 1st Plaintiff i.e.:

that the members of the Board of Trustees must be nominated by the members of the 1st Plaintiff herein;

that the observations in Suit 1991 did not apply; and 10

section 5 (iv) of the Enactment applied only during the lifetime of the original founder of the Temple. [23] The Plaintiffs further highlighted that the Court of Appeal had affirmed a prior decision of the High Court in Suit 726 wherein the 1st Plaintiff 15 nominates the members of the 2nd Plaintiff and which decision is supported by a Joint Statutory Declaration dated 26.3.1991 and the Federal Court had consequently dismissed the application for leave by the Defendant therein as he was not nominated by the 1st Plaintiff. 20 [24] This Court finds that Suit 726 was initiated by the Board of Trustees of the Athi-Eeswaran Temple then against the Defendant therein i.e. R. Santhirasegaram for inter alia restraining the Defendant from entering the Board’s offices and carrying out responsibilities or tasks of the Board of Trustees. R. Santhirasegaram claimed that he and several other individuals 25 formed the lawful Board of Trustees. Abdul Wahab J (as he then was) had to determine whether the Plaintiff is the rightful Board of Trustees and in 11 doing so took into account the term of appointment and re-appointment of the Plaintiff and the Defendant therein. The learned Judge subsequently allowed the Board of Trustees’ claim. Apparently, R. Santhirasegaram, the Defendant therein appealed against the decision of the learned Judge and the Court of Appeal dismissed his appeal. His leave to appeal to the 5 Federal Court was subsequently dismissed. As such, there is in actual fact no findings made by the Federal Court as to the issue of whether the 1st Plaintiff herein could nominate the members of the Board of Trustees. [25] The learned Judge in Suit 378 on the other hand has specifically held 10 that the role of the 1st Plaintiff in proposing three names to the Board of Trustees, out of which one is to be selected is relevant and only applicable during the lifetime of the Founder, Dr. Arumugam Viswalingam. [26] It can be seen that following the decisions of learned Judges in the 15 1991 OS, Suit 378, the Enactment and the decision of the learned Judge in the appeal of the Sessions Court Suit, the Plaintiffs’ locus standi is questionable. In regards to the appeal filed against the decision of the learned Judge in the appeal of the Sessions Court Suit, this Court is of the considered view that until the appeal is heard by the Court of Appeal, the 20 judgment of the learned Judge stands and the Sessions Court Suit is struck out. [27] Apparently, from the historical background revealed in the above and from the reading of the judgments of the learned Judges in all those earlier 25 suits, it is clear that the valid and lawful Board of Trustees are the members constituting the Proposed Intervener herein. The outcome of the 12 proceedings herein will therefore have a direct impact on the Proposed Intervener’s legal right as they are the lawful member of the Board of Trustee vested with the exclusive authority to manage and control the Temple. 5 Conclusion [28] The Plaintiffs capacity in bringing the present suit is questionable and the Proposed Intervener is the right party to be included in these proceedings. It is pertinent thereafter for the Court to determine whether 10 the Plaintiffs have the right to bring this action against the Defendant herein. This Court is satisfied that the Proposed Intervener has met the test warranting the leave for intervention. As such this Court allowed the Proposed Intervener’s application vide Enclosure 10 with costs in the cause. 15 Dated: 20.2.2018 20 [NOORIN BINTI BADARUDDIN] Judge High Court of Malaya Kuala Lumpur 25 13 Parties: Mr. Rathimalar for the Plantiffs (Tetuan Rathi MG Associates) 5 Mr. Chow Yee Wan for the Defendant (Tetuan Iza Ng Yeoh & Kit) Mr. Chetan Jethwani for the Proposed Intervener/Applicant in Enclosure 10 10 (Tetuan Chetan Jethwani & Co.)