1. ) Tan Yan Shin v Intercontinental Mushroom Farming Sdn Bhd (BD-56WSL-8-04/2025)

Tan Yan Shin (No. K/P: 640227-10-7052)

Jeffrey Mah Weng Kai (No. K/P: 610614-10-5965) ... Pemiutang Penghakiman DAN Intercontinental Mushroom Farming Sdn Bhd (No. Syarikat: 1467039-M) ... Penghutang Penghakiman DAN Natural Mushroom Sdn Bhd (No. Syarikat 202401004534 (1550384-D)) ... Pihak yang Menuntut GROUNDS OF JUDGMENT (Encl. 51 and Encl. 52) INTRODUCTION [1] Encl. 51 is the Notice of Interpleader by the Court’s Bailiff, issued to the Execution Creditor and the Claimant, pursuant to encl. 25 the Bailiff’s application under O.17 r. 3 in relation to the Claimant’s notice of objection pursuant to O.17 r.2 in encl. 12, for the Court to determine the ownership of the goods seized from the premises subject to execution, the items are listed in the attachment to encl. 51. Meanwhile, encl. 52 is the Summons for Directions filed by the Execution Creditor under O.17 r.4, r.5 and r.11 seeking for directions inter alia, that the interpleader proceding is to proceed by trial to dispose of the alleged issues. [2] On the 10-10-2025 after hearing parties and considering all the affidavits and written submissions tendered, the Court dismissed encl. 52 and allowed encl. 51. Consequently, the writ of seizure and sales is struck out and the auction date is vacated. The deposit for the writ of seizure and sale is to be returned to the Execution Creditor subject to the Bailiff’s costs. Pursuantly, the goods seized from the premises are to be released and returned to the Claimant. The Execution Creditor dissatisfied and appealed against this decision. This is the grounds of judgment prepared for the case. The Orders and Rules referred to in this grounds are the provisions in the Rules of Courts 2012. The chronology of events [3] By encl. 1 the praecipe for the writ of execution dated 22-4-2025 together with encl. 2 the Writ of Seizure and Sales for movable properties (WSS), the herein Pemiutang Pelaksanaan/Execution Creditor (EC) filed the execution proceedings against the herein Penghutang Pelaksanaan/Execution Debtor (ED) pursuant the Judgment in Default dated 8-4-2025 (JID) entered by the EC as Plaintiff against the JD as the Defendant (JID is in encl. 3) for the sum of RM110,880.00; costs of RM1301 and interest calculated at the sum of RM3240. [4]

The JID requires the payment by the Defendant the sum of – Jumlah wang sebanyak RM110,880.00, iaitu:

1.1. RM92,400.00 yang terhutang oleh Defendan kepada Plaintif Pertama; dan 1.2. RM18,480.00 yang terhutang oleh Defendan kepada Plaintif Ke2;

Faedah pada kadar 5 peratus setahun untuk dihitung cari hari ke hari atas jumlah-jumlah tersebut dari tarikh-tarikh yang berikut sehingga penyelesaian penuh:

2.1. bagi Plaintif Pertama, dari 19.9.2024; dan 2.2. bagi Plaintif Ke-2, dari 29.9.2024; Ganti rugi am untuk ditaksirkan bagi kemungkiran kontrak;

Faedah pada kadar 5 peratus setahun untuk dihitung dari hari ke hari atas jumlah ganti rugi am dari tarikh penghakiman sehingga penyelesaian penuh; dan

Kos tindakan ini sebanyak RM1301.00. [5] Pursuantly, by encl. 5, the Court’s Bailiff notified the EC that the seizure process would take place on the 6-5-2025 at 10.30am upon requisite payment of deposits to which the sum of RM1030.00 was paid by the EC as in encl. 6. The seizure was scheduled to proceed at the premises known as No. 8 Jalan Industri BRJ 2, Taman Industri Bukit Rawang Jaya, 48000 Rawang, Selangor (the premises). Thereafter, the Court’s Bailiff filed its report in encl. 8 stating that on the 6-5-2025 at 10.40am, the Bailiff went to the said premises and 2 security guards have been appointed to keep the safety of the inventory items which would be auctioned on 20-5-2025 (which later referred to as the seized goods of listed items). Encl. 9 is the Notice of Seizure and Inventory pursuant to O.46 r.16 and O.75 r.4 with 28 items listed in the annexture. The draft of the Proclamation of Sale is in encl. 11 dated 13-5-2025 whereby the auctioner has been appointed, that is Tan Chi Siang from Chi Siang Coomercial Sevices. The fair copy of the Proclamation of Sale is in Encl. 15 filed on the 19-5-2025. [6] About 9 days after the seizure of the goods in the premises, on the 15-5-2026 the herein Claimant/Penuntut (afterwards will be referred to as the Claimant) filed its Notice of Objection under O.17 r.2 in encl. 12 claiming ownership of the goods seized from the premises on the grounds that the listed items belong to the Claimant. [7] The Claimant alleged that it is a tenant to the premises. In Lampiran A of encl. 12, the Claimant attached the Tenancy Agreement between the Claimant as the tenant and SC Kuan Enterprise Sdn Bhd (Co. No. 200501034964 (7170108-P) as the Landlord the agreement to take effect for 1 year from 9-6-2024 to 10-6-2025 with 1- year option to renew, the purpose of the tenancy is to enable the tenant to carry out business for cultivation and harvest of mushrooms and truffles distribution, packaging and its related business. [8] In Lampiran B of encl. 12, the Claimant attached a letter by a company named Softa Marketing Sdn Bhd dated 2-9-2024 addressed to the Claimant for the joint venture agreement to produce mushroom-based products for local and international marketing. To this effect, as a form of commitment, Softa Marketing prepared to equip the premises with the necessary machines and equipments necessary for the production process. The equipments and machines are listed under the letter which is followed by the purchase orders, invoices and receipts of goods under the name of the Claimant. The Claimant also forwarded that the signage bearing its name on the premises, the receipt of the signage also tendered. [9] Therefore, the Claimant prayed that the goods seized from the premises, which belong to them eversince they moved into this premises be released to them as they have no relationship with the ED. [10]

In encl. 52 the EC sought for the following orders – Bahawa prosiding interplider yang dimulakan dengan pengeluaran Notis Interplider bertarikh 25.9.2025 (Kandungan 51) (“Prosiding Interplider”) ditentukan melalui perbicaraan penuh yang menghendaki keterangan lisan diberikan oleh saksi-saksi yang berikut:

1.1. Chua Yong Hong (No. K/P: 760420-01-7397);

1.2. Yap Siow Hong (No. K/P: 870914-14-6129);

1.3. Suzana Binti Ahmad (No. K/P: 681118-07-5574);

1.4. Wan Mohd Faizal Azizi, pengarah syarikat Softa Marketing Sdn Bhd (No. Syarikat: 1037966-T);

1.5. Wong Poh Yoke (No. K/P: 590402-06-5388); dan 1.6. Jeffrey Mah Weng Kai (No. K/P: 610614-10-5965).

Bahawa isu-isu berikut dinyatakan dan dibicarakan:

2.1. Sama ada barang-barang yang disita di premis No. 8, Jalan Industri BRJ 2, Taman Industri Bukit Rawang Jaya 2, 48000 Rawang, Selangor (“Premis”) dimiliki (dari segi undang-undang dan/atau ekuiti) oleh Penghutang Pelaksanaan (“IMF”) atau oleh Pemohon;

2.2. Sama ada Pemohon merupakan sebuah “phoenix company” yang meneruskan perniagaan IMF;

2.3. Sama ada Pemohon digunakan secara salah untuk menyukarkan dan menghalang pelaksanaan terhadap IMF;

2.4. Sama ada Pemohon ataupun IMF yang mempunyai milikan (‘possession’) terhadap barang-barang yang disita di Premis;

2.5. Sama ada Pemohon dan IMF melakukan fraud terhadap Pemiutang-Pemiutang Pelaksanaan dengan menyalahgunakan pemerbadanan syarikat;

2.6. Sama ada Pemohon diperbadankan untuk mengambil alih asetaset IMF bagi tujuan menyukarkan dan menghalang tuntutantuntutan terhadap IMF;

2.7. Tanpa prejudis kepada isu-isu di atas, sama ada terdapat aset-aset milik IMF yang disita. Sekiranya ada, apakah aset tersebut?

Bahawa Pemohon, Natural Mushroom Sdn Bhd, dijadikan Plaintif, manakala Pemiutang-Pemiutang Pelaksanaan, Tan Yan Shin dan Jeffery Mah Weng Kai, dijadikan Defendan-Defendan dalam Prosiding Interplider;

Bahawa afidavit-afidavit pihak-pihak yang telah difailkan bagi tujuan Prosiding Interplider diarahkan untuk dijadikan pliding dalam Prosiding

Kos permohonan ini dijadikan kos dalam kausa; dan

Apa-apa arahan atau perintah lanjut atau lain yang dianggap adil dan suai manfaat oleh Mahkamah. CONSIDERATIONS FOR ENCL. [17] In the interpleader action, O.17 r.5(1) and 5(2) provides that the Court may determine the ownership issue either summarily or by trial. The provision reads-Powers of Court hearing originating summons or notice of application (O.17 r.5)

Where on the hearing of the originating summons or a notice of application under this Order all persons making the adverse claims to the subject matter in dispute ("claimants") appear, the Court may order-

that any claimant be made a defendant in any action pending with respect to the subject matter in dispute in substitution for or in addition to the applicant for relief under this Order; or

that an issue between the claimants be stated and tried and may direct which of the claimants is to be plaintiff and which is to be defendant.

Where-

the applicant on an originating summons or a notice of application under this Order is the Sheriff;

all the claimants consent or any of them so requests; or

the question at issue between the claimants is a question of law and the facts are not in dispute, the Court may summarily determine the question at issue between the claimants and make an order accordingly on such terms as may be just. [18] The EC contended that the issues in this case are not merely legal issues with undisputed facts because the EC alleged that the Claimant is a phoenix company taking over the assets of the ED, therefore, the goods are liable to execution as they are legally and/or beneficially owned by the ED. This is however denied by the Claimant who alleged that the goods seized in the premises belong to the Claimant as the Claimant is a valid tenant of the premises. Due to this dispute of facts, the EC contended that it is not suitable for the interpleader action to be determined by affidavit evidence instead, by viva voce evidence. This allegation is based on the following facts presented by the EC in encl. 52- “..Chua Yong Hong (“Chua”), the deponent of several affidavits in the stay of execution application, was a former employee of the Execution Debtor. He is now claiming to be the manager of the Applicant. Chua would have personal knowledge of what happened to the Execution Debtor, but did not affirm any facts thereto. ..Wong Poh Yoke (“Irene Wong”) affirmed an affidavit in the stay of execution application detailing how the Execution Debtor had taken investments from several people, including the EC, and the company was then taken over by Chua and Yap Siew Hong (“Yap”). ..The Applicant’s website stated that the Execution Debtor was their “collaboration partner”. This was denied by the Applicant. ..The Premises purportedly used by the Applicant still have SGS Certificates bearing the Execution Debtor’s name”. ..The EC also disputes the authenticity of the invoice which the Applicant relies on to prove the purchase of the assets. ..These facts were denied by the Applicant. The Applicant claims they are an entirely separate entity and that the debts of the Execution Debtor do not bind them.” [19] To support its submissions, the EC referred to the case of HSBC Bank Malaysia Bhd v Wong Thien Boon & Ors [2008] 6 CLJ 381, whereby the Court of Appeal held that an originating summons (OS) should be converted to writ under O.28 r.8 due to serious factual disputes on when limitation would set in, or whether the doctrine of laches would apply- “Given the material that was placed before him by way of affidavits a conflict of evidence emerged on several issues including, whether the defendants were either estopped or barred in making their demand due to the operation of equitable doctrine of laches. There also appears to be a serious dispute between the parties as to whether, and if so, when limitation set in. These are matters which require full argument and mature consideration. It is also plain that viva voce evidence is necessary to determine in which direction the balance of equity would turn. Unfortunately, none of these points was considered by the learned judge. He merely addressed his mind to the affidavit evidence although allegations on the one side were credibly denied by the other. ...” [20] The same is referred to in the case of Durable Concrete Sdn Bhd v TH Universal Builders Sdn Bhd [2000] 6 CLJ 469, whereby the High Court held that certain disputes are not resolvable by affidavit evidence alone- “Patutkah saman pemula ini digantung sehingga tindakan writ itu diputuskan? Plaintif memfail saman pemula ini untuk mengelak atau membantut perjalanan tindakan writ itu. Kata peguam plaintif, saman pemula lebih cepat. Dalam perbalahan ini, saman pemula adalah tidak sesuai langsung. Malah, melalui keterangan afidavit, perbalahan antara mereka tidak mungkin dapat diputuskan langsung.” [21] The EC further submitted that in HSBC Bank Malaysia Bhd case above, it was held that the OS should be converted into a writ action when the assertions are “credibly denied”. The EC also referred to the English case of Fredericks and Pelhams Timber Buildings v Wilkins (Read, claimant) [1971] 3 All ER 545, whereby the Court of Appeal held that where the goods are of considerable value and the dispute may involve difficult questions of law, summary determination will not be appropriate- “The claimant's affidavit of 1 December was of some length and raised on the face of it a serious claim to diverse chattels of an overall considerable value— and the prospect of difficult points of law. It was plainly not a case for ordering summary determination under RSC Ord 17, r 5(2), with its consequent limitations on the right of appeal and other incidents.” [22] In the English case of PBJ Davis Manufacturing Co Ltd v Fahn (Fahn claimant) [1967] 2 All ER 1274 the Court of Appeal has held that summary determination under Order 17 r. 5(2) of the Rules of Supreme Court 1 does not necessarily mean determining the case on affidavits alone. It must be determined by way of oral evidence and cross examination without an issue stated- “LORD DENNING MR: ... On the hearing of the summons it was open to the master “summarily” to determine the question (see RSC, Ord 17, r 5(2)); but “summarily” there does not mean that he can determine it straight away out of hand. It means only that he can determine it himself without directing an issue (see Re Tarn). The usual practice of the master when he “summarily” determines the question, is to give a special appointment at which evidence can be taken orally and the witnesses can be cross-examined; and at which the relevant documents can be produced.” FINDINGS FOR ENCL. The alleged triable issue [23] On the outset, this interpleader action was commenced under O.17 r.3(1) which empowers the Court to dispose it as per O.17 r.5(2) if the material facts are not disputed. O.17 r.2(a) further states that the court may determine the notice filed by bailiff, summarily if there is no dispute as to the material facts. This means that the Court may dispose the matter by full trial if there are triable issues to be decided whish is not suitable to be resolved by affidavit evidence. The issue is whether there is a heavily disputed facts in relation to the ownership of the goods seized from the premises. The Court viewed that disputed facts are inconsistent facts raised by both parties to the case which needed to be proved by those who assert. An allegation should be proved before it could become a fact, in the absence of which, it stays mere allegations. [24] From the affidavits filed by parties in encl. 21, 22, 30 and 49 as well as the affidavits in encl. 18, 26, 27, 32 and 33, the Court found that the premises were once occupied by the ED and ED used this address in its business with the EC. Hence, the same address was used by the EC to serve the court’s causepapers up until the JID was entered and served. However, when the execution process took place, the ED has moved out and the Claimant replaced it as a new tenant, which is proven by the tenancy agreement stated above. Despite the Claimant’s objection on the seizure process the EC remains adamant to proceed. The Claimant has proven that the seized items belong to the Claimant by showing that the signage on the premises bears the Claimant’s name, the SSM search of the Claimant shows that the Claimant’s business address is at the premises and that the Claimant has documents to prove its ownership by the purchase orders, invoices and receipt of the goods in the premises. These are all in encl. 49. [25] The EC remains with its contentions that the goods seized in the premises belong to the ED and subject to the execution process because the Claimant is a phoenix company that took over the business of the ED. This is evident from the facts that a person named Chua Yong Hong who affirmed the Claimant’s affidavit in his capacity as the Manager to the Claimant in the stay application (encl. 16) is a former employee to the ED. There is also a person named Wong Poh Yoke who affirmed the Claimant’s affidavit in the stay application that had stated the business transaction between the Claimant and the ED. The EC also pointed out that during the seizure, the SGS Certificates of the ED were still present in the premises. Other than that, both the ED and the Claimant are of the same nature of business and that the ED’s name is present in the Claimant’s website. [26] The Court in evaluating the issues raised by the EC should also keep focus that this is an interpleader action whereby the sole issue to be disposed off is the ownership of the seized goods. [27] The Court found that the alleged evidence to relate to the fact that the Claimant is a phoenix company of ED, was the presence of the ED’s SGS Certificate in the premises at the time of seizure as well as the statements affirmed by Chua Yong Hong and Wong Poh Yoke, have not supported its contentions. The same goes to the assumption that the similar nature of business creates evidence to the relationship between the Claimant and the ED. This is due to the fact that the Claimant has proven its asserted facts. [28] According to the SSM search of the ED and the Claimant, both entities are different in various aspects, from the date of incorporation to the name of directors and shareholders of the companies as well as the purpose of their incorporation. While ED’s purpose of incorporation is to carry on the farming of mushrooms, the Claimant on the other hand has wider business area which includes the farming of mushrooms as well as processing and marketing mushroom-based products. [29] Furthermore, there is no documentary evidence to prove that both companies have been managed by the same people or that these companies are an entity sharing the same legal responsibilities so as to impose the ED’s liability on the Claimant as per the JID entered by the EC. In the end, the contention that the ED and the Claimant are one legal entity which makes the JID legally enforceable on the Claimant is not supported. Hence, it remains as an unproven fact that has no weight to challenge the facts presented by the Claimant, that the Claimant is the owner of the goods seized and that the Climant is not related to the ED. Since there is no triable issue as contended by the EC, the Court views that this interpleading process could be disposed of summarily. [30] The cases relied upon by the EC (to convert the interpleading into a full trial process) are distinguishable and inapplicable to this case because those authorities concern situations where the original originating summon (OS) was converted into a writ action due to the existence of substantial disputes of fact. The OS itself was not suitable to be disposed of by affidavit evidence alone, thereby necessitating viva voce evidence. However, in the present case, there is no conflicting facts because the fact introduced by the EC is unsupported, hence this interpleader proceeding should proceed summarily as provided for under O.33 and O.47 of the Rules of Court 2012 the purpose of which is to determine the ownership of the seizure items. The Court ruled that there is no necessity for the interpleader procedure to be converted into a full trial process. Jurisdiction of this Court in the interpleader’s action [31] As this Court has decided above, there is no necessity to convert this interpleader proceding into a full trial because there is no issue to be tried in relation to the EC’s contention which eventually, as the Court perceived, related to the identity of the Claimant and the ED, the Court is now alternatively looking from a different point of view with regards to the jurisdiction of the Court under O.17. Whether the Court has the jurisdiction to determine the issues forwarded by the EC which is not directly pertaining to the determination of ownership of the seized goods. [32] The Court is embarking on an alternative view, whether the EC is allowed to force the court to decide on the initial substantive issue which is perceived as the issue of the identity of the Claimant and the ED before the determination of the ownership of the goods seized. The Court referred to the cases that decided on the issue whether interpleading action could be used to determine other than the ownership of the seized goods. In Perry, Tamar and another v Esculier, Jacques Henri Georges and another and another matter [2021] SGCA(I) 5 [2022] 1 SLR 107 the Court of Appeal in Singapore has referred to English cases and held that in an interpleader proceeding, the Court cautioned to control its jurisdiction to avoid transforming it into a substantive action, the Court’s jurisdiction is limited only on the determination of title to the property in question, the Court stated- “De La Rue thus makes clear that an action commenced as part of interpleader proceedings is not a free-standing action. Although it is in form an action between rival Applicants to particular property, it is in substance a proprietary dispute, the resolution of which is necessary to help the party applying for interpleader relief to determine who the liability (in the form of the property) is owed to. … [53] ... In our view, permitting the claims the appellants sought to rely on would be an abuse of process and of the court’s interpleader jurisdiction:”

In Commonwealth of Australia v Peacekeeper International FZC UAE [2008] EWHC 1220 (QB) (“Commonwealth of Australia”) at [42], Foskett J observed at [42] that: For my part, as the present rule relating to interpleader proceedings stands, it seems to me that there is very little scope within Order 17 itself for the court to transform interpleader proceedings into a substantive action … [emphasis in original omitted]

Commonwealth of Australia was subsequently approved by the English Court of Appeal in Stephenson Harwood LLP v Medien Patentverwaltung AG and another [2021] 1 WLR 1775 (“Stephenson Harwood”), which itself cited the decision of Lord Esher MR in Eschger Co v Morrison, Kekewich Co

6 TLR 145, where His Lordship “doubted very much whether the court had the power to transform an interpleader issue into a wholly general action”. At [20] of Stephenson Harwood, the English Court of Appeal went on to state that: It is clear therefore that the courts have been careful not to regard submission to the jurisdiction in the case of a stakeholder application as a submission to the jurisdiction for all purposes or for the purposes of extraneous claims against the stakeholder or the rival claimants … The court’s interpleader jurisdiction is one which has to be carefully controlled. Considerations such as the extent of parties’ submission to jurisdiction, and concern as to parties attempting to circumvent the rules on service out of jurisdiction by way of the court’s interpleader jurisdiction, militate in favour of the interpleader jurisdiction being applied only within its prescribed bounds. Claims such as the CPO and CLPA claims, being claims which did not assert title on behalf of the appellants to the Moneys, fell outside those bounds. Accordingly, the appellants’ appeal in relation to the CPO claim failed.” [33] From the above case, this Court is reminded that the scope of O.17 is very narrow and therefore the Court should not extend its jurisdiction to hear other extraneous matters that goes beyond the determination of ownership of the seized goods. In other words, the Court should not allow the conversion of the interpleader’s process into a general case to decide on the merit of the substantive claim. [34] Also referred to, is the case of Precious Shipping Public Co Ltd and others v OW Bunker Far East (Singapore) Pte Ltd and others and other matters [2015] SGHC 187 [2015] 4 SLR 1229 whereby the Singapore High Court held that an interpleader summons exists only to allow court to determine the incidence of liability and not determination of liability the court stated- “[94] Although the specific issue in Tetuan concerned a counterclaim made in an affidavit opposing an application for interpleader relief, the more general point that the Federal Court was making is that the scope of an interpleader summons is a narrow one: it exists to allow the court to determine the incidence of liability. It was never intended as (and, indeed, it is manifestly unsuited to function as) a mechanism for the determination of liability, which is the raison d’être of the summary judgment procedure”. [35] The above case fortifies that O.17 does not extend the scope of an interpleader process to determine liability of parties. The Court can only determine the issue as to who has the better right of the properties listed in the Notice of Interpleader (encl. 51) and not to decide on whether the ED and the Claimant are of the same identity that the JID against ED could be executed on the Claimant’s goods. In conclusion, this Court found that encl. 52 lacks jurisdiction and does not serve the purpose of determining the better rights of the goods, rather it is filed as a fishing expedition to determine liability of the parties. This means that, even if the summary process is converted into a full trial, the subject matter to be tried should not exceed the jurisdiction limited for determining the ownership of the seized goods, to which in this case the EC is attempted to bring the Court to decide on the substantive claim of the original suit, which should not be allowed. Fraud not pleaded [36] As the EC alleged, the incorporation of the Claimant as the phoenix company of the ED was to defraud the EC, but there is nowhere to be found the particulars to this contention. In relation to O.18 r.8(1) which provides that a party is required to specifically plead fraud, the Court found that the EC has failed to specifically plead the alleged fraud. In the case of Wong Yew Kwan v Wong Yu Ke & Anor [2009] 2 MLJ 672, the Court held that the non-particularisation of fraud is fatal to the case- “Order 18 r 7(1) of the Rules requires a party to state the pleadings in the form of skeletal statement of facts sufficient to identify the matters complained of to enable one to establish one’s case at the trial based on what is pleaded. To satisfy the rule on pleadings, the appellant was accordingly required to plead ‘material facts’ necessary for his defence and counterclaim. On the issue of fraud, O 18 r 8(1) of the Rules requires fraud to be specifically pleaded. There is good reason for doing so. It is so as not to take the other party by surprise. In Associated Leisure Ltd & Ors v Associated Newspapers Ltd [1970] 2 QB 450Lord Denning said: … it is the duty of counsel not to put a plea of fraud on the record unless he has clear and sufficient evidence to support it.” [37] In the Federal Court case of Tan Chwee Geok v Khaw Yen-Yen & Anor [1975] 2 MLJ 188, at p 191 it was ruled the same- “Before a plea of fraud is put on record, it is the duty of counsel to insist on being fully instructed in the matter. Such a plea should never be pleaded on flimsy material. The non-particularisation of the allegation of fraud by the appellant in this case was clearly fatal. The admission by the appellant of the discovery of fraud being ‘recent’ and ‘investigation is still on going’ is against the Rules and not in accord with the principles which has been firmly established. Paragraphs 1 and 2 as pleaded in the statement of defence and counterclaim were clearly insufficient on the issue of fraud”. [38] As this Court had found earlier, the allegation of fraud must be particularised. It is trite that fraud needs to be specifically pleaded with sufficient particulars, in the absence of which the Court has no means to decide on the allegation. In the Federal Court 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] 5 CLJ 418, it was held- “[25] In an action in fraud, when fraud is pleaded, "bare allegations of fraud without particulars are to be disregarded by court" (see Malaysia Civil Procedure 2013 at 18/8/2). "With regard to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud... " (Wallingford v. Mutual Society (1880) 5 App Cas 685, 697 per Lord Selborne). "...”. Conclusion for encl. [39] This Court reiterate the findings for encl. 52 as follows. The interpleader proceding under O.17 does not provide a venue to determine other than the issue of ownership of the goods seized under the execution. The issue to which the EC attempted the Court to convert the summary procedure into a full trial is on the allegation of fraud by the Claimant as well as to determine the relationship of the Claimant and the ED. With due respect, these are not the issues to determine the ownership of the goods seized but rather to determine the merit of the substantive claim or the main suit between the Plaintiff and the Defendant. This should not be allowed. [40] Furthermore, the allegation of fraud is not particularised and the assumption that the Claimant and the ED are of the same legal entity is unsupported by evidence. The Claimant in this interpleader action is not a party to the original suit between the Plaintiff and the Defendant on which the JID is executed upon. Therefore, this Court views that the EC’s case for fraud and identity of the Claimant and the ED as well as the relationship between the two entities should be initiated in a separate action and be proven first before the judgment could proceed for execution. The EC is not allowed to use this venue to determine other than what O.17 is meant for. Accordingly, encl. 52 is dismissed with costs of RM2000 to the Claimant. CONSIDERATIONS FOR ENCL. [41] As has been stated above, encl. 51 is the interpleader notice by the Bailiff enclosing the listed items that have been seized from the premises. The Claimant submitted that these 28 items belong to them and forwarded the documentary proofs such as the purchase order, invoices and receipts of the goods in the Claimant’s affidavit in support at pages 25 to 40 and 61 to 72 in encl. 47. The EC has generally challenged the authenticity of the documents but did not provide documentary evidence to prove their version. [42] The Claimant also averred that it has no corporate relationship with the ED, as can be seen from the SSM search of the ED and the Claimant, the directors and the shareholders of this two companies are different. There is no documentary evidence to show that the ED company and the Claimant are related to each other or share the same legal responsibilities. Furthermore, the Claimant is not a party to the main suit between the Plaintiff and Defendant and the ED has discontinued its operation in the premises and moved out therefrom before the Claimant filled up the vacancy to the premises. Therefore, the execution process had caused grave injustice to the Claimant with respect to its daily operations and business. Burden of proof [43] The burden of proving the ownership of the seized properties has been explained in the case of Development & Commercial Bank Bhd v. Lam Chuan Co & Anor [1989] 1 MLJ 318, at pages 320 to 321, whereby the Court decided- “In Mallal's Supreme Court Practice by Tan Sri Chang Ming Tat at p 173 it is stated that in a sheriff's interpleader the claimant is as a general rule made the plaintiff and the burden of proof rests upon him where the goods seized were at the time of seizure in possession of the judgment debtor, possession being prima facie evidence of title. If, however, the claimant was in possession at the seizure, the burden of proof may be upon the execution creditor thus reversing the ordinary rule and the execution creditor may be made plaintiff. I was of the opinion that it is actually for the execution creditor here to prove that the judgment debtor was the actual lawful owners of the goods attached but which they had failed to do...” [44] Generally, as explained in the case of CB Media Sdn Bhd & Anor v. Kesas Sdn Bhd [2019] 4 CLJ 609 CA; [2019] MLJU 212, Yang Arif Stephen Chung on the burden of proof has stated that- “[19] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s. 101 of the Evidence Act 1950). Where a party on whom the burden of proof lay had discharged that burden, then the evidential burden shifted to the other party. But if the party on whom the burden of proof lay failed to discharge it, the other party need not call any evidence: Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491; [2017] 5 MLJ

398.” [45] In the case of Tenaga Nasional Bhd v Transformer Repairs & Services Sdn Bhd & Ors [2024] 1 CLJ 110 the Court highlighted the following scenarios when deciding on the burden of proof- “(vi) in the two scenarios:

if the party who has legal burden (X), has not adduced any evidence to discharge X's legal burden, the court should then decide in favour of the opposing party (Y)... This is because X has failed to discharge the legal burden and there is no legal burden on Y to present any evidence to support Y's case and to rebut X's case;

if X has adduced evidence which is not inherently incredible regarding X's legal burden (X's prima facie case), the evidential burden will then shift from X to Y...” [46] Both of the cases above, ie CB Media Sdn Bhd & Anor v. Kesas Sdn Bhd and Tenaga Nasional Bhd v Transformer Repairs & Services Sdn Bhd & Ors guided this Court, on the burden of proof, that the party who asserts a fact should prove it, whereas the other party, when the facts have been proven on the balance of probabilities lays on, should disprove otherwise. [47] In the present case, it is found that the Claimant has forwarded the evidence for its claim of ownership to the seized goods and it is now for the EC to disprove otherwise. In Development & Commercial Bank Bhd v. Num Tjuan Sdn Bhd [1989] 1 CLJ Rep 26; [1989] 1 MLJ 475, the Court had decided that the Claimants are the owners of the goods seized from the premises that is subject to the seize and seizure, then it is on the Execution Creditor to prove that the ownership belongs to them-

23.1 “In Mallal’s Supreme Court Practice by Tan Sri Chang Ming Tat at p 173 it is stated that in a sheriff’s interpleader the claimant is as a general rule made the plaintiff and the burden of proof rests upon him where the goods seized were at the time of seizure in possession of the judgment debtor, possession being prima facie evidence of title. If, however, the claimant was in possession at the seizure the burden of proof may be upon the execution creditor thus reversing the ordinary rule and the execution creditor may be made plaintiff. I was of the opinion that it is actually for the execution creditor here to prove that the judgment debtor was the actual lawful owners of the goods attached but which they had failed to do. In any case, it was my view that based on the evidence taken before the senior assistant registrar, the affidavits averred and authorities cited, the claimant had in fact and in law succeeded in establishing that they were the actual lawful owners of the attached property seized on the premises. [48] In Development & Commercial Bank Bhd v. Lam Chuan Company & Anor [1989] 1 MLJ 318, it was decided the same- “..there was really only one issue, i.e., whether the goods belonged to the claimant or the defendant at the time of attachment... We find that we agree with the view of the learned Judge that the claimant had been able to establish that they were the lawful owners of the attached properties. Accordingly, we support the learned Judge in dismissing the appeal.” [49] In the case of Overseas Investment Pte Ltd v. Anthony William O'Brien & Anor [1988] 2 CLJ Rep 82; [1988] 3 MLJ 332 it was held- “…That, in the end result, is what this case came to, with the added gloss that there was no evidence whatsoever from the plaintiff that the house was the defendant's or that he was living there at the material time, or even that he had paid for the goods... This is not a case of just a wrongful irregular execution. It was an execution levied by the Plaintiff on goods which have been proven to be property not of the defendant but 3rd Party against whom the Plaintiff has no judgment. Such a wrongful seizure is actionable trepass and remedy is in damages.” [50] In the instant case, the EC has not proven that the EC is the valid owner of the seized goods or that the goods belong to the ED or that the Claimant is not the owner of the goods. The similar subject matter in the business carry out by the ED and the Claimant should not become a sole evidence that the seized goods belong to the ED. The Claimant has provided its reasonable explanation that the Claimant moved into the premises upon the premises vacated by the ED as the previous occupier. The Claimant has been incorporated since 31-1-2024 and entered into the tenancy agreement on 10-6-2024 with SC Kuan Enterprise as can be seen in the affidavit in encl. 49, whereas the ED had started the business since 15-6-2022. Even the registrered addresses of the ED and the Claimant are not the same (the SSM search is in page 134 of encl. 47 and SSM search for the Claimany in page 127 of encl. 47). [51] Further, in Tenaga Nasional Bhd v. Transformer Repairs & Services Sdn Bhd & Ors (supra) the Court of Appeal decided that the EC has the duty to investigate the Claimant’s objection before the seizure took place, the court held- "...any execution creditor, who has been informed that movable property in the possession of an execution debtor may belong to a third party, should inquire from the third party before seizing and selling the movable property pursuant to a writ of seizure and sale." However, in this case, the EC did not carry out any investigation or inquiry to the seized goods despite being served with the Claimant’s notice of claim in encl. 12. [52] In this case, the Court is satisfied that the Claimant has proven its ownership of the seized goods following the regular procedures under the law as the rule stated in Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697, "...where the property of a judgment debtor has been attached by a judgment creditor, an objector in objection proceedings must show that they are the lawful owner of the property at the time of attachment." [53] The burden of proving the ownership of the seized goods from the premises has been fulfilled by the evidence forwarded by the Claimant’s affidavit in support and they are not challenged by the EC. In conclusion, the Court found that the premises in No. 8 Jalan Industri BRJ2 Taman Industri Bukit Rawang Jaya 2, Rawang which is occupied legally by the Claimant and the goods seized therefrom are proven, on the balance of probabilities belong to the Claimant. Therefore, the Claimant’s notice in encl. 12 which is followed by the Bailiff Notice in encl. 25 is allowed. As per the interpleader summon in encl. 51 it is ordered that the goods seized by the Bailiff from the above stated premises be released from seizure and returned to the Claimant with costs of RM2000 to be borne by the EC and paid to the Claimant. Accordingly, the execution deposit paid by the EC to be returned to EC subject to the Bailiff costs. The execution date is vacated. Norazlin binti Othman Hakim Mahkamah Sesyen 2 Selayang Disediakan pada 4-11-2025 Peguam Pemiutang Penghakiman/Execution Creditor : MESSRS ADAM HAIKAL 29-2, Plaza Crystalville, Jalan 22a/70a, Desa Sri Hartamas, 50480 Kuala Lumpur, Wilayah Persekutuan Tel.: 03-6420 2533 Email: chambers@adamhaikal.com Ref.: AH0102 Peguam Penuntut/Claimant : MESSRS VIN CHENG & CO Unit 20-1 & 20-2, Oval Damansara, No. 685 Jalan Damansara, Taman Tun Dr Ismail, 60000 Kuala Lumpur. Tel.: 03 2859 1319 Email: info@vcclaw.com.my