1. Moithu Kutti Bin Mohammad v Licvem Malaysia Shipping & (28NCC-252-07/2014)

1.

2.

M. LOGESWARAN A/L MARIMUTOO …PETITIONERS AND LICVEM MALAYSIA SHIPPING & LOGISTICS SDN BHD …RESPONDENT GROUNDS OF JUDGMENT (Enclosure 12) 2 [1] Enclosure 12 is an application for an extension of time for a period of one month from the date of the order filed by the solicitors representing the Respondent (Licvem Malaysia Shipping & Logistics Sdn Bhd) to allow the Respondent's Director, Faheem Ahmad Khan (Faheem) who is also the Respondent's majority shareholder, to file an Affidavit in Reply to oppose the Petition (Enclosure 1) which was filed by the Petitioners to wind up the Respondent. [2] The brief facts of the case are:-

The Petitioners, (i) Moithu Kutti Bin Mohammad (1st Petitioner), (ii) Jasen A/L Jeyaratnam (2nd Petitioner), (iii) M Logeswaran A/L Marimuthu (3rd Petitioner) are Malaysian citizens. The Petitioners will also be periodically referred to as the Three Petitioners.

The Three Petitioners are the directors and shareholders of the Respondent.

The 2nd and 3rd Petitioners respectively, prior to the formation of the Respondent, were respectively the Shipping Manager and Senior 3 Operations Executive in a company called Sea Hawk Global Lines Sdn Bhd (Sea Hawk) which runs the business of logistics, storage, sea freight consolidation & de-consolidation, air freight consolidation & de-consolidation, chartering, break bulk, project cargo and stevedoring.

In the course of conducting their work, both the 2nd and 3rd Petitioners established professional relationship with a Mauritius based company called AEL (Mauritius) Ltd. (AEL), from which a contract between Sea Hawk and AEL was created.

On the other hand, the 1st Petitioner was at all material times a director and a shareholder of Baiduri Dimensi Sdn Bhd (Baiduri Dimensi), wherein Baiduri Dimensi is a company that provides warehousing space and logistics requirements to Sea Hawk.

With the expertise and experience of the 2nd and 3rd Petitioner, they both proposed to the 1st Petitioners to form a company, which culminated in the formation of the Respondent. 4

In August 2012, the Three Petitioners and Faheem, a Danish citizen, conducted several business discussions and business ventures with AEL. Later, on 20.9.2012 Respondent was incorporated.

When the Respondent was formed, it was agreed that 70% of the Respondent's shares will be held by Faheem, while the balance 30% will be equally distributed between the Three Petitioners. [3] On 22.7.2014, the Three Petitioners had presented Enclosure 1 to wind up the Respondent via Sections 218(1)(f) and 218(1)(i) of the Companies Act 1965 on the grounds that there exists a mutual breakdown in trust and confidence, the directors had acted in the affairs of the Respondent contrary to the interest of the Respondent, and it was just and equitable that the Respondent be wound up. [4] Consequently, Faheem on 25.9.2014 filed a Notice of Motion to stay the Petition on the ground that the Three Petitioners had conspired to cheat the Respondent by forming a new company for the purpose of taking over the Respondent's business. On that ground, Faheem and a joint venture company named Licvem Shipping & Trading Aps (Denmark) filed a civil 5 claim No. 22NCVC-405-08/2014 against both the Petitioners and the new company formed by the Three Petitioners, JLM Logistics (M) Sdn Bhd. [5] Returning to Enclosure 12, the application for extension of time was supported by two Affidavits, the Affidavit in Support (Enclosure 13) and an Affidavit in Reply (Enclosure 15) which were deposed and affirmed by one Eric Yap Beng Ong, a solicitor of Messrs Eric Yap & Associates (Messrs Eric Yap). Both of these affidavits will be referred to as 'Eric's Affidavits'. [6] In Eric's Affidavits to support the application for extension of time, it was stated that the delay in filing Faheem's affidavit is that Faheem, is a Danish citizen and currently residing in Denmark. Thus, for the purpose of accepting Faheem's affidavit in this Court, Faheem's affidavit is required to be sealed and attested by a Court, Judge, public notary or a consular officer of a Commonwealth country. Faheem was described to have encountered difficulty in order to obtain the seal and attestation of the consular officer and this had caused Faheem to be unable to file his affidavit in reply in respect of the Petition within the time stipulated by the Court. 6 [7] This application for extension of time was vehemently opposed by the Three Petitioners via the filing of the Petitioners’ Affidavit in reply (Enclosure 14) affirmed by the 2nd Petitioner which was also deposed on behalf of the 1st and 3rd Petitioner. [8] The Petitioners’ solicitor raised a preliminary objection in respect of the affidavit in support affirmed by Eric and/or Messrs Eric Yap. It was submitted by the Petitioners’ solicitors that Messrs Eric Yap does not have the capacity nor the locus to represent the Respondent as no resolution was passed or approved by the Respondent to appoint Messrs Eric Yap, allowing Eric to affirm the affidavits. Further, none of the Petitioners had agreed to the appointment of Messrs Eric Yap. [9] According to the Petitioners' solicitor, the preliminary objection was raised during the case management before the Senior Assistant Registrar and had informed that they will submit on the matter before the High Court Judge. [10] In respect of the preliminary objection, this Court has went through the written submission filed by Messrs Eric Yap but unfortunately the objection raised by the Petitioners' solicitor was not answered by Messrs Eric Yap. 7 [11] However, this Court had also went through the notes of proceedings in respect of the case management before the Senior Assistant Registrar to review the details of what transpired during the case management. During the case management fixed on 24.9.2014, which was held to schedule the hearing of Enclosure 1, the Petitioners' solicitor had indeed raised a preliminary objection against the appointment of Messrs Eric Yap as the Respondent's solicitor. There was no answer as to whether Messrs Eric Yap was appointed by the Respondent or by the majority shareholder, Faheem. During the case management, the solicitor from Messrs Eric Yap had requested for an adjournment in order to file a Notice of Motion to stay the Petition whilst awaiting instructions from their client who was in Denmark. [12] The Senior Assistant Registrar then scheduled 17.10.2014 as the next case management date. On 17.10.2014, the Petitioners' solicitor had again raised the issue of locus in respect of the Respondent's solicitor but have no issues should Messrs Eric Yap appear on behalf of a third party. Messrs Eric Yap however informed the Court that they will utilize the affidavit filed in support of their motion to stay the hearing of Enclosure 1 as the affidavit in reply to oppose the petition. The Senior Assistant Registrar 8 then ordered for the Notice of Intention to Use Affidavit to be filed before 27.10.2014. [13] On 15.12.2014, Messrs Eric Yap informed the Court that the Notice of Motion (Enclosure 6) filed with the purpose of staying the proceedings of Enclosure 1 which was filed on 19.10.2014. However, Messrs Eric Yap was awaiting the affidavit of Faheem, and requested for more time to file Faheem's affidavit. The Senior Assistant Registrar ordered for the Respondent's affidavit to be filed before 29.12.2014. The Petitioner's solicitors again informed that they will continue to pursue their preliminary objection in respect of Respondent's solicitor's locus. The Senior Assistant Registrar fixed the case management of the Petition on 22.1.2015. During case management held on 22.1.2015, the solicitor from Messrs Eric Yap had informed the Court that the Respondent had filed Enclosure 12 on 30.12.2014 and simultaneously requests for an extension of time to allow the Respondent to file a reply against the affidavit which was filed by the Petitioners on 14.1.2015 in opposition of the Respondent's application for extension of time. The Senior Assistant Registrar further fixed the matter for case management on 25.2.2015, and later the hearing of Enclosure 12 was fixed before the High Court Judge on 13.4.2015. 9 [14] The Court will now touch on the preliminary objection raised by the Petitioners' solicitor, which will be considered based on two factors. Firstly, although the Petitioners' solicitor had consistently raised the preliminary objection up until the hearing of Enclosure 12, but upon reading the Petitioners' submission, the Court finds that the point submitted was vague and overly simplified. In the beginning of the proceedings before the Senior Assistant Registrar, the Petitioners' solicitor objected to the appearance of Messrs Eric Yap on the grounds that no resolution was approved to appoint the firm. However, the Petitioners' submission raised another issue altogether by questioning the capacity of Faheem who was alleged to have no locus to represent the Respondent, since Faheem in the civil suit No. 22NCVC-405-08/2014 had commenced this civil suit by way of derivative action. In such a situation, Faheem cannot approbate and reprobate. Referring to the Petitioners' short submission on its preliminary objection which, and the fact the Petitioners' solicitor did not refer to any authority and/or the Respondent's Article of Association to support its submission, the Court concludes that the Petitioners' solicitor was not wholehearted in pursuing its preliminary objection. Secondly, the Petitioners' solicitor had on 17.10.2014 stated that they had no issues should Messrs Eric Yap appear on behalf of a third party. Does this mean 10 that they agree to Messrs Eric Yap's appearance in the course of this proceedings? [15] Based on these grounds the Court is therefore of the view that there is no need to consider the preliminary objection raised, and shall determine Enclosure 12 based on its merits. [16] The Court is aware of the affidavit in reply affirmed by Faheem on 29.1.2015 and filed in Court on 9.2.2015, which serves as the basis of the application under Enclosure 12 as it was filed beyond the time period specified by the Senior Assistant Registrar. [17] Perusing the available notes of proceedings in respect of the case management held before the Senior Assistant Registrar, it is evident that the events in respect of the affidavit filed by Faheem have been going on since September. From the date when the Petition was filed, there has been only one affidavit affirmed by Faheem dated 25.9.2014 in support of the application for stay of proceeding of Enclosure 1. 11 [18] I am in agreement of the Petitioners' solicitor that Faheem should have filed his affidavit in reply on 24.11.2014 and have failed to do so. The Senior Assistant Registrar then during case management held on 12.12.2014 allowed for a final extension of time to file Faheem's affidavit in reply before or on 29.12.2014. [19] It is trite law that the Court's power to extend and/or abridge time is one that is discretionary which must be exercised judicially. (See i. Ratnam v. Cumarasamy & Anor [1964] 3 All ER 933. ii. Ong Guan Teck & Ors v. Hijjas [1982] 1 MLJ 105. iii. Punca Klasik Sdn Bhd v. Seok Kim Leow [1996] 5 MLJ 241. iv. Gan Hay Chong v Siow Kian Yuh & Anor [1975] 1 MLJ 41. v. Cheah Teong Tat v Ho Gee Seng & Ors [1974] 1 MLJ 31.) [20] Alauddin J (as his Lordship then was) in the case of Abdul Rahim Ponniah bin Abdullah-v-Kulim Intensive Driving Centre Sdn. Bhd. [2000] 6 MLJ 584, held inter alia that : “…In exercising the discretion, the following factors will be considered (1) whether the delay caused by the defendant company unjustified or unreasonable

what are the reasons for the delay (3) whether the defence raised by the 12 defendant company had any merits; and (4) will the plaintiff prejudiced in any way should the application be granted.” [21] In this case, the Court has to consider whether the application filed by Messrs Eric Yap is one that is suitable for this Court to exercise its discretionary power by giving due consideration to the explanation provided by Faheem for his delay. In other words, the legal burden to be discharged by Faheem, and to an extent, his solicitors, is to provide explanation, and to adduce satisfactory materials and facts regarding the delay in filing the affidavit in reply. [22] As such, the question to be answered is whether Faheem and his solicitors have successfully provided the Court with a satisfactory explanation in order to convince the Court to exercise its discretionary power to allow extension of time. Detailed observation of the chain of events and the reason raised by the Respondent for the delay must be analysed by the Court. 13 REASON FOR DELAY [23] This Court is fully aware of Order 41 Rule 12 of the Rules of Court (ROC) 2012 which provides as follows:- Affidavit taken outside Malaysia admissible without proof of seal (O. 41, r. 12)

A document purporting to have affixed or impressed thereon or subscribed thereto the seal or signature of a Court, Judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country the seal or signature of a consular officer of a Commonwealth country in testimony of an affidavit being taken before it or him shall be admitted in evidence without proof of the seal or signature being the seal or signature of that Court, Judge, notary public or person. [24] According the Eric's affidavit, Messrs Eric Yap via their letter dated 25.11.2015 (Exhibit - "EYBO 1", Enclosure 13) had sent Faheem's affidavit in reply to obtain the seal and signature of an officer at the consular's office. Since there are no Malaysian embassy and/or consular in Denmark, Faheem was required to obtain the seal and signature from a consular officer of other Commonwealth countries. However it was alleged that Faheem could not speak nor obtain assistance from the consular offices of 14 Singapore, Tanzania, Ghana and Pakistan. Further as it was the end of year in Denmark and most consular offices were closed for the holidays. [25] Further, Eric states that Faheem faced difficulties to obtain the seal and signature as he was required to fix an appointment with the consular offices beforehand. To support this, the Respondent exhibited the e-mail communications between Eric and Faheem (Exhibit "EYBO-2", Enclosure 13) [26] The Court agrees with the Petitioners' solicitor that the reason for delay put forward by Faheem must be put under the microscope together with the actions taken by Faheem in this suit from the moment Enclosure 1 is served onto the Respondent. [27] The solicitor from Messrs Eric Yap had asked for an adjournment to file the affidavit in reply since 17.10.2014. The filing date has since been extended to 15.12.2014. However the solicitor was still waiting for a sealed copy of the affidavit on 15.12.2014, and resulted in the Senior Assistant Registrar to giving a final date on 29.12.2014. The delay should not be calculated from 29.12.2014 as the extension of time had been given from the month of 15 October, and later in November which was later again extended to 29.12.2014. Faheem's affidavit in reply was only filed after a 3 month period on 9.2.2015. [28] This Court is of the opinion that Faheem's reasoning that he was unable to obtain the signature and seal due to consular offices being closed at the end of the year is unreasonable. First of all, although they were given an extension of time on 17.10.2014, the Respondent's solicitors had only forwarded the affidavit in reply to Faheem via their letter dated 25.11.2014. Two things must be observed. One, the solicitor, having knowledge that time is limited; knowing that Faheem was in Denmark; and recognising the required seal and signature of the consular officer had taken the time of one month to send the affidavit in reply to Faheem. Two, the solicitor with knowledge that the affidavit in reply was to be filed before 29.12.2014 had elected to wait up until 25.11.2014 before sending the affidavit to Faheem. [29] Secondly, the Court observes that the month of November is not the end of the year just yet, knowing full well that the public holidays in European countries, including Denmark, is scheduled around Christmas at 25 December until end of the year. The Court cannot accept the reasoning 16 that the consular offices of Commonwealth countries were closed and there was a long holiday throughout December until 27.1.2015 when Faheem finally obtained the seal and sign his affidavit at a Malaysian consular in Stockholm, Sweden. It is unreasonable to think that the consular offices of Commonwealth countries took a 2 months leave throughout the month of December 2014 until the end of January 2015. [30] Apart from this, the alleged efforts undertaken by Faheem to set appointments at the various Commonwealth consular offices are not supported by any documentary such e-mail, letters, endorsement of attendance or other documents from the said consular offices. What was exhibited by Eric was Exhibit "EYBO-2". However the document exhibited are merely e-mails of communication between Eric and Faheem. It does not show that Faheem did indeed made efforts to fix appointment or had indeed went to the consular offices to obtain the seal and signature. The emails in Exhibit "EYBO-2", in the opinion of the Court, does not prove or support the efforts made by Faheem. Additionally, the time of two months taken to obtain the seal and signature of a consulate officer shows Faheem's indefferent and not serious attitude in respect of this matter. 17 [31] In this regard, this Court is in agreement with the Petitioners’ solicitor that Faheem’s conduct is a delaying tactic to prevent the Petition from being heard. Such a nonchalant attitude must not be condoned by this Court. [32] In the case of Gan Boon Kyee v Yap Hong Sin & Anor [1997] 2 MLJ 598, the Court of Appeal in dismissing an appeal against Judicial Commissioner’s decision refusing an application for extension of time, had held that: “The learned judicial commissioner exercised her discretion correctly. She took into account all relevant considerations and directed herself correctly on the law. She asked herself the right question and her decision accorded with the justice of the case. The judicial commissioner was entirely correct in classifying the conduct of the instant appellant as „leisurely paced‟ because of the sluggish pace at which the appellant moved the court. It is axiomatic that the law assists the vigilant and not the indolent. Further, the court was entirely unconvinced with the arguments in support of this appeal. Therefore, the appeal was dismissed (see p 601D-F).” (emphasis added) [33] While, in Pemunya Kapal Mv Brihope & Ors v Emmanuel E Okwuosa & Ors [1997] 1 MLJ 453 at 470, the Court of Appeal in its decision held inter alia: 18 “Order 32 r 13(2) of the RHC was specifically enacted to eradicate the rampant abuse of process by malevolent, indolent or unpaid practitioners who had devised a fall-safe method of causing unwarranted delays by filing affidavits at the last minute. The rule is mandatory. Of course, the court always has a discretionary power to extend time (see the Court of Judicature Act 1964 item 8 of the Schedule and O3 r 5 of the RHC 1980). But very powerful reasons must be advanced and the application for an extension should preferably be filed before time expired…” (emphasis added) [34] Based on the above, the explanation provided by the Respondent in respect of the delay in filing the affidavit are found to be unreasonable to warrant the Court to exercise its discretionary power to allow an extension of time for the Respondent to file Faheem's affidavit. The delay in filing the affidavit in reply is prejudicial to the Petitioners. The Court therefore refuse to allow the application filed under Enclosure 12 with costs of RM2,500.00 to be paid by Faheem to the Three Petitioners. ….………………………………… (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court of Shah Alam (LJC) Selangor Darul Ehsan Dated the 13th day of April, 2015. 19 For the Petitioners - Tetuan Kamil Hashim Raj & Lim Mr. Rishikessingam Rajakulaisingam For the Defendant -