Siva Kumar A/L Jeyapalan v Firwas Sdn. Bhd (WA-22NCvC-677-10/2018)

The case before this Court was a patently and obviously a fraudulent and sham claim by fraudulent personas who by their concerted deceit and outright lies maliciously attempted to force the Defendant-vendor to conform and abide by a fraudulent Draft Sale and Purchase Agreement (which at all times was never signed and in fact had been clearly rejected by the Defendant-vendor). The fraud was concocted by the Plaintiffs themselves together with another fraudulent property agent and a fraudulent interloper within the legal fraternity who was unlawfully holding herself out as a qualified person (and lawyer) despite having proven to have forged her qualifications before the Malaysian Bar Council. The sheer magnitude of falsity emanating from this sham claim was overtly astounding to the grave extent that this Court must remark its disdain and chagrin to the callous and brazen deceit that the Plaintiffs and its cohorts have tried to delude this Court to believe.

The core facts of the sham claim were simple. The Defendant-company was the owner and vendor of a large piece of land. The Defendant-company was desirous to sell the piece of land. The Plaintiffs were the failed prospect who was unable to conclude an agreement with the Defendant to purchase the piece of land. Prior to negotiations, the Plaintiffs have allegedly demonstrated their commitment by paying an earnest deposit to the fraudulent property agent to the amount of RM1.2 million. It remains undisputed that this earnest deposit had never been remitted nor 4 paid to the Defendant-vendor and had always remained in the possession of the fraudulent property agent.

A temporary receipt for the earnest deposit was signed although clearly subject to continued negotiations for terms and final agreement. It was clearly mentioned and discussed that the purchase price for the property was RM60,000,000.00. The temporary receipt stipulated that the purchase price was for RM40,000,000.00 (to be paid in 2 tranches) while a contemporaneous signed Letter of Undertaking by the fraudulent property agent had admitted that the final 3rd tranche RM20,000,000.00 shall be paid simultaneously with the 2nd tranche of the RM40,000,000.00 under the temporary receipt.

The reasons the negotiations were aborted were inter alia plainly that: a. The Defendant rejected all the Draft SPAs drafted by the fraudulent lawyer as the Draft SPAs did not clearly reflect the RM60,000,00.00 purchase price that was preliminarily negotiated upon; b. The Defendant rejected all the Draft SPAs considering the conspicuous and dubious manner the fraudulent lawyer and fraudulent property agent was insistent that the Draft SPAs to only reflect the price of RM40,000,000.00; c. The Defendant rejected all the Draft SPAs in fear of being held accountable to collude in a tax evasion scheme for understating the true purchase price of RM60,000,000.00 within the Draft SPA itself; d. The Defendant rejected all the Draft SPAs as it was never agreed that the final 3rd tranche of the RM60,000,000.00 be satisfied via transfer of 5 some properties of equal value. Instead the Defendant had at all times insisted that all the RM60,000,000.00 shall be paid by liquid means.

The breakdown and failure of negotiations were plain and obvious. Apart from the clear failure of negotiations, the rejection and abortion of negotiations was clearly recorded and communicated to the fraudulent property agent and the fraudulent lawyer. In fact, the fraudulent lawyer and the fraudulent property agent had by their own written words acknowledged and admitted that either the negotiations had not reached any conclusion or that the negotiation was outright aborted and rejected. There was a barrage of documentary evidence to prove all of these facts both from the Defendant and the Plaintiffs themselves.

Due to the failed negotiations with the Plaintiffs, the Defendant was well within its rights to deal with the land and subsequently sold the land to the successful purchaser, one Dato Lee Siang Huat ("Dato Lee") of Eastern Titan Sdn Bhd ("Eastern Titan") for a cash price of RM58,000,000.00.

Despite being fully aware and personally informed of the total failure and abortion of negotiations with the Plaintiffs, the fraudulent property agent and the fraudulent lawyer (and to an extent even the Plaintiffs) were altogether willing stoop so low so as to hatch a fraudulent scheme in order to secure the would-have-been interest (either in legal fees, agency fees, and land ownership) that these three fraudulent personas would have gained if the negotiations with the Plaintiffs were a success. And these three fraudsters were willing to stoop so low despite having full knowledge that the negotiations have failed and the Defendant had never at any point in time signed or even agreed on any terms with the Plaintiffs.

And the insidious modus operandi of their conspiracy to defraud is to fabricate a façade and false narrative as though the Plaintiffs were well within their legitimate expectation to rely on the ostensible authority of the fraudulent lawyer and fraudulent property agent (as alleged ‘agents’ of the Defendant) to deem that the Defendant-company had ‘agreed’ to one of the Draft SPAs that were prepared by the fraudulent lawyer. Unbeknownst to and without the Defendant-company’s knowledge, the fraudulent lawyer and the fraudulent property agent colluded and had ‘accepted’ one of the sham Draft SPAs which led to the Plaintiffs to sign one of the sham SPAs prepared by the fraudulent lawyer. Supposedly, the Plaintiffs were insisting that the fraudulent lawyer’s and the fraudulent property agent’s acceptance would bind the Defendant-vendor as principal.

In furtherance of their detestable scheme, the fraudulent lawyer and the fraudulent property agent allegedly had ‘accepted’ a further deposit of RM4,800,000.00 (paid to the fraudulent lawyer’s firm) from the fraudulent Plaintiffs. This was yet another façade employed in the machinations to fraudulently force the Defendant-vendor to commit and conform to the sham SPA that it had never agreed to.

The inexplicable contradictions were glaring and were significantly reflective of the fraudulent lawyer’s fraudulent conduct and intent. Despite having confirmed via written email to the Defendant that the negotiations had been aborted, the same fraudulent lawyer subsequently emailed the Defendant-vendor for ‘further instruction’ on the sham SPA that had been signed by the fraudulent Plaintiffs.

To further cement the fraudsters’ sham claim, the fraudsters had the audacity to file the Main Suit [Plaintiffs: (i) Sivakumar a/l Jeyapalan (ii) AMMSA Property Sdn Bhd v Defendant: Firwas Sdn Bhd] before this Court seeking for damages and specific performance to force the Defendant to perform the sham SPA it had never signed and agreed to. To add further disgrace to their sham claim, the fraudulent Plaintiffs, the fraudulent lawyer, and the fraudulent property agent even attempted to delude this Court into believing that the sale price negotiated was a mere RM40,000,000.00 while expecting this Court to ignore barrage upon barrage of evidence in which even the fraudsters admitted to the sale price negotiated had always been RM60,000,000.00. The fraudulent Plaintiffs even lodged caveats upon the land to protect their fraudulent ‘interest’ in the land (in which there was certainly none).

While defending against the Plaintiffs’ sham claim, the Defendant-vendor had also filed their own counterclaim within the Main Suit (Defendant-vendor’s counter-claim: [Plaintiff: Firwas Sdn Bhd v Defendants: (i) Sivakumar a/l Jeyapalan, (ii) AMMSA Property Sdn Bhd, (iii) Thevandran a/l K.Ragavan and (iv) Shoba a/p Govindasamy] for consequential orders to remove the fraudulent Plaintiffs’ wrongful caveat as well as damages for the removal of the caveat and damages against the fraudulent property agent and fraudulent lawyer’s firm.

As though the fraudulent scheme could not have been more sinister, the fraudulent property agent even hatched his own sham counterclaim against the Defendant-vendor and the Defendant’s Director to enforce the sham SPA and to keep the earnest deposit of RM1,200,000.00 he received from the fraudulent Plaintiffs as his ‘fees’ as the Defendant’s property agent. The fraudulent property agent counter-claim against the Defendant-vendor: [Plaintiff: Thevandran a/l K.Ragavan v Defendants: (i) Firwas Sdn Bhd

(ii) Jasim Sura Puthucheary]. [14] This Court had sat through lengthy days of trial having to hear many dubious, inconsistent, and downright nonsensical testimonies from many dishonest and deflective witnesses all of which were from the Plaintiffs’ side of the case. This Court shall certainly put the meat on the bones of this foreword to clearly unravel the clear fraud, conspiracy, and breach of fiduciary duties that the Plaintiffs had dragged before this Court’s doorstep. [15] On the other hand, this Court must laud and express this Court’s utmost appreciation for the Defendant-vendor’s solicitors for preparing an immaculate Written Submission which by and large had encapsulated the core essence of the case. Although the Written Submission was lengthy (spanning over 146 pages), the manner in which the Submission was arranged and presented to this Court had proffered this Court with ease of reading, as well as concise and precise recollection of the critical events that had transpired during trial before this Court (and all the material facts which led to the filing of the Main Suit and the 2 counterclaims). [16] It is well within this Court’s comprehension that Firwas (Defendant-vendor) had not literally pleaded a case for fraud or conspiracy and instead pleaded a case for wrongful breach of fiduciary duty and wrongful entry of caveat. Nonetheless, it was impossible for this Court to ignore the factum that the pleaded facts clearly show that the manners in which the breach of fiduciary duty were perpetrated was obviously fraudulent. Thus, it would not be entirely correct to say that Firwas had not at all pleaded a case for fraud or conspiracy. As far as this Court is concerned, the facts and particulars pleaded within Firwas’s pleading (in its Statement of Defence as well as Counterclaim) sufficiently pleaded the manners and methods the fraud and conspiracy were perpetrated. There is nothing inherently wrong to plead a case that a breach of fiduciary duty was perpetrated by way of fraud or conspiracy, as in essence, the abuse of a fiduciary position can occur vide fraudulent conducts and conspiracy against the victim who had entrusted the fraudster to become his fiduciary. [17] Although the law requires that the allegation of fraud needs to be specifically pleaded, the word ‘fraud’ in the generic sense NEED NOT BE PLEADED. The Federal Court in its landmark decision in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 had clearly held that the question whether the word ‘fraud’ was explicitly pleaded was an insignificant “semantic detail”. The proper question to ask was instead whether or the not the facts which make up the fraudulent conduct were pleaded. In which case, the entire facts of the fraudulent unauthorised ‘acceptance’ of the sham SPA (despite clear failure and abortion of negotiations) by the fraudulent lawyer, fraudulent property agent, and the Plaintiffs were all fully pleaded within the Defendants’ Defence and Counterclaim: “[26] Order 18 r 8(1) of the Rules of Court 2012 read together with r 12(1)(a) requires a specific plea of fraud as well as the particulars of fraud. Yet, it is not always necessary to plead the word ‘fraud’. In Davy v Garrett (1878) 7 Ch D 473 at p 489), Thesiger LJ said: It may not be necessary in all cases to use the word ‘fraud’ — indeed in one of the ordinary cases it is not necessary. An allegation that the defendant made to the plaintiff representations were untrue, and known to the defendant to be untrue, is sufficient. The word ‘fraud’ is not used, but two expressions are used pointing at the state of mind of the defendant — that he intended the representations to be acted upon, and that he knew them to be untrue. [27] Lord Millet LJ, in Armitage v Nurse and others [1998] Ch 241 clearly agreed with Thesiger LJ: The general principle is well known. Fraud must be distinctly alleged and as distinctly proved: Davy v Garrett (1878) 7 Ch D 473 at p 489, per Thesiger LJ. It is not necessary to use the word ‘fraud’ or ‘dishonesty’ if the facts which make the conduct complained of fraudulent are pleaded. … Given its wide acceptance, it is therefore surprising that neither Davy v Garrett nor Armitage v Nurse and others was ever applied in Malaysia to resolve whether it is necessary to plead the word ‘fraud’, until Ranjeet Singh Sidhu v Zavarco PLC [2015] MLJU 638, where Wong Kian Kheong JC first cited Armitage v Nurse and others and said: I do, however, draw attention to two separate aspects of the requirements relating to the pleading of fraud. The first is that there must be an express allegation of fraud. The words fraud or dishonesty do not have to be used. The use of words which are inconsistent with the absence of fraud and dishonesty is enough. It is enough, therefore, to plead that the Defendant was party to an unlawful means of conspiracy since such involvement is wholly inconsistent with an absence of fraud or dishonesty. [30] The time has surely come to make a stand. We entirely agree with the reasoning in Davy v Garrett, Armitage v Nurse and others, and Three Rivers that it is not always necessary to plead the word ‘fraud’ if the facts which make the conduct fraudulent are pleaded.” [18] Even if this Court was wrong in this matter, this Court must staunchly remark that the evidence of fraud and conspiracy was profoundly glaring to the extent that it would be in the interest of justice for this Court to make findings and take judicial notice of the brazen fraud and illegality of the conspiracy that had been perpetrated. It would be well against public policy if this Court were to ignore the glaring illegality that the fraudsters were attempting to enforce. This Court shall take heed upon the Federal Court’s call to vehemently cull and unravel illegalities as and when the illegality arises before the Court EVEN IF THE ILLEGALITY WAS NOT PLEADED (see Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619): “[35] Clearly, therefore, courts are bound at all stages to take notice of illegality, whether ex facie or which later appears, even though not pleaded, and to refuse to enforce the contract. In that regard, we endorse the following [2015] 5 MLJ 619 at 638statement of law by the Court of Appeal per Hamid Sultan JCA, delivering the judgment of the court, in China Road & Bridge Corp & Anor v DCX Technologies Sdn Bhd and another appeal [2014] 5 MLJ 1: At the outset we must say that the trial courts must be vigilant not to provide any relief on contracts which is void on the grounds of public policy, or illegality … whether or not it is the pleaded case of the parties or whether the issue was raised during the trial. The case of Blay v Pollard & Morris [1930] 1 KB 628 where Scrutton LJ observed: Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment which has been followed in a number of local cases will not stand to tie the hands of judges to deal with the above issues, or arrest impropriety on its own motion at limine …” [19] Thus, guided by the Federal Court’s call, it would only be just and appropriate (and it would be well within this Court’s inherent jurisdiction) to address and unravel the rampant illegality (in the form of fraud and conspiracy) plaguing the sham SPA that the Plaintiffs are now trying to enforce. It would be well within this Court’s authority to delve into the law and elements of fraud and conspiracy. This is further supported by the fact that Section 24 (c) of the Contracts Act also clearly stipulated that AN AGREEMENT IS ILLEGAL OR UNLAWFUL IF “IT IS FRAUDULENT”. Thus, even if there was no literal pleading of the words “fraud” or “conspiracy” (in which this Court believes there was sufficient pleaded facts of fraud and conspiracy), it remains well within this Court’s power to delve into the illegality of the sham SPA (which was illegal by fraud and conspiracy). B. FACTS OF THE CASE [20] As mentioned prior, Firwas Sdn Bhd (“Defendant-vendor / Firwas”) was a family business incorporated by one late James Puthucheary and his brothers on 25.10.1983. Three of the four brothers have since passed away. The company survived and is now held by the shareholding of James’ widow, Mavis Puthucheary, Dominic and the estates of the three deceased brothers. Firwas is primarily left under the care, management, and representation of one Jasim Puthucheary (“Jasim”) who is Firwas’s Director and also son of the late James Puthucheary and Mavis Puthucheary. Firwas is the registered proprietor of a large parcel of land held under Lot No. 49259, Geran 5238, Mukim Plentong, Daerah Johor Bahru, Johor Darul Takzim ("subject land"). B(i) The introduction of the Fraudulent Property Agent Thevan to Firwas [21] Firwas was desirous to sell the subject land. What the Defendant thought was an opportunity to sell (but instead turned into an insidious ploy to defraud) was the introduction (by Jasim’s now wife, Irene Raj Kumar (“Irene”)) to Thevandran a/l Ragavan (“the fraudulent property agent / fraudulent Thevan / Thevan”). The fraudulent Thevan sought to abuse the close friendship he shared with Irene. In all dealings and negotiations regarding the subject land, Irene and Jasim had always worked in tandem (together with Mavis as shareholder) to represent Firwas’s interest. In fact, it is by the ticket of Irene’s friendship with fraudulent Thevan, that Firwas had approached Thevan to assist Firwas to find a prospective buyer of the subject land circa late 2017 and early 2018. Irene’s active involvement and representation of Firwas was readily informed to, and acknowledged by Thevan in his WhatsApp conversation with Jasim on 24.1.2018: [22] Thevan then introduced Firwas to the failed purchaser, Siva Kumar a/l Jeyapalan (“2nd Plaintiff / Siva”) who had offered to purchase the subject land for the purchase price of RM60,000,000.00. Firwas (via Mavis, Jasim, or Irene) had never directly communicated with the 2nd Plaintiff. Instead, the negotiations were by and large orchestrated by the fraudulent Thevan (together with the fraudulent lawyer). Since the initial stages of negotiation, it was absolutely clear that Firwas was looking for at least a RM60,000,000 valuation for the purchase price. The mechanism of payment of the RM60,000,000.00 (via the Temporary Receipt and Supplementary Letter of Undertaking by Thevan) was discussed as early as 24.1.2018 via the WhatsApp group correspondence between Jasim, Irene, and the fraudulent Thevan: … [23] In the same WhatsApp group conversation, Thevan also shared a photo of a cheque allegedly issued by Siva for RM1,200,000.00 as earnest deposit to demonstrate Siva’s commitment to further negotiate on the possible purchase of the subject land. The draft Temporary Receipt for RM40,000,000.00 and draft Undertaking by Thevan for the 3rd tranche of RM20,000,000.00 (total RM60,000,000.00) was also shared within the same WhatsApp group conversation. [24] From the outset, even without having to refer to the actual Temporary Receipt and the Letter of Undertaking signed by Thevan, it was already glaringly clear that the negotiated price had always been RM60,000,000.00 and never for RM40,000,000.00. This was one of the many compelling reasons why this Court has to record this Court’s disdain against the appalling attempt by the fraudulent Thevan and Siva to delude this Court to believe that somehow Firwas had agreed to only go by the RM40,000,000.00 valuation in the Temporary Receipt. Against the backdrop of Thevan’s own written admissions, Thevan and Siva still insisted to lie before this Court despite the gruelling evidence that ran adversely against Thevan’s and Siva’s lies. [25] Nevertheless, the evidence of fraudulent Thevan’s and Siva’s lies can be further cemented by further contemporaneous documents (which this Court shall address further down this judgment). Following the WhatsApp group conversation, a meeting was held at the Mandarin Oriental Hotel on 2.3.2018 between Jasim, Irene, and the fraudulent Thevan (“MO Meeting”). During this MO Meeting, Thevan passed to Jasim a Temporary Receipt dated 5.2.2018 (“Temporary Receipt”) which covers the first two tranches of the RM60,000,000.00 (total payment of RM40,000,000.00) alongside the earnest deposit paid by Siva to Thevan. The Temporary Receipt was not at all a concluded contract but merely was Siva’s avenue to demonstrate his intent and commitment to purchase the subject land. Negotiations have not yet properly begun and the purchase was still subject to a properly agreed and executed Sale and Purchase Agreement: [26] Simultaneous to the Temporary Receipt, Thevan also signed and passed an undated Letter of Undertaking in which Thevan undertakes to ensure that Firwas be paid the 3rd tranche of the RM60,000,000.00 via the transfer of two properties owned by Siva. This 3rd tranche payment was negotiated to be transferred simultaneously with the cash payment of the 2nd tranche RM20,000,000.00 stipulated in the Temporary Receipt. This undated Letter of Undertaking was later replaced by Thevan with a dated and signed Letter of Undertaking dated 29.3.2018 (“Dated Undertaking”) which Thevan had forwarded via Whatsapp to Jasim on 5.4.2018. Despite the fact that the draft versions of the Dated Undertaking were clearly exchanged and discussed between Thevan himself, Irene, and Jasim between 27.2.2018 to 5.3.2018, Thevan still insisted on lying before this Court regarding the authenticity of the Letters of Undertaking Thevan himself had signed. B(ii) The introduction of the Fraudulent Unqualified Lawyer Usha to Firwas [27] Adding further misfortune to Firwas, the fraudulent Thevan had on 2.2.2018 introduced to Firwas, the legal conveyancing services of one Maragatham a/p Karuppiah (“fraudulent Usha / fraudulent lawyer / Usha”). It was well within evidence that fraudulent Usha was falsely holding herself out as a licensed lawyer when in truth, she was far from any legal qualification. Her LLB(hons) qualification printed on her (un)professional calling card was a total sham. Unbeknownst to Firwas, fraudulent Usha together with one of her ‘fraudulent firm’s’ partners were currently facing criminal charges for her fraudulent and illegal practice. Usha was in actuality a deceitful pretender who ‘ran’ and salaried the operation of Messrs Mohd Faidzol Rahimi & Partners (now known as Chambers of Rahimi Ibrahim & Co) (“Usha’s fraudulent firm”). The Managing Partner of Usha’s fraudulent firm one Siti Nur Aliaa Binti Shaik Khamarudin (“Siti”) stood before this Court in a tell-all testimony where she revealed the true fraudulent modus operandi of Usha’s fraudulent firm: Cik Aliaa, dalam firma anda, siapa mengendalikan akaun, semua akaun firma? Siapa yang? Siapa yang, who handles – Siapa yang mengendalikan akaun firma tersebut? Siapa yang mengendalikan akaun firma tersebut? Duit masuk, duit keluar, cek masuk, cek keluar, siapa yang kendalikan? Yang Arif, saya, boleh tak saya nak minta izin? No, just answer the question. Yang mengendali – Jawapan soalan. Tak, semalam Cik Aliaa kata Cik Aliaa bila jadi managing partners, tak tahu tentang kewangan, you buat fail sahaja. You buat fail sahaja. Jadi, dalam firm, you tak buat kewangan langsung. Jadi, kita nak tanya, kalau you tak buat kewangan, mengendalikan akaun, siapa yang buat kewangan dekat firm,firma Cik Aliaa? Yang Arif, saya bercakap jujur bahawa semua keluar masuk duit adalah Usha. Usha? Bukan saya. Saya bercakap jujur. Jujur pasal apa, kita Islam, kan? Pasal akhirat nanti, ya. Akhirat nanti. Kita tak tahu, nanti kalau kita tak minta maaf dekat orang – Saya tersepit, Yang Arif. Allah akan cari. Pasal saya hidup, 60 tahun saya hidup atas principle bercakap benar. Bukan kerana wang, bukan kerana material. Saya tahu. … Saya nak bercakap benar, dan sebenarnya Usha yang mengendalikan? Usha yang urus semua. Ya? Usha yang mengurus semua tentang pejabat. JUDGE Ok. … Sama ada Usha tidak ada jawatan official dalam pejabat, dia control semua? Benar, Yang Arif. Again? Even though she does not have any official position in the firm, she controls the firm. Walaupun dia tidak mempunyai apa-apa position, dia mengawal firma tersebut. Ini firma Rahimi lah, ya? Firma Rahimi, ya? Chambers of Rahimi. Sebenarnya, Cik Aliaa, Usha adalah tuanpunya, Usha is the owner of the firm. Ya. [28] In fact, one Sebastian Fashiano Albert (“Albert”), the then Registrar for Brickfields Asia College (“BAC”) had testified before this Court that all of her BAC certificate or qualifications were all blatant forgeries. Usha neither had any degree from King’s College nor was she ever offered an opportunity to do her CLP at BAC. Albert’s testimony went entirely unchallenged. None of the counsels who were offered the opportunity to cross-examine, actually took the opportunity to cross-examine Albert’s testimony regarding Usha’s blatant forgeries and fraud. Thus, the factum of Usha’s forgeries of her qualifications and Usha’s fraudulent unlicensed law practice remained totally unchallenged and admitted by all parties. [29] Shedding further light onto fraudulent Usha’s treacherous ways was one Faidzol Rahimi (a former partner in Usha’s fraudulent firm) who was already struck off the rolls due to prior professional misconduct (“Faidzol”). Faidzol testified before this Court and had during cross-examination even admitted that the entirety of the firm was managed by fraudulent Usha to the extent that Faidzol admitted that he had NO FUNCTION at all within the firm: “Judge: Ok, itu untuk barang dokumen, jadi, urusan-urusan pengendalian oleh, transaksi ini, siapa yang uruskan? FAIZOL: Usha dan kerani … Judge: Segala urusan Usha yang buat? Faizol: Ya. Judge: Segala mana itu, kewangan, Usha yang buat. So fungsi you kat firm itu apa? Saya nak Tanya fungsi you kat firm itu” Faizol: TAK ADA FUNGSI, YANG ARIF” [30] The extent of manipulation and deceit by Usha was so gruelling to the extent that Faidzol outright testified that Usha had abused Faidzol’s qualifications as a lawyer to cover her unlawful activities of rendering illegal legal services without proper qualifications. This Court pauses here to remark that both Faidzol and Aliaa’s demeanour during their testimonies were reflective of their guilty conscience for illegally holding out Usha as a qualified lawyer (when in truth she was merely a conniving fraudster). They knew of Usha’s fraudulent modus operandi and they knew that Usha had hired them into the firm only to abuse their legal qualifications as lawyers: “Judge: Wait, before. Jadi, you ini sebenarnya dipergunakan lah betul, boleh saya kata you dipergunakan? Faizol: BOLEH, YANG ARIF” B(iii) The total and obvious failure as well as cease of negotiations with Siva [31] Thus, the fraudulent Usha had from the very beginning of her introduction by fraudulent Thevan bore an insidious intent to fraudulently reap monetary benefits by fraudulently facilitating the sale of Firwas’s subject land. Considering Usha’s fraudulent beginnings, the fraudulent manner in which Usha and Thevan conducted their business were difficult to hide. Their fraudulent design gradually slipped through the cracks. Firwas via Irene, Jasim, and Mavis was constantly perplexed by Usha’s insistence to not follow their instructions and insistence to clearly and honestly stipulate the purchase price of RM60,000,000.00 and the mechanism of payment of the full purchase price in one singular SPA. Usha had always came up with Draft Sham SPAs which never spelled out the RM60,000,000.00 despite numerous instructions to consolidate all of the payment mechanism within one singular SPA. Usha’s insistence even heightened Jasim’s cautiousness as to not be implicated with any criminal charges for tax evasion. [32] As Usha was the supposed conveyancing lawyer suggested by Thevan, Jasim had clearly voiced out his disagreements with all of the draft sham SPAs which were prepared by fraudulent Usha to both Thevan and Usha. Jasim was unequivocally concerned that everything that Usha had prepared was not even legally enforceable or was nowhere close to reflecting the terms negotiated for the sale of the subject land. One of the core errors that Thevan and Usha peculiarly always had failed to rectify was the manner and method the 3rd tranche of the RM60,000,000.00 was supposed to be paid. Jasim had always remained resolute that all of the RM60,000,000.00 shall be paid by cash means. However, Usha and Thevan kept on failing to amend the draft SPAs and kept on insisting that the 3rd tranche be paid by the transfer of two other properties owned by Siva: "[30/03/2018, 1:23:04 PM] Jasim: Chief the letter says that payment of the 20m balance will be satisfied through the transfer of the two properties. I think this has to be reworded to say that the 20m will be satisfied in cash from the sale proceeds of the 2 properties. Once this payment is received the property will be transferred under the spa [30/03/2018, 123:17 PM] Jasim: Can I collect later today chief {02/04/2018, 10:25:59 AM] Jasim: Chief my side has a concern that they will agree to transfer the property under the spa for 40m whether or not the balance 20m is paid or not. They are concerned that they may not receive the balance. Basically they are saying that is not the way the sale should be done. Can you assist to give a solution to this? one way is to include this as an additional instruction to the purchasers solicitors so they have to receive the 20m from you and pass this to our solicitors before they can register the transfer. Is that ok? 02/04/2016, 10:45:30 AM] Thevan: Oh my” [33] Despite Jasim’s clear instructions, Thevan merely just sent the Dated Undertaking and had not endeavoured to ensure that the next draft SPA be amended to reflect the terms Firwas had always intended. AND BY THEVAN’S OWN WORDS, THEVAN ADMITTED THAT “THE DEAL WILL FALL” if Firwas continues to insist on the cash payment of the final 3rd tranche of the RM60,000,000.00 (which Firwas indeed had insisted on): [05/04/2018, 2:34:39 PM] Thevan: 20180405142007696 • 1 page attached 00000305-20180405142007696.dE>[Undertaking date 29.3.2018 attached] [05/04/2018, 2:46:52 PM] Jasim: Chief I appreciate the changes made. However I have been instructed that the 20m cash must be available to us at the time the transfer Is to be done. I don't know how to accomplish this. [05/04/2018, 2:50:15 PM Thevan: Aiyo [05/04/2018, 2:50:21 PM] Thevan: The deal will fall [05/04/2018, 3:09:47 PM] Jasim: I can't do much to change their decision. I have tried my best. They need certainty in receiving cash when transfer is to be done. [34] Despite being informed by Firwas that the negotiations are already at the precipice (cliff) of failure, fraudulent Usha was still not able (or was intentionally reluctant) to prepare a draft SPA which would effectively incorporate Firwas’s terms. Firwas was resoundingly frustrated and had on 10.4.2018 indicated its intent to cease dealings with Usha and to appoint new lawyers to best represent Firwas’s interest. Upon being informed of Firwas’s intent, Thevan desperately scuttled and informed Firwas that he would speak to Usha to rectify the matter: [10/04/2018, 2:35:42 PM] Jasim: Chief I've gone through the two agreements sent by Usha and on top of general mistakes and inconsistencies, my comments before on the relationship of the 2 documents remains. I have asked her to clear up the documents and then explain to me how the documents are legally enforceable. If she can't complete this step I suggest proceeding with someone else because we are losing too much time on getting this right [10/04/2018, 2:36:56 PM] Thevan: Let me speak to Usha" [35] Up to this point, it was already apparent that even as early as 5.4.2018, negotiations have failed and not even one of the draft sham SPAs prepared by fraudulent Usha was accepted by Firwas or any representatives of Firwas. Fraudulent Thevan had in clear terms expressed that the negotiations with Siva “WILL FALL” if Firwas still insisted on the terms they had already intimated to both fraudulent Usha and fraudulent Thevan. Thus, considering that Firwas remained unmoved and insistent on its terms, it should have been abundantly clear to both Usha and Thevan that Firwas had never agreed to the sale to Siva. [36] Two (2) months had passed since Firwas’s clear, absolute, and unmitigated rejection of the negotiation with Siva. Despite the clear ceasing of negotiations, fraudulent Usha still attempted to protract her scheme to falsely commit Firwas to the sham SPAs that she had drawn up. Despite the clear failure of negotiation, Usha still sent a single draft SPA for the wrong purchase price of RM40,000,000.00 (in clear contravention of Firwas’s instruction and intent) on 4.6.2018. It must be kept strictly in mind that Firwas had NEVER signed any of the sham SPAs prepared by fraudulent Usha. [37] Considering the failure of negotiations, it was apparent that Firwas was free to deal with the subject land as it pleases. The Temporary Receipt from the outset was never a binding contract to begin with as it was merely an ‘agreement to agree’ or an agreement subject to the finalisation and th execution of a formal contract. In accordance to Firwas’s indefeasible rights as registered proprietor, Firwas successfully secured an agreement to sell the subject land to Dato Lee of Eastern Titan on 12.6.2018. [38] Irene as one of the known representatives of Firwas had in clear terms informed fraudulent Thevan that Firwas and Mavis (as shareholder) were no longer interested to negotiate with Siva. Irene in clear and unambiguous terms informed Thevan via whatsapp on 18.6.2018 that the negotiation is “gone” and that Mavis does not want to proceed with the draft SPAs prepared by Usha: "17/06/2018, 13:50 - IR: Abang 17/06/2018, 13:51 - IR: the shareholders are meeting today. JP's mom does not want to do the deal. 17/96/2018 14:03 - TR: Oh 17/06/2018, 14:11 - TR: Call 17/06/2018, 14:11 - TR: I call nirvana? 17/06/2018,14:12 - IR: Can't afford nirvana 17/06/2018,14:13 - TR: ·· 17/06/2018, 14:14 - TR: Find out why? Perhaps work on that to correct it? 17/06/2018, 14:16 - IR: With all the constant changes, she is very unhappy. 17/6/2018, 14:18 - TR: No more changes 17/06/2018, 14:18 - TR: It's almost there. 17/06/2018, 14:19 - IR: Yes, and they have not agreed from the previous 17/06/2018, 14:19 - TR: Ok. Call when u can 17/06/2018, 14:19 - TR:, tj 18/06/2018, 10:08 - IR: Good morning 18/06/2018, 10:13 - TR: Salam 18/06/2018, 10:19 - IR: Its gone 18/06/2018, 10:19 - TR: .. 18/06/2018, 10:20 - TR: Good la 18/06/2018, 10:20 - TR: Reason? 18/06/2018, 10:21 - TR: 18/06/2018, 10:21 - TR: What to do lo .... ·· 18/06/2018, 10:21 - IR: She does not want to go ahead because she is unhappy with constant addendums. 18/06/2018, 10:22 - TR: Must give her a chill pill 18/06/2018, 10:22 - TR: · 18/06/2018, 10:22 - TR: And vodka 18/06/2018, 10:22 - IR: She said she has decided and no more talking” [39] Despite having full knowledge and awareness of Firwas’s decision to not proceed with the sale to Siva, Thevan had already begun to spur his fraudulent scheme by knowingly withholding Irene’s communication from Siva. Fraudulent Thevan testified before this Court that he had done so on the pretext that Irene’s communication was somehow ‘inconclusive’. Thevan’s testimony over the ‘conclusiveness’ of Irene’s communication was one of the barrage of instances of Thevan’s outright lie and self-contradictions before this Court. Despite denying the conclusiveness of Irene’s communication, Thevan himself by his own viva voce testimony before this Court admitted that he himself understood that Irene’s whatsapp message indeed conclusively indicated that either: a. Firwas does not want to sell the subject land to Siva: b. That the negotiation or deal with Siva has ceased or was ‘gone’: c. That Irene was clear in saying that the deal is ‘off’: [40] The fact that Thevan spurred further continuation of the negotiation despite Irene’s clear and resolute termination of the negotiation was simply confounding. Thevan then informed of the ceasing of negotiation to Usha. Usha in turn, in clear and unequivocal terms had admitted and acknowledged that the negotiation has been “ABORTED”. Fraudulent Usha had recorded as such in writing via her email to Thevan dated 18.6.2019 which was forwarded by Thevan to Irene (“Usha’s Abortion Email”). Usha had also enclosed her firm’s invoice for conveyancing work done: [41] It was glaringly obvious that even fraudulent Usha had acknowledged that the negotiations between Firwas and Siva “had been aborted”. There literally was not any room whatsoever for fraudulent Usha, and fraudulent Thevan to squirm and to delude this Court to believe that there has not been any outright termination by Firwas. It must be strictly kept in mind that Usha’s Abortion Email here was sent to Thevan and Thevan had forwarded the same to Irene. If Thevan genuinely believed that the termination was inconclusive, then Thevan should have replied to Usha’s email to set the record straight. The fact that Thevan had never bothered to ‘correct’ Usha simply proves the truth of the matter that indeed the negotiations had already been entirely aborted without any room for confusion or uncertainty. [42] Following the consistent resolution to cease all negotiations with Siva, even Jasim had sent an email dated 18.6.2018 to clearly put on record that Usha consistently failed to abide by Firwas’s comments and instruction to amend the terms within the draft sham SPAs. Jasim further recorded that Firwas does not agree whatsoever to the draft sham SPAs prepared and sent by the fraudulent Usha: [43] The end and total cease of negotiations between Firwas and Siva could not have been clearer. Fraudulent Usha had by email confirmed that the sale was aborted. Adding further finality to the abortion was the fact that Usha herself had issued a final bill for the conveyancing work she had fraudulently done under the guise of the fraudulent firm. But despite the clear and total abortion of the negotiations, Thevan, Usha, and now, the fraudulent Siva began to collude and turn the wheels of their tri-partite concerted fraud to falsely commit Firwas to the sham SPA prepared by Usha. B(iv) The tri-partite concerted fraud of fraudulent Thevan, fraudulent Usha, and the fraudulent 2nd Plaintiff, Siva [44] Now, before this Court delves into the inner workings of the tri-partite fraud, this Court must address Siva’s testimony before this Court that Siva allegedly had no knowledge of the sale by Firwas to Eastern Titan, and had only relied on Thevan’s and Usha’s say-so as agents of Firwas. This was one of the many excruciatingly obvious lies and deception that riddled the entirety of Siva’s testimony. [45] Siva attempted to feign ignorance and ‘innocence’ as though he had proceeded to sign the sham SPA prepared by fraudulent Usha and had proceeded to allegedly pay a further RM4,800,000.00 million deposit to Usha’s fraudulent firm as he was unaware of the sale to Eastern Titan. But this entire façade of a testimony can be debunked by referring to the close, direct, and interpersonal WhatsApp group conversations shared between the three fraudsters Usha, Thevan and Siva. Bear in mind that all of these fraudulent scheming had transpired AFTER Firwas’s sale to Eastern Titan and AFTER all three of the fraudsters already knew that the negotiations have entirely failed and Firwas had sold the subject land Eastern Titan. [46] Before the fraudulent ‘acceptance’ of Usha’s sham SPA on 2.7.2018, it was fraudulent Siva himself who had ‘alerted’ Thevan and Usha on 26.6.2018 (two weeks before the fraudulent acceptance of the sham SPA) of the fact that Firwas had sold the land to Eastern Titan. It was Thevan who shared photos of the Power of Attorney issued by Firwas to Eastern Titan under the sale to Eastern Titan: WhatsApp between Usha and Siva on 26.6.2018 and 27.6.2018: "26/6/2018, 19:30 - Siva Kumar: [23 Images on land clearing at the Property - B11, p.15 - 18] 27/6/2018, 11:20 - Siva Kumar: [3 Images of Power of Attomey­ B11, p.19 - 21] 27/6/2018, 11:20 - Siva Kumar: They have sold the land ... pls check 27/6/2018, 11:42 - Siva Kumar: [1 Image of Power of Attorney and 2 Images of land clearing at the Property – B11 - p.22 -24] WhatsApp between Thevan and Siva on 26.6.2018 and 27.6.2018: 26/06/2018, 14:10 - Siva Kumar: [8 Images land clearing at the Property-B6, p.106 -109] 26/06/2018, 14:14 -Siva kumar: [2 Images land clearing at the Property - B6, p.110] 26/06/2018, 14:16 - Siva Kumar: [Image of land clearing at the Property-B6, p.111] 26/06/2018, 14:16 - Siva Kumar: Media omitted 26/06/2018, 14:16 - Siva Kumar: Media omitted 26/06/2018, 14:16 - Slva Kumar: Media omitted 26/06/2018, 14:16 - Slva Kumar: Media omitted 26/06/2018, 14:31 - Siva Kumar: I am in JB till tomorrow. My flight is at 6pm.. can come to.arrow and make police report ect will b good. I can join u guys. 26/06/2018, 14:31 - Thevan R: Ok 26/06/2818, 20:00 - Siva Kumar: [Image of land clearing at the Property-B6, p.111] 26/06/2018, 20:01 - Siva Kumar: Red 15 location where land is cleared Now 26/06/2018, 20:04 - Siva Kumar: <Media omitted> 6/06/2018, 20:05 - Siva Kumar: Need to rotate this anti clockwise to match the earlier map 26/06/2081, 20:05 - Thevan R: Ok. 26/06/2018, 21:43 - Thevan R: Chief No news as of yet. Will chat am 26/06/2018, 21:48 - Siva Kumar: Ok sir, 27/06/2018, 11:15 - Siva Kumar: [1 Image of Power of Attorney and 2 Images of land clearing at the Property-B11- p.22 -24] 27/06/2018, 11:20 - Siva Kumar: «Media omitted» 27/06/2018, 11:20 - Siva Kumar: <<Media omitted> 27/06/2018, 11:21- Thevan R: Oh my 27/06/2018, 11:22 - Siva Kumar: Pls call me sir 27/06/2018, 11:25 - Thevan R: Ok Chief 27/06/2018, 11:41 - Thevan R: «Media omitted> 27/06/2018, 11:41 - Slva Kumar; <Media omitted» -y PoA 27/06/2018, 11:41 - Siva Kumar; <Media omitted> 27/06/2018, 11:41 - Siva Kumar: «Media omitted» 27/06/2018, 11:41 - Siva Kumar: <Media omitted 27/06/2018, 11:59 - Siva Kumar: There was also a police report made by Eastern Titan to do the land clearing. [47] Thus, without a shade of doubt, Siva had colluded with Thevan and Usha (“fraudulent trio”) as the fraudulent trio to fabricate a narrative of ‘innocence’ and innocent reliance on the agent-principal relationship between Firwas, Thevan and Usha. Siva knew well ahead of the fraudulent acceptance on 2.7.2018 that the negotiations have failed and that the subject land has already been sold to Eastern Titan. The first step taken to actuate the tri-partite fraud was that Thevan instructed Usha to lie and deceive Ms Selvi into believing that Firwas had agreed upon the last draft sham SPA Usha had prepared. This lie was clearly reflected within Ms Selvi’s email to fraudulent Usha on 20.6.2018: [48] During cross-examination, Usha effectively admitted her fraudulent collusion with fraudulent Thevan as she had admitted that she had ‘accepted’ the draft sham SPA on the instruction of Thevan and NOT OF HER OWN CLIENT, Firwas. When questioned further, fraudulent Usha even ADMITTED THAT SHE HAD NOT VERIFIED THE ACCEPTANCE DIRECTLY WITH FIRWAS and was fraudulently adamant to only rely only on fraudulent Thevan’s say-so. It was truly unimaginable that a lawyer (albeit a fraudster in this case) would not even care to get direct and personal confirmation from her own client especially when the mandate she undertook was at least valued at a life-altering sum of RM60,000,000.00: … [49] It must be remembered that this communication between Selvi and Usha had occurred despite the fact that Usha had confirmed (earlier in time) via email that the negotiation had been aborted. This gross self-contradiction was thoroughly inexplicable and can only logically be inferred as an intentional deception to lay the foundation to the tri-partite fraud. Thereafter on 2.7.2018, Siva instructed Selvi to pass the sham SPA which he had signed together with the cheque for the deposit balance to Usha. With the fraudulent ‘acceptance’ and alleged payment of the deposit balance, the fraudulent trio effectively fabricated a narrative as though Firwas had already committed itself to be bound by the sham SPA (despite the fact that Firwas never signed nor had ever agreed to any of the sham SPA prepared by the fraudulent Usha). [50] In furtherance of the tri-partite fraud, Usha had via her email on 5.7.2018 to Jasim sought for Jasim’s instructions despite Usha having fully admitted and acknowledged that the negotiations have been aborted since 18.6.2018. Jasim on 12.7.2018 had clearly put on record via an email to Shoba (one of partners of Usha’s fraudulent firm) which was also copied to Usha, that Firwas had never at any time approved of any of the sham SPAs prepared by Usha and that negotiations have already been recorded to be aborted by Usha herself: [51] The tri-partite fraudulent scheme continued when fraudulent Siva had wrongfully lodged a caveat on the subject land. On 30.8.2018 Siva whatsapped Dato Lee informing him that he had lodged a caveat onto the subject land and that he already had paid RM6,000,000.00 deposit to Firwas under the sham SPA. [52] And as a final act of the fraudulent trio’s fraudulent machinations, the fraudulent Siva had the audacity to sully this Court’s doorstep and filed the Main Claim against Firwas for damages and to specifically enforce the sham SPA which Firwas had neither executed nor ever agreed to. The fraudulent Thevan also had the gall to file a counterclaim to support Siva’s unlawful attempt to enforce the sham SPA while also claiming to declare that the earnest deposit he had received from Siva is rightfully his as his ‘agency fees’. Firwas astutely defended against all the claims and had also filed its own counterclaim against the Plaintiffs, fraudulent Thevan, and Shoba a/p Govindasamy (as a partner of Usha’s fraudulent firm) inter alia for consequential order to remove the unlawful caveat lodged by fraudulent Siva, damages for the unlawful lodgment of the caveat, as well as damages for breach of fiduciary duty, fraud, and conspiracy. [53] This Court went over many challenging days’ worth of Notes of Evidence, ploughed through voluminous documents and written submissions across the Plaintiffs’ sham Main Claim, Thevan’s sham counterclaim, and Firwas’s counterclaim and this Court is of the view that the case before this Court can be determined by gradually addressing and answering the following issues: a. Preliminary issue 1: Whether or not there were any merits to Thevan’s, Shoba’s and the Plaintiffs’ perplexing challenge as to Jasim’s and Irene’s representative capacity to represent the interest of Firwas; b. Preliminary issue 2: Siva, fraudulent Thevan, and fraudulent Usha were deceitful witnesses with critically impugned credibility; c. Whether or not Siva can ‘innocently’ rely on the ostensible authority of fraudulent Thevan, and fraudulent Usha to falsely commit Firwas to the sham SPA prepared by Usha; d. Whether or not Firwas was bound to the terms of the sham SPA which it had never signed or ever agreed to; and e. Whether or not fraudulent Siva, fraudulent Thevan, and fraudulent Usha (and her fraudulent firm) had all colluded in a concerted tri-partite scheme to fraudulently force Firwas to commit to the sham SPA C. PRELIMINARY ISSUE 1: Whether there were any merits to Thevan’s, Shoba’s and the Plaintiffs’ perplexing challenge as to Jasim’s and Irene’s representative capacity to represent the interest of Firwas. [54] This Court is beckoned to first address a preliminary issue raised by the Plaintiffs, Thevan, and Shoba. In typical fashion of a deceitful and sham claim, there are bound to be inexplicable discrepancies, self-contradictions as and when untruthful litigants were no longer able to bend the truth of a matter. One perplexing contradiction which arose from the Plaintiffs’, Thevan’s, and Shoba’s case were their awkward and self-defeating challenge against Jasim’s and Irene’s authority to represent Firwas. [55] Thevan and Shoba raised this challenge in their attempt to deflect any fiduciary duty as claimed by Firwas. By their flawed logic, as Jasim and Irene were not legal representatives of Firwas, they had no authority to appoint either Thevan or Shoba as fiduciaries. The Plaintiffs on the other hand was attempting to impugn the validity of the termination communicated by Firwas via Jasim and Irene. [56] These challenges were befuddling firstly because it goes against the very fabric of their sham claims against Firwas. By plain logic and law, if Jasim and Irene both had no authority to speak for Firwas, then the entirety of the negotiation facilitated by Thevan and Usha across the Temporary Receipt until the sham SPA WERE ALL UNLAWFUL AND UNENFORCEABLE. Thus, by this logic, the cases for Shoba, Thevan, and Siva would unceremoniously fail. It is certainly perplexing that Shoba, Thevan, and Siva would even consider staking this stance. The only viable explanation would be that they were thoroughly desperate and were merely raising false contentions at their whims without any proper consideration of plain logic and the unbendable truth which they know they cannot defeat. [57] Secondly, these challenges would grossly contradict their own conduct in admitting and acknowledging Jasim’s and Irene’s representative capacity and authority to represent Firwas. If Jasim or Irene were genuinely believed to not have any authority, then this Court asks the rhetorical question, why did fraudulent Thevan, fraudulent Usha, and Shoba exclusively communicated with either Jasim or Irene in seeking instructions as to Firwas’s position on the many draft sham SPAs prepared by Usha? If Firwas’s interest does not depend on Jasim’s or Irene’s say-so, then why did they bother dealing with Jasim and Irene at all? It is plain and obvious that all parties had acted in manners which clearly acknowledged Jasim’s, Irene’s, and Mavis’s authority to represent the interest of Firwas. [58] It is very apparent to this Court that the Plaintiffs, fraudulent Usha, and fraudulent Thevan had no integrity and honest cohesion whatsoever in their cases. They contend arguments and negated the same arguments as and when they please and as and when the argument was ideal to their cases. They blew hot and cold. At one end they were more than willing to uphold Irene and Jasim’s representative capacity of Firwas to commit Firwas to the Temporary Receipt and sham SPA but at the other extreme end they deny Jasim’s and Irene’s authority to represent Firwas in appointing Thevan, Usha, and the Usha’s fraudulent firm as fiduciaries of Firwas. [59] Estoppel shall apply to bar the Plaintiffs, Shoba, Thevan, and Usha from inequitably denying the representative capacity of both Jasim and Irene. The principle of estoppel was very recently restated by the Court of Appeal in the case of Ho Yau Hong & Ors v How Yaw Ming and another appeal [2023] MLJU 933: “[40] The Federal Court’s decision in the case of Boustead Trading 331 has cautioned against such adoption of contradictory stances: “When the parties to a transaction proceed on the basis of an underlying assumption either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on the assumption when it would be unfair or unjust to allow him to do so”. lt would facilitate moral decadence within our social structure. [41] Such approbating and reprobating of stances have also been cautioned against by the Court of Appeal in the case of Cheah Theam Kheang v City Centre Sdn Bhd & Other Appeals (2012) 2 CLJ 16 which had held the following: “In other words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Ltd and Others (1990) 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance” [60] Effectively thus, the Plaintiffs, Thevan, Usha, and Shoba are all estopped from denying Jasim’s and Irene’s authority to conclusively terminate the negotiations with Siva. The negotiations were validly terminated and no parties have any rights to impede on Firwas’s rights to sell the subject land to Eastern Titan. D. PRELIMINARY ISSUE 2: Siva, fraudulent Thevan, and fraudulent Usha were deceitful witnesses with critically impugned credibility [61] As this Court has mentioned prior, the extent of deceit and dishonesty emanating from the Plaintiffs’ witnesses were astounding and confounding. The deceit was glaring as Siva, Thevan, and Usha could not stand against the overwhelming evidence which ran adversely against their fraudulent narrative. They were caught in their web of lies as the cross-examinations and even their own documents gradually chip away their lies and reveal the real truth of the matter. Siva, Thevan, and Usha in actuality had a plethora of deceits and inconsistencies that they were unable to clarify or rationalize. However, this Court is of the mind that it shall suffice that this Court highlights the more profound deceits that the fraudulent trio could not justify. D(i) Usha’s admission to perjury and falsification of Bank Documents [62] One of the core contention led by the fraudulent trio to commit Firwas to the sham SPA was that Firwas (via the fraudulent firm) had accepted a further RM4,800,000.00 from Siva (which Siva allegedly had paid to Usha’s fraudulent firm). It was this further payment of deposit that the fraudulent trio had leveraged to somehow prove that Firwas had agreed (and had obtained monetary benefit) from the deal with Siva. [63] But it was utterly detestable when this Court discovered that fraudulent Usha herself, upon cross-examination, had ADMITTED TO PERJURY AND FALSIFICATION OF BANK DOCUMENTS to reflect the supposed receipt of RM4,800,000.00 by the fraudulent firm. [64] The perjury and forgery were unearthed when Firwas called to challenge the truth of the alleged receipt of RM4,800,000.00 by Usha’s fraudulent firm. Usha had attempted to prove receipt of the monies by tendering into the Court a totally perjured AmBank Account Statement which supposedly showed that Firm’s account had a balance of RM4,808,048.22. AmBank officers were called to testify and the officers testified that the figures in the account statement had been ALTERED. In actuality, the real and authentic account statement indicated that the Firm’s account only had RM48.22. [65] When faced with the evidence of this perjury, FRAUDULENT USHA ADMITTED THAT SHE WAS THE PERSON WHO HAD ARRANGED AND INSTRUCTED THE PERJURY OF THE ACCOUNT STATEMENT: … [66] The lengths and extent fraudulent Usha would endeavour to sell her deception was immeasurable. It was not beneath Usha to tender into this Court forgeries and perjury. This ran consistent with fraudulent Usha’s fraudulent constitution from the very setup of her fraudulent firm. It is second nature to Usha to lie and deceive. It is not at all far-fetched that Usha had ill-intentions from the very beginning of her introduction to Firwas by fraudulent Thevan. [67] The only lacklustre justification fraudulent Usha could muster was that she was cornered to commit the forgery because Faidzol had absconded with the monies. But even this falsity does not make any sense as there should be no reason for Usha to risk her own reputation and position to cover up Faidzol’s supposed abscondment of the monies. It would have been far simpler and far more ideal for Usha to just pass the buck to Faidzol. But this was not at all the case here. For some inexplicable reason, Usha would risk her own neck to cover Faidzol’s abscondment. In truth, it was thoroughly more probable than not that Usha had committed the forgery not to hide Faidzol’s abscondment but instead to FALSELY CREATE DOCUMENTS TO PROVE PAYMENT OF RM4,800,000.00 BY SIVA TO FURTHER CEMENT THE TRIPARTITE FRAUD. [68] When cross-examined on her falsified qualifications as a lawyer, Usha could only repeat bare denials of BAC’s registrar’s evidence of proving her forgery of her BAC certificates. Almost anything and everything regarding Usha was fraudulent and were forgeries. Her BAC qualifications was a scam, the SPAs she had illegally prepared were a sham, and now even her firm’s own bank statement was admitted to be a total sham. [69] We have already delved into Usha’s fraudulent ‘acceptance’ of the sham SPA on behalf of Firwas in the earlier part of this Judgment. Adding further damage to Usha’s fraudulent indulgence (debauchery), she was also lying on the supposed ‘agreed’ selling price of the subject land. It was clearly recorded in writing that Firwas had always insisted on a RM60,000,000.00 purchase price. Documents were even prepared to attempt to construct a mechanism in which Firwas would in some manner receive RM60,000,000.00. Nonetheless, despite all these immutable evidence, Usha still insisted on lying before this Court and insisted on the RM40,000,000.00 sham purchase price prescribed under the sham SPA fraudulent Usha had prepared. Usha during cross-examination initially admitted that the payment mechanism was for a two-parts payment totalling up to RM60,000,000.00: [70] Keeping with her web of self-contradictions and lies, Usha also suddenly contradicted herself and kept insisting to lie before this Court that Jasim was in agreement to whatever price that was stated in the sham SPA Usha had prepared (being RM40,000,000.00). Usha insisted on this lie despite testifying before this Court that she had never sought for confirmation or verification of Jasim’s supposed instruction from Jasim himself: [71] There was not even a spec of honesty or consistency in Usha’s testimony. The sale price was somehow both RM60,000,000.00 and RM40,000,000.00. It was neither here nor there. It was whatever it could be as and when it benefits Usha’s web of fraud and breach of fiduciary duties. D(ii) Thevan’s obvious lies and contradictions in his testimony before this Court [72] As Thevan was also a prominent persona in the tripartite fraud, it was not at all surprising that Thevan was also in sync with fraudulent Usha’s web of lies and self-contradictions. Just like Usha had done, Thevan was also willing to stoop so low so as to lie despite his own written documents and admissions were totally in contradiction to the fraudulent narrative he was trying to paint. [73] Just as fraudulent Usha seemed flustered and confused with her stance on the ‘agreed’ purchase price for the subject land, Thevan also fluctuated between admitting that the negotiated purchase price to be RM60,000,000.00 and at other times RM40,000,000.00. This telling contradiction was astutely highlighted by the learned counsel for Firwas. [74] Twice in fraudulent Thevan’s Amended Defence to counterclaim and also his Amended Witness Statement, Thevan insisted that the negotiated purchase price had always been RM40,000,000.00. Thevan went as far as try to conceal and deny the existence of the Undated Undertaking and the Dated Undertaking that he himself had prepared and signed to suggest a mechanism to Firwas for the payment of the 3rd tranche of RM20,000,000.00 (totalling up to RM60,000,000.00). [75] Thevan first lied in his own Amended Defence to Counterclaim inter alia in paragraphs 7, 15, 16, and 17 by insisting that the purchase price negotiated and agreed had always been RM40,000,000.00: … [76] Thevan echoed the same lie in regarding the alleged RM40,000,000.00 purchase price in his own Amended Witness Statement. In fraudulent Thevan’s Witness Statement, Thevan testified that Firwas or Jasim had never written to any party to confirm that the sale price was to be RM60,000,000.00. This lie Thevan testified despite his own written and signed documents admitting that there were 3 tranches payment totalling up to RM60,000,000.00. This lie Thevan proffered despite his own confirmation and communications directly with Jasim that the 3 tranches payment shall total up to RM60,000,000.00: [77] Fraudulent Thevan’s lie was then aptly dismantled during cross-examination when Thevan no longer had any excuse or room to deny the real truth of the matter in that he had lied and that he had all this while admitted and acknowledged that the purchase price negotiated was RM60,000,000.00. Against his own pleaded case and witness statement tendered, Thevan thoroughly and completely contradicted himself and admitted that the RM1,200,000.00 earnest deposit Thevan had collected from Siva was to secure the purchase price of RM60,000,000.00 and not RM40,000,000.00 as Thevan had incessantly lied ad nauseam in his own pleading and Witness Statement: … [78] It was apparent that fraudulent Thevan would not hesitate to hit below the belt and lie to this Court as and when Thevan seeks to vindicate himself. This Court was very well aware that Thevan then had to ‘shift’ his lie and later testified another version of deception in that Firwas originally insisted on RM60,000,000.00 price and later reduced the price to RM40,000,000.00 out of ‘desperation’. Thevan was already caught in his first web of lies and there was nothing compelling at all for this Court to now believe whatever false narratives Thevan was desperately trying to concoct. Besides, Thevan’s testimony on Firwas’s desperation was never pleaded by Thevan. Thus, fraudulent Thevan’s lies and deception not only seen him stoop so low that Thevan contradicted his own pleaded case, but also see him desperately raising unpleaded facts. D(iii) Siva’s obvious lies and contradictions in his testimony before this Court [79] Siva’s role in the tripartite fraud came to a clear revelation especially during Siva’s thorough dismantling during cross-examination. In the same deceptive fashion, even Siva was desperately trying to delude this Court to believe that Firwas had always agreed to the price of RM40,000,000.00 stipulated under the sham SPA that Firwas had never signed. This was despite Siva’s own written WhatsApp evidence that the purchase price was for RM60,000,000.00. When examined on this admission, Siva had demeaned himself so low to the extent that he defies his own image of a ‘businessman’ in that SIVA COULD NOT EVEN (OR SIMPLY REFUSED TO) DO SIMPLE MATHEMATICS. [80] In Siva’s own WhatsApp conversation with Thevan, Siva himself expressed that he was not keen that he would end up paying RM80,000,000.00 as he had to pay an additional RM20,000,000.00 from the sale of of Siva’s PJ lands. Simple mathematics would clearly dictate that RM80,000,000.00 subtracted with the additional RM20,000,000.00 WOULD LEAVE A TOTAL OF RM60,000,000.00 AND NOT RM40,000,000.00. Thus, it was in Siva’s own written evidence that he understood clearly and undoubtedly that the purchase price was RM60,000,000.00 and not RM40,000,000.00 stipulated in the sham SPA Siva was trying to insist upon Firwas. … [81] Further unravelling Siva’s lies, Siva himself has exhibited both the Temporary Receipt TOGETHER WITH THE DATED UNDERTAKING in his Affidavit to prove his interest over the subject land in Firwas’s Application to remove Siva’s caveat (“Caveat Proceedings”). In Exhibit SK-1 of Siva’s Affidavit, Siva defined the Temporary Receipt together with the dated undertaking as “Option to Purchase”. The fact that Siva was more than willing to adopt the Dated Undertaking as the truth in his sworn Affidavit was incredibly telling that; 1) Siva had full knowledge of the 3rd tranche payment by sale of his properties and 2) Siva admits that there was a further RM20,000,000.00 that must be paid on top of the RM40,000,000.00 stipulated under the Temporary License. Thus, on the same authority of Ho Yau Hong and Boustead Trading mentioned above, this Court finds that fraudulent Siva ought to be estopped from insisting on the RM40,000,000.00 price mentioned in the sham SPA. [82] Apart from failing or refusing to do simple mathematics, Siva also went to the extent of defying plain logic and common sense. This Court was also aware that one of the ‘alternative’ narratives that Siva was concocting was that he was not ‘involved’ or ‘aware’ of Thevan’s dealing for the 3rd tranche of the RM60,000.000.00 and that this 3rd tranche payment was a personal dealing between Jasim and Thevan. Typical of fraudsters, when the house of cards falls, the fraudsters will not hesitate to throw each other under the bus. Now, Siva blamed Thevan for ‘underhanded’ dealings to earn ‘secret profit’ from the sale of the subject land. [83] However, this narrative proffered by fraudulent Siva defies plain logic and basic business acumen. This was simply because, the 3rd tranche payment negotiated was supposed to be funded FROM THE SALE OF SIVA’S OWN PROPERTIES. This very fact blew Siva’s narrative wide open for the simple reasons that: a. It does not make any logic or sense that Siva was ‘not involved’ in the 3rd tranche dealing considering the contra properties at stake were Siva’s own properties. Siva must have known and must have proposed to Thevan to put Siva’s properties as part of his bargaining chip; and b. It does not make any logic or sense that Siva would be willing sacrifice his own contra properties so as to allow Thevan to benefit from the ‘personal trade’ Thevan allegedly had with Jasim. It simply does not make any sense for Thevan to solely earn from the sale of Siva’s (NOT THEVAN’s) properties. [84] It was overwhelmingly clear to this Court the fraudulent trio, Thevan, Usha, and the 2nd Plaintiff-Siva had consistently exhibited the demeanour of an untruthful, evasive, deflective, and deceptive witnesses totally devoid of any credibility. It is trite law that oral testimonies must always be tested against contemporaneous documentary evidence tendered into Court (see Gopal Sri Ram JCA (as his Lordship then was) in the Court of Appeal case of LEE ING CHIN @ LEE TECK SENG & ORS v GAN YOOK CHIN & ANOR [2003] 2 MLJ 97): “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness' evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same. There are a number of important and leading cases in which the point has been considered [85] In the present case the fraudulent trio had obvious motives to lie and delude this Court as their respective positions were also at stake. And as this Court has demonstrated at long length above, even the fraudulent trio’s own documentary evidence was totally contradictory to the fraudulent trio’s oral testimonies. [86] And considering that the fraudulent trio for more than one occasion had brazenly lied before this Court, it is only just and proper that this Court finds that fraudulent Thevan, fraudulent Usha, and fraudulent Siva to be unreliable witnesses. (see Thompson LP in Khoon Chye Hin v Public Prosecutor [1961] MLJ 105): “If a witness demonstrably tells lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinised with great care and indeed with suspicion. E. WHETHER OR NOT SIVA CAN ‘INNOCENTLY’ RELY ON THE OSTENSIBLE AUTHORITY OF FRAUDULENT THEVAN, AND FRAUDULENT USHA TO FALSELY COMMIT FIRWAS TO THE SHAM SPA PREPARED BY USHA [87] As this Court have already deliberated at length above, there was absolutely nothing innocent about Siva in his supposed innocent reliance on the agency of his co-conspirators Thevan and Usha. Siva did not just rely on Thevan and Usha but had already went to the extent of colluding and conspiring with them as the fraudulent trio. The initial agency of Thevan and Usha (to Firwas) was not ‘relied upon’ but was menacingly abused and manipulated by Siva, Thevan, and Usha. [88] Thus, any spec of agency Thevan and Usha might have had with Firwas had effectively been eviscerated the very moment Thevan and Usha went rogue and began to turn the wheels of fraud by acting on behalf of Firwas without due authorisation and instruction by Firwas. Although generally a principal would be bound by the acts of his agents, but the same principle shall not apply when the agents had maliciously acted in excess of the agents’ scope of authority. Hence, since Thevan and Usha were both instrumental in maliciously concocting Firwas’s fraudulent acceptance of the sham SPA without Firwas’s instruction and authorisation, Firwas clearly cannot be forced to commit to the sham SPA. Even if this Court were to find that there existed an agent-principal relationship between Thevan, Usha, and Firwas, that agency had long ceased even before Usha had in bad faith ‘accepted’ the sham SPA at the instruction of Thevan. (see The decision of the Court of Appeal in Ooi Men Khin v Amanah Scotts Properties (KL) Sdn Bhd [2014] 6 MLJ 488): "[60) The applicability of the Turquand's rule is fully circumscribed, in that it is only applicable in aid of a person who deals with a company in good faith. It is a rule so prescribed to protect the innocent party doing bona fide business with a company. It has been noted that even if the party who seeks to avail himself of this rule in his favour, does not have actual knowledge that an irregularity has happened, that party will still be precluded from availing himself if the circumstances were such as to put him on inquiry he failed to make. Sometimes, the very nature of the proposed transaction may put a party on inquiry, even if he has no special relationship with the company (see, Walter Woon on Company Law (3rd Ed) at pp 80-100) (Emphasis added.) What has also become clear as well is that this: Turquand's rule does not apply in a case where forgery is involved ... " [89] In any case, it would be severely unjust if this Court were to subscribe to any rule of law to commit Firwas to the sham SPA when it was well established and proven that the sham SPA existed purely by the malicious concoction of concerted fraud by the very same co-conspirators who spearheaded the fraudulent scheme. At no point in time does this Court intend to be an instrument of fraud and give any effect on anything that was created via the fraudulent trio’s scheme. [90] Thus, this Court hereby finds that Siva cannot contend that he had innocently relied upon the agent-principal relationship between Thevan, Usha, and Firwas as the same fraudulent trio had acted in bad faith. Nothing in their conduct ever reflected even a spec of good faith. There had not been any representations made by Firwas to reasonably lead Siva into ‘believing’ that Thevan and Usha both had ‘accepted’ the sham SPA on behalf of Firwas. This was obviously clear considering that the fraudulent trio had full knowledge of the ceasing of negotiations and the prior sale to Eastern Titan well before any ‘acceptance’ took place by Firwas (which there was never any acceptance). F. WHETHER OR NOT FIRWAS WAS BOUND TO THE TERMS OF THE SHAM SPA WHICH IT HAD NEVER SIGNED OR EVER AGREED TO [91] Following this Court’s findings in the first three issues above, it should naturally and logically follow that this Court answers this fourth issue in the Negative. Firwas clearly were never bound to commit to the sham SPA that had been fraudulently concocted by the fraudulent trio, Thevan, Usha, and even Siva. [92] Breathing any life or legitimacy to any of the tripartite fraud would be a severe affront to sheer justice, the law, and equity. The fraudulent trio had sought for the long arms of the law with thoroughly soiled and dirty hands. There should be no feasible reason, factual or legal, that should incentivise this Court to enforce the sham SPA upon the innocent Firwas. This rings especially so considering the sham SPA was also prepared by a fraud who led Firwas to believe that she was a qualified lawyer. It would be profoundly wrong for this Court to allow this tripartite fraud to be perpetrated any further. [93] This Court finds guidance in Gopal Sri Ram JCA’s (as his Lordship then was) decision in the Court of Appeal case of Seri Kelangkota Rakan Engineering JV Sdn Bhd & Ors v Arab-Malaysian Prima Realty Sdn Bhd [2001] 1 MLJ in which his Lordship explained: “Parties to a transaction may disguise its true nature and purport by whatever means available to them. Yet, the court will tear away the disguise and reveal to the world at large the true arrangement arrived at between the parties. It is important for reasons of public policy that the court seised of this power. Were it not so, the law would be lending its aid to enforce pretended and not real obligations.” [94] This Court cannot sit idly by and become the wheels that put the tripartite fraud (perpetrated by the 2nd Plaintiff Siva himself with Thevan and Usha) into motion. It is the Court’s solemn duty to ensure that no fraud shall see any light of legality or enforcement and to stifle all fraud at any time of the proceedings. Suffice that this Court refers to the Federal Court decision in Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619: “It is very well settled that the courts take judicial notice of such illegality and refuse to enforce the contract, and such judicial notice may be taken at any stage, either at the court of first instance or at the appellate stage irrespective of whether illegality is pleaded or not where the contract is ex facie illegal. … In that regard, we endorse the following statement of law by the Court of Appeal per Hamid Sultan JCA, delivering the judgment of the court, in China Road & Bridge Corp & Anor v DCX Technologies Sdn Bhd and another appeal [2014] 5 MLJ 1: At the outset we must say that the trial courts must be vigilant not to provide any relief on contracts which is void on the grounds of public policy, or illegality … whether or not it is the pleaded case of the parties or whether the issue was raised during the trial” [95] There was never any binding agreement to begin with. Even if there was, the sham SPA insisted upon by the fraudulent trio was borne out of the fraudulent scheme concocted by the fraudulent trio and thus, was illegal, void ab initio and was certainly unenforceable. G. WHETHER OR NOT FRAUDULENT SIVA, FRAUDULENT THEVAN, AND FRAUDULENT USHA (AND HER FRAUDULENT FIRM) HAD ALL COLLUDED IN A CONCERTED TRI-PARTITE SCHEME TO FRAUDULENTLY FORCE FIRWAS TO COMMIT TO THE SHAM SPA [96] This Court has at long lengths deliberated on the machinations of the tripartite fraud which was perpetrated by the trio of conspirators, Thevan, Usha, and Siva. It is opportune at this juncture for this Court to be minded of the law underlying the tort of fraud, and conspiracy to defraud. Suffice that this Court refers to the case of Yap Sau Choon@Yap Bee Yong & Anor v Cheong Hong Mun & Ors [2016] MLJU 1203 (in which the High Court had aptly collated the law relating to fraud and conspiracy). The relevant portions of the precedent are reproduced here: [23] This Court lauds the learned counsel for the Plaintiffs for encapsulating and collating the law on the determining elements of the existence of a fraud. In reference to the case of CIMB Bank Bhd v Abdul Rafi a/l Abdul Rajak & Ors [2012] MLJU 884, the pertinent factors or elements in determining the existence of fraud are as follows: a. Existence of fraud is a question of fact and the range of fraud is ad infinitum per the infinite facts b. The fraud must be an actual fraud. And actual fraud is defined as: i. “dishonesty of some sort where the designed object of a transfer is to cheat a person of an existing right”; or ii. “whether by a deliberate and dishonest act, a person is deprived of his existing right” [24] It is already well settled by the recent Federal Court’s decision in the case of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 (FC) that the burden of proof for a case of civil fraud is no longer beyond reasonable doubt, but is now based on the balance of probabilities. [25] Now the learned counsel for D4 has fairly and rightfully warned this Court against supposing a finding of fraud on mere suspicion and conjecture. This Court takes heed from this warning. However, even with that said, there is no law that suggests that in the absence of a direct evidence of fraud, that this Court cannot draw an inference from all facts of the case to make a finding of a fraud. In fact, it is this Court’s ardent duty and right to take in, analyse, and draw an inference out of the facts and evidence tendered into Court. This is a case of fraud, a state of dishonest intent, thus it would be preposterous to assume that any fraudster, would out of his own volition, make it known to the world in direct evidence that he has intended to commit such fraud. This Court finds valuable guidance from the Indian Privy Council decision in the case of Satis Chandra Chatterji v Satish Kantha AIR 1923 PC 73 in which the Privy Council has held: “Charges of fraud and collusion…must, no doubt, be proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely found against him. If this were not so, many a clever and dexterous knave would escape” Referring to a decision closer to our local chapter, the English Court of Appeal in the case of Dadourian Group International Inc and other v Simms and other [2009] All ER (D) 175 (Mar) has held that: “Mr Cakebread appeared to be equating proper inferences with conjecture and assumption. At times he came close to suggesting that fraud can only be established where there is direct evidence. If that were the case, few allegations of fraud would ever come to trial. Fraudsters rarely sit down and reduce their dishonest agreement to writing. Frauds are commonly proved on the basis of inviting the fact-finder to draw proper inferences from the primary facts. That is exactly what the judge did here.” The elements and law of Conspiracy to fraud and Conspiracy to Injure [27] The elements to prove a case of a tort of conspiracy are namely: i. an agreement between two or more persons; ii. an agreement to injure the Plaintiff iii. acts done in execution of the agreement resulted in damage to the Plaintiff See SCK Group Bhd & Anor v Sunny Liew Siew Pang & Anor [2011] 4 MLJ 393 (CA); Yap JH v Tan Sri Loh Boon Siew & Ors [1991] 3 CLJ 2960 [28] With regards to the element of an ‘agreement’ it is already a well settled law that the agreement between conspirators need not even be proven by direct evidence. An agreement can be inferred from the culmination and analysis of facts so long as the facts indicate and infer a common intent and machination of fraud by the fraudsters. Such conspiracy may be derivative of an analysis of circumstantial evidence. In simpler terms, such conspiracy may be founded on an inference from facts, not necessarily an agreement per se. [29] This Court is guided by Gopal Sri Ram JCA’s (as he then was) decision on behalf of the Court of Appeal in the case of MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & Other appeals [1995] 2 MLJ 493. Gopal Sri Ram JCA (as he then was): “Conspiracy is a tort that is not always capable of proof by direct evidence. Like so many other facts, an agreement to do an unlawful act by unlawful means may be established by evidence of circumstances from which such an agreement may be inferred. It is axiomatic that there must be proof and not mere conjecture. In the present case there was sufficient evidence which conspiracy could be properly inferred” [97] To this Court’s mind, fraudsters Thevan, Usha, and Siva were all fraudsters in their own respective rights and were conspirators in a tort of conspiracy. There are four (4) salient elements that would make up the cause of action of fraud. (see Radiant Splendour Sdn Bhd & Ors v Dato’ Seri Mohd Najib bin Tun Abdul Razak & Ors [2020] MLJU 961) [110] The elements of fraud to an extent coincide with the elements of conspiracy. As per the case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi Alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn bhd [2017] 4 MLJ 697 and the case of Hock Hua Bank (Sabah) Bhd v Lam Tat Ming & Ors [1995] 4 MLJ 328, the elements to prove fraud are as follows: a. a willful act; b. with the intent to deprive another of his lawful entitlement; c. brought forth vide illegal or inequitable means; and d. had caused damage and losses [98] This Court believes that the deliberation on the facts above was more than sufficient to reveal the fraudulent designs of the fraudulent trio. Suffice that this Court briefly alludes to each of the trio’s fraudulent design. Thevan had full intention to unlawfully reap monetary gains from agency fees from his intended brokerage of Firwas’s subject land. Thevan’s fraud (and role as co-conspirator) against Firwas [99] Thevan had wilfully acted on his own accord to abuse the personal relations he shared with Irene and Jasim. He had introduced Firwas to the fraudulent Usha with full knowledge that fraudulent Usha was not a qualified lawyer and was a fraudulent knave who had a knack for lies and deception. Thevan had full knowledge of the failure and ceasing of negotiations. Thevan also had full knowledge of the sale of the subject land to Eastern Titan. Despite knowing of these truths, Thevan perpetrated an insidious deceit to force Firwas to suffer losses by falsely committing Firwas to the sham SPA. Thevan had done so by deceitfully and fraudulently instructing Usha to ‘accept’ the sham SPA on behalf of Firwas despite having clear confirmation of failure of negotiation and full knowledge of the prior sale to Eastern Titan. Thevan instructed as such despite knowing that he had no instructions whatsoever by Firwas to proceed with the sham SPA. Thevan then lied before this Court insisting that the purchase price for the subject land was for RM40,000,000 despite his own documentary admission that the negotiated price was RM60,000,000.00. Usha’s fraud (and role as co-conspirator) against Firwas [100] Usha had wilfully acted on her own accord to abuse the trust placed by Firwas on her as a fiduciary. She had gained Firwas’s trust by deceitful means and misrepresenting her qualification as a lawyer (which in truth were all blatant lies and forgeries). Usha had full knowledge that she was fraudulently practicing as a lawyer and had abused the legal qualifications of other qualified lawyers as a disguise to conceal her fraudulent practice. Throughout Usha’s fraudulent service to Firwas, Usha had consistently refused to honestly reflect the RM60,000,000.00 purchase price in any of her draft sham SPAs despite being instructed time and time again to amend her draft sham SPAs by Firwas. [101] Usha had full knowledge of the failure and ceasing of negotiations and had by her own written email confirmed the abortion of negotiations with Siva. Usha also had full knowledge of the sale of the subject land to Eastern Titan. Despite knowing of these truths, Usha perpetrated an insidious deceit to force Firwas to suffer losses by falsely committing Firwas to the sham SPA that she prepared. Usha had done so by deceitfully and fraudulently following Thevan’s instruction to ‘accept’ the sham SPA on behalf of Firwas despite having clear confirmation of failure of negotiation and full knowledge of the sale to Eastern Titan. Usha had followed Thevan’s instruction despite knowing that she had no instructions whatsoever by Firwas to proceed with the sham SPA. Usha then deceitfully informed Siva’s lawyer that Firwas had approved her sham SPA despite having full knowledge that Firwas had rejected all of her draft sham SPAs. [102] Usha had also admitted to committing forgery and perjury by falsifying her firm’s bank account statement to reflect the supposed RM4,800,000.00 further deposit paid by Siva under the sham SPA. Usha had actively conducted herself in brazen deceit to ensure that Firwas was fraudulently forced to commit to the sham SPA even after she knew that Firwas had already aborted all dealings with Siva. Siva’s fraud (and role as co-conspirator) against Firwas [103] Siva had wilfully acted on his own accord to abuse the former agent-principal relations between Firwas (as principal), Thevan, and Usha (as fraudulent agents). Siva had lied before this Court and had attempted to feign innocence that he had no knowledge of the sale to Eastern Titan before signing the sham SPA prepared by Usha. In truth, Siva had full knowledge of the prior sale of the subject land to Eastern Titan. Despite knowing of these truths, Siva perpetrated an insidious fraud to force Firwas to suffer losses by falsely committing Firwas to the sham SPA. Siva had done so by deceitfully and fraudulently signing the sham SPA despite having clear confirmation of failure of negotiation and having full knowledge of the prior sale to Eastern Titan. Siva had attempted to feign innocence despite clear evidences that Siva had had close and direct communications with both fraudulent Thevan, and fraudulent Usha. [104] Siva then lied before this Court insisting that the purchase price for the subject land was for RM40,000,000.00 despite his own documentary admission (and sworn Affidavit) that the negotiated price was RM60,000,000.00. Siva further cemented his fraud by wrongfully lodging his caveat upon the subject land despite having full knowledge that his supposed ‘interest’ upon the subject land was a sham concocted vide the tripartite fraud. [105] From the above, it was apparent to this Court that the fraudulent trio Thevan, Usha, and Siva had committed fraud of their own respective brand and make. Acting as individuals they were clearly fraudsters. On the other hand, as co-conspirators acting in concert with each other, it was also sublimely apparent to this Court that each of the fraudulent trio played their respective roles in order to realize their common conspiracy to defraud Firwas (in falsely forcing Firwas to commit to the sham SPA Firwas had never agreed to or even signed). As a result of their common conspiracy, Firwas had suffered grave losses as they run the risk of losing the subject land at a RM20,000,000.00 loss, or at the very least incur massive losses in payment delays as Firwas was hindered from properly performing its bargain in Firwas’s Agreement with Eastern Titan. [106] The aforementioned considered, this Court hereby finds that the 2nd Plaintiff-Siva, fraudulent Thevan, and fraudulent Usha had all committed the tort of fraud and were also complicit in the conspiracy to defraud Firwas. H. DECISION ON THE PLAINTIFFS’ SHAM MAIN CLAIM AND THEVAN’S FRAUDULENT COUNTER-CLAIM [107] All of the aforementioned findings and deliberations in extenso considered, this Court hereby DISMISSES THE PLAINTIFFS’ SHAM MAIN CLAIM (SIVA’S CLAIM). This Court also finds that Thevan’s counter-claim was also a total sham and hereby DISMISSES THEVAN’S SHAM COUNTER-CLAIM. I. DECISION ON FIRWAS’S COUNTER-CLAIM FOR DAMAGES AND REMOVAL OF SIVA’S WRONGFUL CAVEAT [108] It was plain and obvious to this Court that Siva’s wrongful lodgement of his caveat was part and parcel of the tripartite fraud concocted by the fraudulent trio (including Siva). It is altogether obvious to see that the lodgement of the caveat was done in overt bad faith to unlawfully deprive Firwas of its ardent right to deal with the subject land as it sees fit. It is a statutory feature within section 329 of the National Land Code 1950 that any party who had wrongfully entered a caveat upon a land “SHALL BE LIABLE TO PAY COMPENSATION”. [109] As to the measure of damages payable by Siva, this Court finds that the foreseeable loss was clearly the years of deprivation of the balance purchase price by Eastern Titan that was hindered by Siva’s (and the fraudulent trio’s) fraud. This was especially foreseeable considering Thevan, Usha, and even Siva all had full prior knowledge of the sale of the subject land to Eastern Titan. It is trite that delays in payment of the balance purchase price would indeed cause the deprivation of use or opportunity to use the balance purchase price which have already fallen due but-for Siva’s fraud and conspiracy. If not for Siva’s fraud and conspiracy, the balance purchase price would have been fully paid to Firwas more than 3 years ago. Thereby, at the very base level of commercial earnings, Firwas was deprived of the opportunity to earn interest on the RM52,200,000.00 for more than 3 years. This would be the lowest foreseeable denominator of opportunity loss caused by Siva’s fraudulent hindrance. Thus, if there were no other proof or evidence of a higher denominator of loss, it shall only be appropriate that this Court to at the very least award damages to Firwas for its loss of opportunity to earn interest on the balance purchase price. (see MD Biomedical Engineering (M) Sdn Bhd v Goh Yong Khai [2021] 5 MLJ 408 (CA) ; Mah Siew Seng & Anor (both as administrators of the estate of Mah Khin Kee (the deceased)) v Seema Development Sdn Bhd [2014] 7 MLJ 372 ; Ting Sieh Chung v Hock Peng Realty Sdn Bhd) [110] The precedents by and large indicated that an interest of 8% per annum was the industry standard for deprivation of the opportunity to earn interest on sums of which payment had been delayed. At least in the present case, witnesses from Eastern Titan, Firwas, AND SIVA HIMSELF all agreed that the industry standard measure for damages for deprivation of use of monies was 8% per annum. Siva himself had testified during cross-examination that in another case he was embroiled in for his property in the Mines, that the rate of 8% per annum is “normally used” in measuring damages for delayed payments. Adding further propriety to the rate of 8% per annum, was the fact that clause 4.2 of the sham SPA that Siva himself had attempted to force upon Firwas also stipulated a rate of 8% per annum for delayed payments. This certainly reflects the commonly agreed standard interest rate applicable for delayed payments (at the very least within this case) to be 8 % per annum. [111] Firwas had earnestly informed this Court that had the sale with Eastern Titan went undisturbed by Siva and his co-conspirators, Eastern Titan would have to contractually settle the entire purchase price by 22.9.2020 (“accrual date”) [112] Thus, this Court hereby awards damages (“Judgment Sum”) to Firwas calculable or assessable in the following manner: Rate of 8% per annum x RM52,200,000.00 for the entire period from the accrual date (22.9.2020) until one (1) month after the full removal of Siva’s wrongful caveat = (“Judgment Sum”) [113] This Court is minded that it cannot extend the interest period to the time of full settlement by Eastern Titan, as the payment from Eastern Titan was beyond Siva’s control. On the other hand, the removal of Siva’s wrongful caveat is well within Siva’s control. Thus, the cut off time for the interest period shall reasonably be one month after the removal of Siva’s wrongful caveat. This is especially so considering Eastern Titan’s contractual deadline for full settlement was 22.9.2020 and thus, Eastern Titan should presumably be able to fully settle the balance purchase price soon after the removal of Siva’s wrongful caveat. [114] Hypothetically or notionally speaking, if Siva was able to remove his caveat on 31.12.2023, then the interest period from the accrual date until the notional cut-off date (being 31.1.2024) would be 3 years 4 months and 9 days. The rate of 8% per annum upon RM52,200,000.00 would be RM4,176,000.00 per year (RM348,000.00 per month OR RM11,441.10 per day). Thus, the total notional general damages payable would be RM11,441.10 x 3 years 3 months and 9 days (or 1226 days) amounting to RM14,026,783.56. This would be the sum of general damages payable by Siva in the circumstance that Siva removes his wrongful caveat by 31.12.2023. The amount should accordingly increase following the actual interest period that ran between the accrual date and the cut-off date. I(i) Thevan’s joint liability as fraudulent co-conspirator [115] Accordingly, as the wrongful entry of the caveat was only one part of the entire fraudulent conspiracy concocted by Thevan, Usha, and Siva, Thevan shall also be jointly and severally liable to pay the same Judgment Sum (as calculable above). [116] It is trite law that co-conspirators within a conspiracy are considered to be joint tortfeasors and thus each of the conspirator shall be jointly and severally liable to the fraud and conspiracy. Suffice that this Court refers to the Court of Appeal decision in Lai Soon Onn v Chew Fei Meng and other appeals [2019] 2 MLJ 96: [68] It is trite law that where there are two or more persons liable for the tort of conspiracy, and where the liability of each person is joint and several, a plaintiff is entitled to sue whomsoever that he wishes (see the Court of Appeal of Singapore case of Chan Kern Miang v Kea Resources Pte Ltd [1998] 2 SLR (R) 85 at p 91). This is fortified by O 15 r 4(3) of the Rules of Court 2012 which states: Where relief is claimed in an action against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the action; but where persons are jointly, but not severally, liable under a contract and relief is claimed against some but not all of those persons in action in respect of that contract, the court may, on the application of any defendant to the action, by order stay the proceedings in the action until the other persons so liable are added as defendants. I(ii) Thevan’s and Shoba’s liability for breach of fiduciary duty [117] In the alternative, if this Court were wrong on its endeavour into the law of fraud and conspiracy, it would still remain resoundingly clear that the same facts and mechanism of fraud and conspiracy deliberated above ALSO SUFFICIENTLY PROVES FIRWAS’S PLEADED CASE OF BREACH OF FIDUCIARY DUTY. [118] In truth, apart from Thevan and Shoba (who were made parties in Firwas’s counter-claim) it was astoundingly obvious to this Court that USHA WAS ALSO CENTRAL TO THE FRAUD AND CONSPIRACY. Usha was also the appointed fiduciary of Firwas when Firwas was fraudulently misrepresented of Usha’s forged qualifications as a lawyer. Had Usha been made a party to the present case, this Court would have had the discretion and authority to direct that fraudulent Usha to be jointly and severally liable to the fraud and conspiracy, and at the very least be liable for the breach of her fiduciary duty owed to Firwas. Despite the fact that Usha was a fraudulent unqualified lawyer, Firwas had appointed Usha in the misrepresented belief that Usha was a qualified lawyer. Thus, notwithstanding Usha’s clearly forged qualifications, Usha still stood as a person in a fiduciary position to Firwas. [119] Unfortunately, before this Court, Usha was not made a party to the Main Suit or Firwas’s counter-claim. Nonetheless, considering Usha’s glaring complicity and involvement in the fraud (and breach of fiduciary duty), it would be severely remiss if this Court does not take judicial notice that Usha was indeed involved in the fraud and conspiracy, and had clearly breached the fiduciary duties she owed against Firwas. Although this Court’s hands are tied and cannot attach liability to Usha in the present case, this Court shall leave it to Firwas’s ingenuity and discretion to pursue an action against Usha in light of this Court’s findings in the present case. [120] Notwithstanding, it was resolutely clear that Thevan (as Firwas’s fraudulent property agent), and Shoba (as Partner of Usha’s fraudulent firm) all were in the position of a fiduciary to Firwas. They were in the position to safeguard Firwas’s interest and to ensure that they act in the best interest and benefit of Firwas from the sale of the subject land. (see Bristol and West Building Society v Mothew [1998] Ch 1; Solid Investments Ltd v Alcatel-Lucent (M) Sdn Bhd (previously known as Alcatel Network Systems (M) Sdn Bhd) [2014] 3 MLJ 785: “A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. [121] Fraudulent Thevan had undertaken to act on behalf of Firwas as a property agent. Firwas had appointed Thevan in trust and confidence that Thevan would act in good faith to the best interest of Firwas. But it is sublimely apparent (as this Court had unravelled at length) that Thevan had committed fraud of his own design, and was complicit in the tripartite conspiracy to defraud in order to reap monetary gains (in agency fees) from the fraudulent sale of the subject land to Siva. [122] Shoba on the other hand, although having minimal involvement in the tripartite fraud, Shoba was still the partner of Usha’s fraudulent firm at the material time the tripartite fraud all took place. Although it was unfortunate that the true fraudster Usha was not made party to the present case, the fact remained that Shoba as partner of Usha’s fraudulent firm shall still be liable to the fraud and conspiracy that was perpetuated vide the fraudulent firm as a whole. [123] This Court is cognizant of the fact that Shoba perhaps might only have minimal involvement in the tripartite fraud or conspiracy. However, the law is resolute that Usha’s fraudulent firm as a whole owed a fiduciary duty to Firwas. And as a partner of Usha’s fraudulent firm (specifically at the material time of the tripartite fraud) Shoba shares the same liability as the firm notwithstanding the fact that a majority of the tripartite fraud was perpetuated by Usha. [124] In any case, this case would serve as a keen reminder to the legal fraternity so as to not undertake the position and liability as a Partner in a firm lightly. It has always been trite law that Partners in a firm share joint and several liability of the firm notwithstanding the fact that the firm’s liability might have been incurred by another Partner within the firm. To be hailed as a legal firm’s partner is not just a matter of prestige or accolade, but a serious and real matter of responsibility, liability, accountability, and most pertinently integrity. A Partner is expected to be reasonably aware of the firm’s affairs as a whole as all the partners’ liability are on the line. [125] Most relevant to Shoba’s personal liability as partner would be Section 12 of the Partnership Act 1961. The section reads: “12. Liability of firm for wrongs Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm or with the authority of his co-partners, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act. [126] In view of the provision above, Shoba would be liable in the following manners: a. Firstly, Shoba had by her own volition knowingly held out or allowed Usha to be held out as a lawyer in Usha’s fraudulent firm despite having full knowledge that Usha was an unqualified person; b. Secondly, Shoba had also by her own volition wrongfully allow herself to enable the fraudulent manner in which Usha had conducted her illegal ‘practice’ as an unqualified lawyer. Even if Shoba had no idea whatsoever of Usha’s forged qualifications, Shoba had omitted to conduct proper due diligence to verify and investigate the obviously peculiar manner in which the fraudulent firm was primarily run, owned, and managed by fraudulent Usha; and c. Thus, independent from Usha’s role in the tripartite fraud, Shoba also had her own set of wrongs she had both committed and omitted in the ordinary course of the fraudulent firm’s business. [127] Meanwhile, it would be wrong for this Court to assume that Shoba can be left unscathed merely because Usha was not a partner in Usha’s fraudulent firm. It must be reminded that Partners are not only bound to the act of other co-partners as agents to one another under section 7 of the Partnership Act 1961. Partners are also bound to the acts (executed in the name of the firm) of any person authorised by the firm even if that person was not a partner in the firm (see Section 8 of the Partnership Act 1961): “8. Partners bound by acts on behalf of firm

The critical requirement before an indemnity order can be made in the successful defendant's favour is that there must be some conduct or some circumstance which takes the case out of the norm.

Insofar as the conduct of the unsuccessful claimant is relied on as a ground for ordering indemnity costs, the test is not conduct attracting moral condemnation, which is an a fortiori ground, but rather unreasonableness.

The court can and should have regard to the conduct of an unsuccessful claimant during the proceedings, both before and during the trial, as well as whether it was reasonable for the claimant to raise and pursue particular allegations and the manner in which the claimant pursued its case and its allegations.

Where a claim is speculative, weak, opportunistic or thin, a claimant who chooses to pursue it is taking a high risk and can expect to pay indemnity costs if it fails.

A fortiori, where the claim includes allegation of dishonesty, let alone allegations of conduct meriting an award to the claimant of exemplary damages, and those allegations are pursued aggressively inter alia by hostile cross-examination.

Where the unsuccessful allegations are the subject of extensive publicity, especially where it has been courted by the unsuccessful claimant, that is a further ground.

The following circumstances take a case out of the norm and justify an order for indemnity costs, particularly when taken in combination with the fact that a defendant has discontinued only at a very late stage in proceedings:

where the claimant advances and aggressively pursues serious and wide-ranging allegations of dishonesty or impropriety over an extended period of time;

where the claimant advances and aggressively pursues such allegations, despite the lack of any foundation in the documentary evidence for those allegations, and maintains the allegations, without apology, to the bitter end;

where the claimant actively seeks to court publicity for its serious allegations both before and during the trial in the international, and national and local media;

where the claimant, by its conduct, turns a case into an unprecedented factual inquiry by the pursuit of an unjustified case;

where the claimant pursues a claim which is, to put it most charitably, thin and, in some respects, far-fetched;

where the claimant pursues a claim which is irreconcilable with the contemporaneous documents;

where a claimant commences and pursues large-scale and expensive litigation in circumstances calculated to exert commercial pressure on a defendant, and during the course of the trial of the action, the claimant resorts to advancing a constantly changing case in order to justify the allegations which it has made, only then to suffer a resounding defeat.” [138] Closer to home, this Court refers to the Federal Court decision in Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2) [2010] 2 MLJ 181 [8] Some of the guidelines for an award of indemnity costs were discussed by Millett J (later Lord Millett) in Macmillan Inc v Bishopsgate Investment Trust plc and others (No 3) [1995] 3 All ER 747: “The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion as to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fettered or circumscribed beyond the requirement that taxation on an indemnity basis must be 'appropriate'. [9] What appears clear is that the discretion to award costs on an indemnity basis is unfettered. All that is required is that it must be an appropriate case warranting an award on that basis. There is no doubt that in this case, the second respondent conducted its case in bad faith. Its directing mind and will — indeed its alter ego — was the first respondent's common law husband. In essence he was the company. Both he and the first respondent set themselves upon a course to unlawfully deprive the appellant of her legitimate interest in the subject property.” [139] The above considered, this Court hereby orders Costs as follows: a. In dismissing Siva’s sham Main Suit, this Court hereby orders Costs on an indemnity basis to the benefit of Firwas to be paid by Siva and Ammsa Property Sdn Bhd to Firwas; b. In dismissing Thevan’s sham counter-claim, this Court hereby orders Costs on an indemnity basis to the benefit of Firwas to be paid by Thevan to Firwas and Jasim; and c. In allowing Firwas’s counter-claim, this Court hereby orders Costs on an indemnity basis to the benefit of Firwas, to be jointly and severally paid by Siva, Ammsa Property Sdn Bhd, Thevan, and Shoba (as partner of Usha’s fraudulent firm – Chambers of Rahimi Ibrahim & Co formerly known as Messrs Faidzol Rahimi & Partners). K. THIS COURT’S ORDERS AND DECLARATIONS ACROSS SIVA’S SHAM MAIN CLAIM, THEVAN’S SHAM COUNTERCLAIM AND FIRWAS’S COUNTER-CLAIM [140] For ease of reference, this Court recapitulates this Court’s core findings, orders and declarations in the following manners below. [141] As for Siva’s sham Main Claim and Thevan’s sham counter-claim, as this Court has already decided above, this Court hereby dismisses Siva’s sham Main Claim and Thevan’s sham counter-claim with costs on an indemnity basis as per the order for costs mentioned above in Part J of this Judgment. [142] As for Firwas’s Counterclaim, this Court hereby allows Firwas’s counter-claim and accordingly declares and orders the following: a. This Court declares that there has never been any agreement entered into by Firwas or Siva to sell the subject land to Siva; b. This Court declares that the sham SPA that Usha had prepared and wrongfully accepted by Usha and Siva to be illegal, fraudulent, void ab initio and was clearly unenforceable; c. This Court declares that Firwas was well within its indefeasible rights to sell the subject land to Eastern Titan; d. This Court finds that Thevan and Usha (as partner of Usha’s fraudulent firm) had indeed breached their fiduciary duties owed to Firwas; e. This Court finds that Thevan, Siva, and Shoba (as partner of Usha’s fraudulent firm) had indeed perpetrated their own respective fraud and colluded in a collective tripartite conspiracy to defraud Firwas; f. Considering that Usha was also central to the tripartite conspiracy to defraud but was not made a party within these proceedings, this Court can only leave it to the ingenuity and discretion of Firwas to pursue an action against Usha in light of this Court’s findings; g. This Court orders that Siva’s caveat be removed forthwith within fourteen (14) days of this Court’s order; h. This Court orders that Siva is liable to pay general damages (Judgment Sum) for wrongful entry of his caveat assessed at the rate of 8% per annum x RM52,200,000.00 for the entire period from the accrual date (22.9.2020) until fourteen (14) days after the full removal of Siva’s wrongful caveat (as this Court had earlier mentioned above); i. This Court also orders that Siva is liable to pay exemplary and aggravated damages of RM100,000.00 to Firwas; j. This Court also orders that both Thevan and Shoba (as partner of Usha’s fraudulent firm) to be jointly and severally liable to the general damages (Judgment Sum) in sub para (h) above that Siva is liable to pay to Firwas; k. This Court also orders that both Thevan and Shoba are respectively liable to pay RM100,000.00 each in exemplary and aggravated damages to Firwas; l. In allowing Firwas’s counterclaim, this Court further orders Costs on an indemnity basis to the benefit of Firwas, to be jointly and severally paid by Siva, Ammsa Property Sdn Bhd, Thevan, and Shoba (as partner of Usha’s fraudulent firm – Chambers of Rahimi Ibrahim & Co formerly known as Messrs Faidzol Rahimi & Partners); and m. This Court also orders interest of 4% on the Judgment Sum in sub-paras

and (j) and the exemplary and aggravated damages in sub-para (i) and (k) awarded from the date of this Court Order until full settlement of all the sums awarded. [143] On an ancillary note, this Court shall briefly allude on the position of the RM1,200,000.00 in earnest deposit held by Thevan and the RM4,800,000.00 allegedly paid and held by Usha’s fraudulent firm. [144] As to the legal ownership of the RM1,200,000.00 earnest deposit paid to Thevan, this Court finds that essentially the earnest deposit must be returned to Siva as there was no agreement concluded between Firwas and Siva. Thevan has no rights at all to claim for any damages owing to his dirtied hands stained by his core complicity in the conspiracy to defraud. In any case, since Siva had been found to be liable to compensate Firwas for its losses, this Court accordingly orders that this sum held by Thevan be directly paid to Firwas to partially settle Siva’s Judgment Debt owed to Firwas. [145] As to the legal ownership and alleged dissipation of the RM4,800,000.00 of the alleged further deposit held by the fraudulent firm, this Court in essence finds that this sum is only relevant between Siva and the fraudulent firm. In truth, this Court must remark on the peculiar and dubious circumstances surrounding the alleged payment of the RM4,800,000.00 sum. It was readily admitted by Usha that the fraudulent firm’s bank statement was fraudulently perjured and forged to reflect the payment of the RM4,800,000.00 although there was not a single cent of the sum within the firm’s account. Even more peculiar would be Siva’s perplexing disinterest to pursue, investigate, and trace his monies allegedly held by the fraudulent firm. Nonetheless, Siva did not claim for the return of the RM4,800,000.00 from the fraudulent firm in his Main Suit. Thus, this Court shall not endeavour to make any finding or orders as to the legal position of the RM4,800,000.00 allegedly held by Usha’s fraudulent firm. It is up to Siva to pursue this sum directly against the fraudulent firm or Usha (if Siva can prove that there was indeed such payment made to Usha’s fraudulent firm). [146] Lastly, it would be severely remiss if this Court were to ignore the glaring illegality that is the fraudulent manner in which Usha is rendering fraudulent legal services by manipulating and abusing other qualified lawyer’s license FIRWAS’S COUNTER-CLAIM For the Plaintiff - Messrs. Shaikh David & Co. Dato’ David Morais, Miss Pavitra Pillai, Miss Sarah Jailany & Miss Ellia Fatanah For the 1st & 2nd Defendants - Messrs. Rose Hussain Mr. Selva Kumaran For the 3rd Defendant - Messrs. Mastura Partnership Mr. Sivabalan & Mr. Goh Wan Ping For the 4th Defendant - Messrs. Dinesh Praveen Nair Mr. Dinesh Praveen Nair THEVANDRAN’S COUNTER-CLAIM For the Plaintiff - Messrs. Mastura Partnership Sivabalan & Mr. Goh Wan Ping For the 1st & 2nd Defendants - Messrs. Shaikh David & Co. Dato’ David Morais, Miss Pavitra Pillai,