Suresh A/L Dorasamy v Partiban A/L Dorasamy (JA-24NCvC-135-01/2026)

SURESH A/L DORASAMY [NRIC NO. : 790717-01-5373]

KAYTRE A/P DORASAMY [NRIC NO. : 911213-01-5482] …APPLICANTS

PARTIBAN A/L DORASAMY [NRIC NO. : 830915-01-6733]

KAYTRI SERVICES SDN. BHD. [COMPANY NO. : 200501030767/712904-W]

KAYTRI SERVICES [REGISTRATION NO. : 199303044527 (JM0195464-U)] …RESPONDENTS GROUNDS OF JUDGMENT (Enclosure 4 - Application for Mareva Injunction and Ancillary Relief)

Before me is the Applicants’ Amended Originating Summons in Enclosure 4, by which the Applicants seek a Mareva injunction against the 1st Respondent in respect of the assets of the 2nd Respondent company and the 3rd Respondent partnership, together with ancillary orders for disclosure of assets, the appointment of an independent auditor, and the production of financial records.

It is pertinent to highlight that the Amended Originating Summons, as drawn, names Partiban a/l Dorasamy both as the 3rd Applicant and as the 1st Respondent. I observed that nothing turns on this. The substantive Applicants in every cause papers filed after the Amended Originating Summons (Enclosures 2, 6, 9, 10, 12, 14, 16 and 17) are only Suresh (“P1”) and Kaytre (“P2”). The naming of Partiban also as the 3rd Applicant appears to be a residual drafting artefact carried over from earlier proceedings and is, in any event, curable under Order 15 Rule 6 and Order 1A of the Rules of Court 2012. I proceed on the substance.

Having considered the cause papers, the written submissions and the bundles of authorities of both sides, I now deliver my decision together with the grounds for it.

The 2nd Respondent ("R2") is a private limited company incorporated on 17.10.2005. The 3rd Respondent ("R3") is a registered partnership of 1993. Both entities were founded by Dorasamy a/l Nalaya ("Dorasamy"), the father of P1, P2 and the 1st Respondent ("R1") and operate from common premises in Pasir Gudang.

In June 2015, Dorasamy was rendered mentally incapacitated by a road traffic accident. By Order dated 12.01.2016 under the Mental Disorders Ordinance 1952, P1, the late Saraswathy a/p Karuppan ("Saraswathy") and R1 were appointed Committee for Dorasamy. P1 resigned his R2 directorship on 27.11.2018 voluntarily on R1's case, under family pressure on P1's case. Saraswathy died on 22.02.2022, since when R1 has been the sole director of R2.

On 16.04.2023, P1 and R1 executed a written agreement before solicitor Ranjeet Singh ("the 16.04.2023 Agreement", Exhibit PD-6 to Enclosure 9). Its execution is admitted though P1 alleges duress and undue influence. On R1's own pleading at Enclosure 9 paragraph 14, the Agreement principally divides management of Dorasamy's titled real properties between P1 and R1 and only one sub-clause addresses R2 and R3.

On 23.10.2023, P1 conducted an SSM search and discovered that the original 25 per cent shareholding in R2 had been altered. R1 had become the majority shareholder with shares valued at RM587,498, Saraswathy held shares of RM287,500 and P1 and Dorasamy held RM62,501.00 each. P1 says he had no notice and gave no consent.

Two earlier proceedings are material to the chronology. First, in Originating Summons No. : JA-31NCvC-700-06/2024, made orders for Letters of Administration to be obtained in respect of the estate of Saraswathy. Second, in Originating Summons No. : JA-24NCvC- 683-05/2024, the Court on 11.03.2026 set aside the 12.01.2016 Order, declared Dorasamy a mentally disordered person under the Mental Health Act 2001 [Act 615] and appointed P1, P2 and R1 jointly as Committee with express power over Dorasamy's interests as director and shareholder in R2 and as partner in R3. The Applicants have appealed against that 11.03.2026 Order by Notice of Appeal dated 09.04.2026. The present application was filed on 23.01.2026.

R1 resists the application on six grounds –

non-compliance with Order 7 Rule 3(1) of the Rules of Court 2012, and absence of an underlying cause of action;

reliance on inadmissible hearsay in the Applicants' affidavits;

failure to satisfy the three-limb test for a Mareva injunction;

inordinate and unexplained delay;

the indefiniteness of the duration sought; and

the 16.04.2023 Agreement which, R1 says, authorises his management.

The Applicants take a procedural objection that grounds (b) and (d) were not pleaded in R1's Affidavit Jawapan (Enclosure 9). I deal with each in turn.

Order 7 Rule 3(1) Rules of Court 2012

R1 relies on Saraswathy Devi a/p Nadchatiram v Vijayalakshmi Devi a/p Nadchatiram [1998] 1 MLJ 89 and Malayan Banking Berhad v Sri Datai Engineering Sdn Bhd [2006] 7 MLJ 171 for the Order 7 Rule 3(1) Rules of Court 2012 objection and on Lee Kai Wuen & Anor v Lee Yee Wuen [2022] MLJU 3411, Mohd Azizi bin Abu Naim v Tan Sri Dato’ Haji Mahiaddin bin Md Yasin [in his capacity as the President of Malaysian United Indigenous Party (BERSATU)] & Ors [2024] 12 MLJ 1 and Ter Thian Tin v Ter Wei Hong & Ors [2021] MLJU 122 for the proposition that an injunction must be anchored to a cause of action and that the Court will not act in vain. The principles are not in doubt. They do not, however, assist R1 on these facts.

The Amended Originating Summons identifies the statutory provisions relied upon, including –

sections 208, 209, 213, 214, 218, 223, 228, 346(1) and 351 of the Companies Act 2016 [Act 777];

(ii) sections 22 to 36 of the Partnership Act 1961 [Act 135];

(iii) section 53 of the Specific Relief Act 1950 [Act 137];

(iv) Order 29 Rule 1 of the Rules of Court 2012 (“ROC 2012”); and

the inherent jurisdiction.

The Affidavit in Support sets out the factual matrix. R1 has plainly understood the case made against him, as the comprehensiveness of Enclosure 9 makes clear. Any residual irregularity is curable under Order 1A and Order 2 ROC 2012.

As to the "legal vacuum" point, I observed that the Mareva Injunction is not the sole relief. The substantive prayers, namely independent audit and document production and ancillary disclosure, are themselves referable to the breaches of directors' duties under section 213 of Act 777, the oppression remedy under section 346(1), and the partner-to-partner duties under Act 135 pleaded in the Amended Originating Summons. The Mareva is the interim preservation measure ancillary to those substantive reliefs. Accordingly, the objection is overruled.

Hearsay

R1 impugns paragraphs 13, 17, 18, 21, 22, 23, 25, 27, 28 and 30 of Enclosure 2 and paragraphs 8.2(d), 33(e), 33(f), 44, 45 and 75 of Enclosure 10, relying on Dynacast (S) Pte Ltd v Lim Meng Siang & Ors [1989] 3 MLJ 456 and AmInvestment Bank Bhd v Nep Holdings (M) Bhd [2014] 8 MLJ 271, for the well-known proposition under Order 41 Rule 5(2) ROC 2012 that statements of information and belief have probative value only where the source and grounds are revealed.

The Applicants raise a procedural objection that R1 did not plead the hearsay challenge in Enclosure 9 and is bound by his pleaded case. I do not accept that procedural objection. Whether an affidavit complies with Order 41 Rule 5(2) ROC 2012 goes to the admissibility and weight of the evidence on which the application stands. It is a matter that may be raised in submissions and need not be flagged on responding affidavit.

On the merits, the impugned paragraphs are of varied quality. Paragraph 25 of Enclosure 2 expressly attributes its information to an employee of R2 or R3. The class of source is identified, even if the individual is not named. Paragraph 8.2(d) of Enclosure 10 attributes information to the late Saraswathy and is hearsay in its purest form, compounded by the fact that the source is deceased. I place no weight on it. The remaining impugned paragraphs are a mixed bag. Rather than embarking on a paragraph-by-paragraph expungement on a point that R1 has not put before me by formal application under Order 41 Rule 6 ROC 2012, I have given the impugned paragraphs such weight, if any, as they properly bear and have rested my conclusions principally on the documentary material, including Exhibits SD-1, SD-5, SD-6, SD-8 and SD-9, which is admissible without question.

The Three-Limb Test

The three-limb test for a Mareva injunction is settled by Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra Malaysia Bhd & Anor [1988] 1 MLJ 97 and Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153. The applicant must show a good arguable case, assets within jurisdiction, and a real risk of dissipation.

The good-arguable-case threshold is not high. The real-risk inquiry is objective and asks whether a sensible commercial person would infer a real danger that judgment would go unsatisfied [see : Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [1999] 4 MLJ 217 and Etihad Consultancy & Ors v Alphacapital (M) Bhd [2025] MLJU 1184]. Past conduct is admissible on the risk inquiry [see : Biasamas Sdn Bhd & Ors v. Kan Yan Heng & Anor [1998] 4 CLJ 754]. It is also established that fear of dissipation is not the same as real risk, and the evidence must be solid. Good arguable case

I observed that three matters bring this case comfortably over the threshold. First, R2 has, since Saraswathy's death in February 2022, been operated with R1 as sole director, with no internal check on his exercise of management authority over a company in which P1 remains a shareholder. Therefore, the Applicants' pleaded grounds under sections 206, 208, 213 and 346(1) of Act 777 are arguable.

Secondly, the audited financial statements of R2 for 2021 and 2022 (Exhibit SD-6) bear what purports to be the signature of Dorasamy, who has been mentally incapacitated since 2015 (Exhibit SD-5). R1's answer at paragraph 32 of Enclosure 9 is that the signature was placed on the auditor's advice for statutory compliance and was not on LHDN documents themselves. In my considered view, that is not a complete answer. A person incapable of managing his own affairs cannot in law give valid consent to such a signing on his behalf.

Thirdly, R1 incorporated KS Transways Sdn. Bhd. in 2020 and remains its director. R1 deposes at paragraph 40 of Enclosure 9 that the company is "masih tidak aktif sehingga kini". However, the Applicants' SSM search (Exhibit SD-8) shows it as "existing". The inconsistency grounds a good arguable case that R1 has incorporated and maintains a separate corporate vehicle to which the assets and proceeds of R2 and R3 may have been routed.

I add that, on a proper reading of section 35(1) of Act 135, the death of Saraswathy in February 2022 may have operated, absent contrary agreement, to dissolve the R3 partnership. R1 has pleaded no contrary agreement. I do not decide that point today. I note it as part of the good-arguable-case picture in respect of R1's continued unilateral management of R3. Assets within jurisdiction

I found that the machinery, vehicles, plant and bank accounts of R2 and R3 are within the jurisdiction. Therefore, this limb is not contested. Real risk of dissipation

I further observed that R1 treats this limb as if it required proof of imminent or ongoing dissipation supported by bank records and transfer slips. However, that is not the law. The question is objective, i.e. would a sensible commercial person, on the totality of the material, apprehend a real risk that judgment would go unsatisfied? Based on the present material, the answer is yes.

The Applicants' apprehension is pleaded in paragraph 31 of Enclosure 2 and anchored in the past conduct described at paragraphs 21 to 30, including the disposal of seven specific items of machinery and vehicles (identified by registration number in paragraph 25), the routing of proceeds to R1's personal accounts or KS Transways, the alteration of the R2 shareholding without P1's knowledge and the apparent signing of audited statements in Dorasamy's name. Given R1's structural position as sole director and R3 operating from the same premises, I found no internal check on further dealings of a similar nature.

R1's principal answer was that the 16.04.2023 Agreement authorises his management. It does not dispose of the third limb at this stage. On R1's own pleading at Enclosure 9 paragraph 14, the Agreement is principally a property-management arrangement between P1 and R1. The single sub-clause addressing R2 and R3 cannot license dealings with company and partnership assets that disregard P1's rights as shareholder and partner or contravene R1's duties under section 213 of Act 777 and sections 22 to 30 of Act 135. The Mareva Injunction does not enjoin R1 from managing R2 and R3. It enjoins him only from dissipating their assets. The Agreement, properly read, is not inconsistent with that limited restraint.

Accordingly, I held that the threshold is reasonable apprehension grounded in solid evidence, not certainty. It is crossed.

Delay

R1 relies on Toyota Tsusho (M) Sdn Bhd v Lau Kum Foon & Ors [2019] 10 MLJ 596 and Ng Swee Pen & Ors v Walla Enterprise Sdn Bhd [2025] MLJU 188 for the proposition that unexplained delay undermines the credibility of the alleged risk. The principle is sound. Its application depends on whether the delay is in fact unexplained. The Applicants again raise the procedural objection that delay was not pleaded in Enclosure 9. For the reasons given in respect of hearsay, I deal with the point on its merits.

In my judgment, the delay here is explained. From 2022 onwards, the Applicants pursued upstream remedies including the Letters of Administration for Saraswathy's estate (decided on 13.11.2025) and the substitution of the Committee for Dorasamy (decided on 11.03.2026). Either remedy, had it succeeded in the form sought, would have given the Applicants standing to participate directly in the oversight of R2 and R3. When the present concerns about asset disposal crystallised, the Applicants filed this application on 23.01.2026, i.e. before the Committee application was even decided. The delay is not of the unexplained kind that defeated the applications in the authorities R1 relies on. The objection is not fatal.

Indefiniteness of duration

R1 submits that the duration sought by the Applicants namely "until full disposal of the action or until the Court otherwise determines", is impermissibly indefinite. I do not accept that submission. The conventional formulation for a Mareva injunction is that it operates "until further order". That formulation is well-established and preserves the right of either party to apply at any time for discharge or variation.

Based on the above, I order as follows –

A Mareva injunction is granted restraining the 1st Respondent, whether by himself, his employees, agents or any person acting on his behalf, from –

selling, transferring, disposing of, charging, removing or in any manner dealing with the machinery, vehicles, fixed assets, movable assets or any property of the 2nd Respondent and the business of the 3rd Respondent;

(ii) withdrawing any moneys or transferring any funds from the bank accounts of the 2nd and 3rd Respondents, save for ordinary operating expenses approved by the Court;

(iii) transferring, disposing of, surrendering, pledging, charging or otherwise dealing with any shares or equity interest in the 2nd Respondent in a manner that may prejudice the interests of the shareholders or the company;

(iv) transferring, surrendering, disposing of, charging or otherwise dealing with any partnership interest, profit share, asset, right or interest in the 3rd Respondent partnership. This order shall operate until further order of this Court.

The 1st Respondent shall, within seven (7) days, file and serve on the Applicants an Affidavit of Assets particularising all assets of the 2nd and 3rd Respondents, including locations, serial numbers, status of use, sums in bank accounts and any proceeds of sale received by the 1st Respondent.

An independent accountant or auditor shall be appointed by this Court to conduct an independent audit of the accounts and financial records of the 2nd and 3rd Respondents, the identity of the auditor to be determined upon further application by the Applicants on notice. The auditor shall file an Independent Audit Report with the Court within such period as the Court may direct, with copies served on all parties.

The 2nd Respondent and/or its Company Secretary shall, within fourteen (14) days, produce to the Applicants' solicitors all financial documents of the 2nd Respondent for 2015 to 2025, including statements of expenses, ledgers, cash and sales/purchase books, bank statements (active and inactive accounts), annual financial statements, audit reports and all invoices, receipts and supporting documents. The 3rd Respondent shall, within the same period, produce the equivalent documents for the partnership.

The 1st Respondent shall give full cooperation to the independent auditor, including access to records, accounting systems and personnel of the 2nd and 3rd Respondents.

the orders at (a) to (e) above are conditional on the Applicants filing a written undertaking as to damages within seven (7) days of the date of this order.

Prayer 3 of the Amended Originating Summons, which seeks an interim injunction until disposal of the action or further order does not require a separate order. Its substance is absorbed into Order 32 (a) by the “until further order” formulation.

Costs of RM15,000.00, subject to allocator, are awarded to the Applicants, to be paid by the 1st Respondent.

Liberty to apply. Dated : 14 May 2026 -signed-YA Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Counsel for the Applicants : : Monisha a/p John Selvam Messrs. Shobana M & Associates Counsel for the Respondents : : Chelvarajan a/l R Suppiah Messrs. Chelva R. Suppiah & Co.