the Plaintiff’s Writ and Statement of Claim is an abuse of court process based on the principle of res judicata and estoppel as all the issues and/or allegations raised by the Plaintiff are similar to the previous proceedings in the High Court, Court of Appeal and Federal Court which had been decided in finality and precision by the Courts; and [34] The High Court allowed the Defendants’ application to strike out the Appellant/Plaintiff’s Writ and Statement of Claim with costs of RM6,000.00. [35] Dissatisfied, hence these appeal by the Appellant/3Q Resources in Appeal No. 876 and 878. OUR DECISION [36] In essence, the LJC’s decision to order removal of the Appellant’s private caveat was, amongst others, on the ground that the Appellant is bound by issue estoppel and res judicata because the issues raised involving the ownership/transfer of the said Lands to Magnum Consortium had been duly decided by the previous Court Orders and cases and therefore, the Respondent (3Q Resources) cannot maintain any caveatable interest on the said Land. At the outset, it was agreed among the parties to the 3 appeals before us that the outcome of Appeal No. 899 would follow our decision in Appeal Nos. 876 and 878 as the determination of the issue in the latter appeals would bind Appeal No. 899. [37] We must first note that the Appellant’s civil suit that was struck out by the LJ was for the recovery of 5 parcels of land that originally belonged to the Plaintiff that were subject to foreclosure proceedings that resulted in an Order For Sale [’OFS’] of the lands. [38] Appeal 876 is, to our minds, a straightforward appeal as it concerns the question whether the LJ had correctly exercised her discretion in making the order to strike out the suit involving return of immovable properties summarily without any opportunity for the Appellant to adduce evidence on the merits of its claim. [39] Before us, the Appellant advanced the following issues in support of its contention that the LJ had erred in striking out the suit summarily: 1) Whether, the sale of the said 5 Lands from the Appellant to the first purchaser, namely Magnum Consortium Sdn. Bhd., was void, unlawful, and illegal, taking into account that there was no mandate to issue the shareholder’s resolution relating to the said sale? 2) Whether, the sale of the said 5 Lands were contrary to the Order for Sale dated 16.4.2007 (keeping in mind that this Order for Sale still remains valid)? 3) Whether, the subsequent purchaser, namely Solidwin Property Sdn. Bhd., having knowledge of the Notice addressed to Magnum dated 4.3.2010, can be considered as a bona fide purchaser? 4) Whether, in light of the fact above, peculiar to this case, the Court ought to have considered Section 340(4)(b) of the National Land Code 1965? [39] In view of the above issues, the hub of the Appellant’s contention was that the LJ ought not to have struck out the Appellant’s claim when she had wholly failed to address issues 2) and 3) above which raised questions of law and fact. Additionally, that all 4 issues were issues that warranted a trial and therefore, it was not a plain and obvious case for striking out under Order 18 Rule 19(1)(a), (b) and (d) of ROC. [40] At the outset, we would state that we are inclined to uphold the Appellant’s position that the contentious issues raised concern disputes of fact and law that would render the Plaintiff’s claim not being plainly and obviously unsustainable for invocation of the striking out process. Instead, in our view, the disputes warranted a full and fair opportunity for the Appellant to adduce evidence. [41] We must stress that we have not disregarded but duly considered the position taken by the Respondent in opposing this appeal. In a nutshell, the grounds the Respondent advanced are as follows: 1) The present Suit involves the same facts and issues relating to the same lands purchased by D1 [‘MC’] from the Plaintiff in 2010 and which have been ventilated in detail and specifically adjudicated under Enclosure 49 in Civil Suit 22-467-2009; amendment application filed under the same Civil Suit; and under Origination Motion No: 25-16-2011. The Court of Appeal [‘COA’] had affirmed the High Court decision in all 3 matters without any further appeal to the Federal Court [‘FC’] and therefore binding on the Plaintiff/Appellant. Hence, raising the same issues now amounts to an abuse of the Court process. 2) Prior to the purchase of the said lands, the land search showed no encumbrances and they were free from any registered interest. There was also no stay order or injunction to restrain the sale by the Plaintiff. D1 became the registered owner of the said lands upon purchasing the same and paying valuable consideration. The High Court and the Court of Appeal have confirmed that D1 is a bona fide purchaser for value without notice of any wrong doing and that it has obtained an indefeasible title to the said lands under section 340 of the NLC 1965. As such, the Plaintiff’s claim is obviously unsustainable, scandalous, frivolous and vexatious. 3) The Appellant is bound by the Judgments and Decisions made by the said Courts as above which are final, conclusive, valid and subsisting and have not been set aside and are binding on the Appellant and its privies. The same issues cannot be re-litigated. It is trite law that there must be finality to litigation. 4) The Appellant’s claim against D1 is barred by the principle of res judicata, estoppel and acquiescence. Its claim is an abuse of the process of court. It cannot be allowed to have a second bite at the cherry by filing a separate action related to the same issues, allegations and contentions about the validity of the sale, transfer and ownership of the said lands and without setting aside the earlier Court Orders as this would cause injustice to the Respondents (Defendants (1) and (3)). 5) The purchase price paid to the Appellant exceeded the reserve price under the Order For Sale [‘OFS’] obtained by the Chargee Bank. Hence, the Appellant had benefitted from the sale to MC. 6) The principle barring approbation and reprobation would apply against the Appellant as, on the one hand it did not challenge the OFS and had accepted the purchase price while on the other hand it seeks to set aside or nullify the sale to MC. This suit commenced for this purpose and for return of the subject lands without consideration was in breach of the previous court orders and also an unjust enrichment. 7) The Appellant cannot now raise all over the same issues which had been raised and adjudicated upon merely because Suit No: 23-467-2009 had been dismissed or because there has been a change in directors or shareholders in it. The appointment of new directors is irrelevant to the issue of the sale of its lands to MC as it is a separate legal entity that had consented to the sale and benefited therefore suit 467 does not concern this particular sale which is not affected by the same. The previous court orders have not been set aside and therefore, are in force and binding on the Appellant who was privy to the orders. [42] We now turn to the LJ’s reasons for striking out the Appellant’s claim summarily on the ground that the Appellant’s claim does not disclose a reasonable cause of action against the 1st and 3rd Defendants, and is therefore, frivolous, vexatious, scandalous and an abuse of the Court process. [43] In concluding as above, the LJ held: i) that the shareholder disputes in the Plaintiff Company had nothing to do with the sale of the said 5 Lands to the 1st Defendant; ii) that as the 1st Defendant had paid the purchase price to the Plaintiff Company and became the registered owner of the said 5 Lands, the 1st Defendant had acquired indefeasible title and therefore, the Plaintiff Company should be estopped from stating otherwise; iii) that the High Court has in Civil Suit 467 (the second action, the suit where the 4 Individual Directors had reinstated themselves as directors) confirmed that the 1st Defendant is a bona fide purchaser for the value vide Order dated 27.1.2010, and therefore the Sale and Purchase Agreement dated 8.3.2010 is valid and cannot be set aside; iv) that the 3rd Defendant, i.e. the subsequent purchaser of the 3 lands out of the said 5 Lands, was never impleaded in the Summons in respect of the said 5 Lands, and was never involved in any wrong doing for the said 5 Lands; v) that the Notice dated 4.3.2010 sent to the 1st and 3rd Defendants were ineffective as there was no order for a stay or an injunction at the material time to stop the sale of the said 5 Lands; vi) that the dispute arising in Civil Suit 467 involved the shareholders of the Plaintiff Company and the Defendants, and was not with respect of the said 5 Lands. In any event, there was a finding of fact by the High Court which was later re-affirmed by the Court of Appeal that the 1st Defendant is a bona fide purchaser for value and therefore the issue of a private treaty in respect of the sale of the said 5 Lands does not arise. The 1st Defendant is a bona fide purchase for value without notice of any wrong doing; vii) that because the Plaintiff Company was a party and privy to the proceedings in Civil Suit 467, the issues ought not to be relitigated and therefore, the Plaintiff Company ought to be estopped from denying the validity of the sale. The principles of res judicata, estoppel and acquiescence apply. [44] We will now proceed to make our determination on the core issue in this appeal whether the LJ had correctly decided that the issues brought forth by the Appellant did not warrant a full trial and as such, that the Appellant’s claim was a plain and obvious case that was unsustainable to warrant a striking out order under o.18 r.19(1), ROC. [45] In relation to issue (1) the Appellant rightly brought to our attention that it is settled law that where there is no mandate by a company for the sale of a company asset, such a transaction is void and invalid as held in the Federal Court case of Tan Chee Hoe & Sons Sdn. Bhd. v Code Focus Sdn. Bhd. [2014] 3 CLJ 141. [46] The material part of the FC’s judgment is as follows: “(8) Non-compliance or contravention of the mandatory statutory requirement under s.132C of the Companies Act rendered the SPA void and not enforceable by law. The question of “vacant possession” therefore is no longer relevant. In the circumstances, we would answer the questions posed as follows: viz, that (a) mandatory statutory provisions under s.132C must be complied with and cannot be waived by agreement of the parties; (b) non-compliance or contravention of the requirements renders the contract void and invalid and not enforceable by law; (c) by virtue of s.66 of the Contracts Act, the court of law may order restoration of whatever consideration or advantage paid or given under the contract and (d) being a void contract, the court cannot order damages for breach of any term of the contract in favour of one of the contracting parties.” [47] The allegation made was that the shareholders’ resolution passed for the sale of the subject lands was invalid ab initio for contravention of S.132C, Companies Act 1965, as the resolution had not been passed by lawful shareholders. [48] On the 2nd issue, it was impressed upon us that the sale of the subject lands in this instance was by way of private treaty which was in contravention of the OFS dated 16.04.2017 which mandated the sale to be by public auction. [49] As rightly suggested to us it could be a “clear usurpation of the legislative function if an order for sale by private treaty is allowed” as held by the High Court in United Malayan Banking Corp Bhd. v Chong Bun Sun [1994] 2 MLJ 221. [50] We also accept that in principle where an OFS is made by the Court, it has to be obeyed and enforced as it is only the Court that is seized of jurisdiction in respect of the property foreclosed. The position cannot be varied or altered even if the Plaintiff Company/Execution Creditor consents to a sale by private treaty which would be contrary to the OFS. Whether the latter mode of sale would, thus, be rendered void is clearly an arguable issue that ought to be tried. [51] Next, whether the subsequent purchaser, Solidwin Property Sdn Bhd [‘Solidwin’] could in law and fact be considered a bona fide purchase for valuable consideration is a question that plainly revolved around disputed facts. On this important point, the Appellant’s submission found favour with us that as the Respondents had notice of the pending dispute of the status of shareholdings and directorships in the registered proprietor company, then the lawfulness of any subsequent dealings on the said 5 Lands would be questionable. [52] In the circumstances, had the Respondents acted in good faith, it was incumbent upon them to have questioned the validity of the said sale. The law on this point was expressed succinctly in Aik Ming (M) Sdn. Bhd. & 8 Ors v Chang Ching Chuan & 3 Ors & Another Case [1995] 3 CLJ 639, the Court of Appeal held: - “[5] … As a matter of law, once a man’s mind has become infected with knowledge of an adverse claim or a doubt or cloud upon the vendor’s right to convey title before he had paid his money in full, he remains what was at the earlier stage: a person who is not a bona fide purchaser.” [53] There could be so doubt that the Notice dated 4.3.2010 was explicit in its warning to the Respondents of the pending disputes raised by the Appellant against the sale of its 5 lands. In addition, the Respondents acknowledged the Notice but failed or neglected to respond to it. They should have been put to enquiry and acted diligently in view of the sale being possibly tainted with illegality. [54] As the Respondents had clearly been put to notice via the above Notice to at least trigger their suspicion of something amiss as to whether the directors of the Appellant were clothed with authority to enter into the impugned SPA for the sale of the subject lands to the 1st Respondent [‘Solidwin’], the Respondents as outsiders cannot invoke the Turquand rule. [See Pekan Nenas Industries Sdn. Bhd. v Chang Ching Chuen & Ors [1998] 1 CLJ 793, the FC]. More importantly, on the instant facts, it was questionable whether in law the Respondents could be considered bona fide purchasers for value. [55] Under the above circumstances where our view is that a valid question was raised as to the validity of the sale by private treaty and whether it was in violation of written law that we have adverted to, there is no necessity for us to deliberate at length issue 4) save to say that it is clearly a triable issue. It is settled law that a chargor is entitled to rely on the provisions of S.340(4), NLC when he intends to challenge a registered charge where the transaction is shown to be in violation of statute or written law. This principle was made clear in Krishnadas Achutan Nair & Ors v Maniyam Sanykano [1997] 1 CLJ 636, where the Federal Court held in no uncertain terms that: - “[4] Parliament has enacted S.340(4)(b) for the purpose of dealing with fact patterns which do not fall squarely in the second sub-section to s.340 of the Code. The term ‘operation of law’ in that sub-section is deliberately used by the legislature to grant relief in cases where contractual or conscientious obligations are undertaken by or imposed on the registered proprietor either at law or in equity.” [56] It was emphasized that S.340(2) could be extended to instances where violation of written law is suggested and cannot be confined only to cases where there is a suggestion of fraud, forgery or any other matters stipulated in the sub-section. [57] It was highlighted by the Appellant that issues 1) – 4) that we have discussed above, were never dealt with by the LJ and thus, failed to correctly hold that there were sufficient reasons or issues that merited a full trial and this was not a plain and obvious case for striking out under O.18, 19, ROC. [58] In the final analysis, the law is that where a claim raises substantial issues and disputes of fact the party pursuing the claim is entitled to adduce viva voce evidence and the contentious claim should not be decided on conflicting affidavit evidence. [59] We would, lastly, deliberate on the decision of the LJ where she relied on the grounds of res judicata and abuse of the Court process in allowing the Respondents’/Defendants’ application for striking out pursuant to Order 18 Rule 19(1)(a), (b) or (d) of the Rules of Court 2012. Her Ladyship relied on the decision of the High Court in Civil Suit 467 that the 1st Respondent was a bona fide purchaser and therefore, the Appellant’s/Plaintiff’s Civil Suit herein was an attempt at relitigating decided issues. [60] We are inclined to concur with the Appellant’s submission on this crucial point that the LJ had fallen into error when she failed to duly consider the fact that the HC decision dated 27.01.2010 had been reversed by the Court of Appeal [‘COA’] on 24.01.2011. In that decision it was ordered that the directors of the Appellant / Plaintiff were given leave to apply for the restoration of the status quo ante prior to the decision dated 27.1.2010 in Civil Suit 467 and set aside the Order of 27.1.2010. [61] Hence, we are convinced that the invocation of the doctrine of res judicata by the LJ to dismiss the Appellant’s claim in limine was incorrect and misconceived. Had the LJ scrutinised the COA decision dated 24.01.2011, she would have found the grounds of res judicata and abuse of the Court process were baseless and non-starters and would most likely have taken a contrary view. CONCLUSION [62] Our decision at the end of the appeals with brief reasons given was as follows: