S Selvaraja A/L Sangara Pillai v K Jeyabalan A/L Kanagaratnam (WA-22NCvC-636-09/2021)

1.

SUBRAMANIAM A/L M SANGRAPILLAI …PLAINTIF DAN K JEYABALAN A/L KANAGARATNAM …DEFENDAN JUDGMENT Introduction 1. The Court in this case struck out the Plaintiff’s claim as the Statement of Claim filed by the Plaintiffs did not disclose any determinable cause of action 15/01/2024 15:36:56 WA-22NCvC-636-09/2021 Kand. 22 Brief facts

The Plaintiff’s claim against the Defendant arose as a result of the purchase of property held under a Title GM1002, Lot 248, Mukim Semenyih, Daerah Hulu Langat, Selangor (“ the said property”) via company called Syarikat Langkat Jaya Sdn Bhd.

The Plaintiff alleges that a sum of RM4,000 was given by them to the Defendant’s father-in-law for the purchase of the property. Subsequently the property was transferred to the name of the Defendant.

The property was then sold by the Defendant and the other shareholders for a sum RM6.5 million on 25/2/2012. The Plaintiff alleged that the Defendant refused to give them a share of the proceeds for the sale of the property.

This prompted the Plaintiffs to file a civil suit against the Defendant vide Suit No. WA-22NCVC-227-02/2013. The High Court decided in favor of the Plaintiffs and declared that the Plaintiffs were entitled to a sum RM994,416.20 to be paid by the Defendant as a proceed of sale of the property. The Defendant appealed this decision of the High Court to the Court of Appeal but failed in his appeal.

The Plaintiffs claim that to date the Defendant owes them RM1,381,967.67 inclusive of interest. The Plaintiffs by this suit is basically seeking this Court to enforce the said judgment of the High Court.

After perusing the Statement of Claim filed by the Plaintiffs and considering the facts therein the glaring feature in the Court’s view is that there is actually no cause of action pending for determination. The cause of action had already been determined when the Plaintiffs had obtained Judgment to claim the proceeds of sale of the property according to their share.

The only action left for the Plaintiff to take is to enforce the Judgment. What the Plaintiff is seeking in this case can be obtained while enforcing the Judgment. Enforcement of Judgment 9. The manner a judgment could be enforced is clearly spelt out in the Rules of Court 2012 (“the rules”). Order 45(1) of the Rules stipulates as follows:

Enforcement of judgment or order for payment of money (O. 45 r. 1)

Subject to the provisions of these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced by one or more of the following means:

a writ of seizure and sale;

garnishee proceedings;

in a case in which rule 5 applies, an order of committal.

In addition to rule 1(1) and subject to the provisions of these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into Court, may be enforced in the High Court by one or more of the following means:

a charging order; and

the appointment of a receiver.

In fact, in this case the Court notes from the Plaintiffs’ Statement of Claim the Plaintiffs have already attempted to execute the Judgement by way of garnishee proceedings.

The Plaintiffs can request the Court while executing the judgement to give further directions as stated under Order 45(11A) :

Matters occurring after judgment: Enforcement Conference (O. 45 r. 11A) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of any execution proceedings, of its own motion or upon written request by any party, direct any party to those proceedings to appear before it, in order that the Court may make such order or give such direction as it thinks fit, for the just, expeditious and economical disposal of such proceedings including striking out of any writ of execution. No cause of action 12. Further in this case the Court is guided by the powers of a Court in a civil proceeding as stated under the Courts of Judicature Act

The prerequisite of Section 23(1)(a) of the Act which confers jurisdiction upon the High Court in a civil proceeding is that there must be a cause of action. The provision is worded as follows: 1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where -

the cause of action arose;

Further Order 18 Rule 15(2) states:

A statement of claim shall not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but, subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the endorsement of the writ without amending the endorsement.

From the above provision is clear that the Court has jurisdiction to hear a civil case only if there is an ascertainable cause of action.

In this case there is no cause of action, what the Plaintiffs are asking in this case is for the Court to inquire and to obtain an account of how the Defendant profited from the sum ordered to be paid to the Plaintiffs but not so paid. The Court is further asked to inquire into all the assets owned by the Defendant.

The Plaintiff are in fact using the Court as a forum to arm twisting the Defendant into paying the sum owed. This is clearly an abuse of the process of Court. Conclusion 17. Based on the factors above the Court dismissed and struck out the Plaintiffs claim but with no order as to cost. Dated: 12.1.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Pravin Kumar Tetuan J Ganesan Tajul Anuar & Co. No. 544-2A, Batu Kompleks Batu 3, Jalan Ipoh 51200 Kuala Lumpur