AFFIN BANK BERHAD v IHAA CAPITAL SDN. BHD. (Dahulunya dikenali sebagai IHAA Holding Sdn. Bhd.) (WA-22NCC-562-08/2024)

IHAA CAPITAL SDN. BHD. [Company No.: 201401009422 (1085500-M)]

LIM PHECK JOO [Identity Card No.: 681107665026]

GREGORY AMOS YOON PENG SUM [Identity Card No.: 750227145603]

WAN NASIR BIN WAN MUSTAPHA [Identity Card No.: 750425035931] …DEFENDANTS JUDGMENT Introduction [1] Enclosure 10 is the Plaintiff’s application for summary judgment for banking facilities granted to the First Defendant and guaranteed by the Second, Third and Fourth Defendants. [2] After hearing submissions and upon perusal of all relevant cause papers, this Court was satisfied that the Defendants have failed to raise any triable issues to merits the action going for trial. The submissions by the Defendants were unsupported by any documentary evidence at all and in fact contrary to the documents. Background Facts The Parties [3] The First Defendant is a private limited company established under the Companies Act 2016 having its registered and business address at No. 9.07, Level 9, Amcorp Tower B, Amcorp Trade Centre, 18, Persiaran Barat, 46050 Petaling Jaya, Selangor, and another known address for service is at No. 7-1, Jalan 109F, Plaza Danau 2, Taman Danau Desa, 58100 Kuala Lumpur. [4] The Second Defendant is the director of the First Defendant and is the Guarantor for the First Defendant, with a known address for service at Unit 25, Sunway Kiara Hills, No.1, Jalan 32/70A, Taman Sri Hartamas, 50480 Kuala Lumpur, Federal Territory of Kuala Lumpur. [5] The Third Defendant, is the director of the First Defendant and is also the Guarantor for the First Defendant, with a known address for service at 25, Block Cempaka, Desa 288, 68000 Ampang, Selangor Darul Ehsan. [6] The Fourth Defendant is the director of the First Defendant and is also the Guarantor for the First Defendant, with a known address for service at No.1, Bayu Segar 2, Taman Bayu Segar, 56100 Cheras, Federal Territory of Kuala Lumpur. The Facilities [7] At the request of the First Defendant, the Plaintiff approved a Term Loan Facility 1 amounting to RM15,000,000.00 (“Term Loan Facility 1”) to part finance up to 88.23% or RM15,000,000.00 of the purchase price of RM17,000,000.00 of a single-storey detached factory with a double-storey office annexed known as Lot 4, Jalan Sasa 25/146, Taman Sri Muda, Seksyen 25, Shah Alam, 40400 Shah Alam, Selangor, through the Plaintiff’s Letter of Offer dated 09.12.2022 (“the Letter of Offer”) subject to the terms and conditions stipulated therein. [8] The salient terms and conditions in the Letter of Offer for Term Loan Facility 1, inter alia, are as follows:

the First Defendant shall pay interest at the Plaintiff's Base Lending Rate (“BLR”) minus 1.85% per annum, calculated on a monthly rest basis, and the Plaintiff at its discretion may prescribe other rates at any time and from time to time; and

(ii) the First Defendant shall pay the Term Loan Facility 1 amounting to RM116,366.00 per month, inclusive of interest, for a period of one hundred and eighty (180) months until full settlement. [9] In line with the Letter of Offer, the Plaintiff has also approved Term Loan Facility 2 amounting to RM750,000.00 (“Term Loan Facility 2”), primarily, for the following purposes:

to finance Credit Level Term Assurance (CLTA) with Money Back Protector (“MBP”) of total premium not exceeding RM325,000.00 to cover the insured, the Second Defendant for ten (10) years and insurance policy is to be assigned to the

(ii) to finance Credit Level Term Assurance (CLTA) with Money Back Protector (MBP) of total premium not exceeding RM325,000.00 to cover the insured, the Third Defendant for ten (10) years and insurance policy is to be assigned to the Plaintiff; and

(iii) to finance Credit Level Term Assurance (CLTA) with Money Back Protector (MBP) of total premium not exceeding RM100,000.00 to cover the insured, the Fourth Defendant for ten (10) years and insurance policy is to be assigned to the Plaintiff. [10] The salient terms and conditions set forth in the Letter of Offer for Term Loan Facility 2 are as follows:

the First Defendant shall pay interest at the Plaintiff's BLR plus 0.00% per annum, calculated on a monthly rest basis, and the Plaintiff at its discretion may prescribe other rates at any time and from time to time;

(ii) the First Defendant is required to pay Term Loan Facility 2 amounting to RM8,540.00 per month, including interest, for a period of one hundred and twenty (120) months until full settlement. [11] Following, the First Defendant's acceptance to the terms and conditions stipulated in the Letter of Offer, the First Defendant executed the Facilities Agreement (For All Types of Facilities) dated 08.03.2023 (“Facilities Agreement”) subject to the terms and conditions set forth therein. [12] As security for Term Loan Facility 1 and Term Loan Facility 2 ( “the Loan Facilities”), a charge was executed over one (1) unit of a single-storey detached factory with a double-storey office annexed known as Lot 4, Jalan Sasa 25/146, Taman Sri Muda, Seksyen 25, Shah Alam, 40400 Shah Alam, Selangor, which is held under the Mukim Grant No. 10579, Lot No. 273, Klang District, Bukit Kemuning Town, State of Selangor, that was formalized through Deed of Charge No. 9355/2023, registered on 16.08.2023, via Form 16A and Charge (Annexure) (First Party) dated 12.07.2023 (hereinafter referred to as “the Charge”). [13] In addition to the Charge, and as further security for the Loan Facilities, the First Defendant also agreed to execute an Assignment of Contract Proceeds Agreement (First Party) and a Charge Over Cash Deposit Agreement (First Party), both dated 12.07.2023 (“the Security Agreements”). [14] In consideration of the Loan Facilities, a Guarantee dated 08.03.2023 (“the Guarantee Agreement”) was executed by the Second Defendant Third Defendant and the Fourth Defendant. [15] Pursuant to Guarantee Agreement, the Second Defendant, Third Defendant and Fourth Defendant jointly and severally guaranteed the payment, upon demand by the Plaintiff, of the entire outstanding amount of the Loan Facilities, along with any interest owed, and any costs, charges, and expenses, including legal expenses incurred by the Plaintiff in its efforts to recover all or any part of the guaranteed amount, and also to remedy any default made. [16] Further to the Letter of Offer, as an Additional Letter of Offer dated 28.12.2022 (“Additional Letter of Offer 1”) for Term Loan Facility 1, the Plaintiff approved a revision to the Plaintiff's BLR from 1.85% per annum, calculated on a monthly rest basis, to BLR minus 2.35% per annum, calculated on a monthly rest basis. [17] The Plaintiff then, through an Additional Letter of Offer dated 04.04.2023 (“Additional Letter of Offer 2”), agreed to the following terms:

to waive the requirement for Third Defendant to be insured;

(ii) the insurance type for the Second Defendant and the Fourth Defendant has been revised from CLTA to CRTA;

(iii) the premium amount for the Second Defendant and Fourth Defendant has been reduced from RM750,000.00 to RM195,000.00, as per the following breakdown: a) to finance CRTA together with MBP with a total premium not exceeding RM100,000.00, to cover the insured, the Second Defendant, for ten (10) years and the insurance policy is to be assigned to the Plaintiff; and b) to finance CRTA together with MBP with a total premium not exceeding RM95,000.00, to cover the insured, the Fourth Defendant, for ten (10) years and the insurance policy is to be assigned to the Plaintiff. The Breach [18] The First Defendant has refused, failed, and neglected to make the required payments, thereby breaching the terms and conditions of the Letter of Offer, the Agreements and the Additional Letter of Offer. [19] Despite repeated demands by the Plaintiff, the First Defendant has defaulted the agreed payments. [20] As a result of this default, the Plaintiff, through its solicitor, issued a Notice of Demand dated 10.05.2024, demanding payment from the Defendants of the outstanding arrears amounting to RM797,014.88 as of 30.04.2024 for the Loan Facilities. Additionally, the Plaintiff, through its solicitor, sent a Notice of Termination dated 06.06.2024 to the Defendants, demanding payment to the Plaintiff of the total outstanding amount of RM15,805,990.94 as of 04.06.2024 for the Loan Facilities. Triable Issues [21] In resisting the Plaintiff’s claim for summary judgment, the Defendants have raised the following issues which they claimed are triable and merits the matter going for trial:

the Defendants had no knowledge of the Charge, the Security Agreement, the Guarantee Agreement and the Additional

(ii) the Defendants had never received any Notice of Demand and Notice of Termination from the Plaintiff; and

(iii) the Defendants had never defaulted any repayment under the facilities to the Plaintiff. Court’s Considerations [22] At the outset, it is significant to note that the Defendants in the Statement of Defence (Enclosure 6) have made the following admissions;

The Defendants have acknowledged that Plaintiff had approved Term Loan 1 amounting to RM15,000,000.00 and Term Loan 2 amounting to RM750,000.00. The Defendants also acknowledged signing the Letter of Offer and are bound by its terms and conditions. Paragraphs 5, 6, 7 and 8 of Enclosure 6 is reproduced below:

Perenggan 6 Pernyataan Tuntutan adalah diakui setakat atas permintaan Defendan Pertama, Plaintif telah meluluskan Pinjaman Terma 1 berjumlah RM15,000,000.00 (selepas ini dirujuk sebagai *Kemudahan Pinjaman Terma 1 tersebut") melalui Surat Tawaran Plaintif bertarilh 9-12-2024 (selepas ini dirujuk sebagai "Surat Tawaran tersebut").

Perenggan-perenggan 7(a) dan 7(b) Pernyataan Tuntutan adalah diakui setakat terma-terma dan syarat-syarat Surat Tawaran tersebut.

Perenggan 8 Pernyataan Tuntutan adalah diakui setakat Plaintif telah meluluskan Pinjaman Terma 2 berjumlah RM750,000.00 (selepas ini dirujuk sebagai "Kemudahan Pinjaman Terma 2 tersebut").

Perenggan-perenggan 9(a) dan 9(b) Pernyataan Tuntutan adalah diakui setakat terma-terma dan syarat-syarat Surat Tawaran tersebut.

(ii) had signed the Facilities Agreement at paragraph 9 of Enclosure 6:

Perenggan 10 Pernyataan Tuntutan adalah diakui setakat Defendan Pertama telah menandatangani Facilities Agreement bertarikh 8-3-2024.

(iii) The Defendants have acknowledged the addresses of the First, Second, Third and Fourth Defendant’s in the Guarantee Agreement. Additionally, the Defendants have admitted that the Second, Third and Fourth Defendants are guarantors for the First Plaintiff (refer to Enclosure 6, paragraph 4):

Perenggan-perenggan 2 sehingga 5 Pernyataan Tuntutan adalah diakui. [23] It is the judgment of this Court that the issues raised by the Defendants have no merits at all. Each of these issues shall be considered below. Defendants had no knowledge of the Charge, the Security Agreement, the Additional Letter of Offer 1 & Additional Letter of Offer 2 [24] In the first place, the admissions from the Defendants that the Second, Third and Fourth Defendants are guarantors for the First Defendant and that that the Defendants had signed the Letter of Offer and the Loan Facilities Agreement (refer to Enclosure 6, paragraph 4 until paragraph 9) necessarily means that the Defendants are estopped from denying their knowledge of the Charge, the Security Agreement, the Additional Letter of Offer & Additional Letter of Offer 2. [25] Further, the Letter of Offer, the Facilities Agreements the Security Agreement, the Guarantee Agreements, the Additional Letter of Offer 1 and Additional Letter of Offer 2 and the Charge were all signed by the Defendants. Therefore, the Defendants' denial of knowledge in regard to these documents constitutes a bare denial, as the signatures undeniably belong to the Defendants and no issues have been raised concerning the authenticity of the signatures. The Defendants had never received any Notice of Demand and Notice of Termination from the Plaintiff [26] The Notices were duly served to the Second, Third and Fourth Defendants at their last known addresses as stated in the Guarantee Agreement signed by the Defendants. The proof of posting of the Notices was duly exhibited and can be found at pages 253 and 257 of Enclosure 11, Exhibit 13. [27] The Notice of Demand dated 10.05.2024 and a Notice of Termination dated 06.06.2024 (“the Notices”) were served by the Plaintiff’s solicitors to the First Defendant at its registered and business address registered with the Companies Commission of Malaysia (SSM) and the last known address as specified in the Facilities Agreement. [28] Section 15.26 of the Facilities Agreement stipulates that any notices by the bank may be delivered by registered post to the Defendants’ last known addresses and the notices will be deemed served on the fifth day from the date it was posted. Section 15.26

Any Notices that the Bank send to the Borrower may be:-

delivered by hand to the address of the Borrower as stated in this Agreement or such other address last known to the Bank; or

(ii) sent by post (registered, AR registered, ordinary or otherwise) to the Borrower as stated in this Agreement or such other address last known to the Bank; or

The Notices will be deemed/considered to have been received by the Borrower:-

at the time of receipt by the Borrower, if delivered by hand; or

(ii) on the fifth (5) day (Including the day of pasting) from the date it is posted; or [29] Section 10.07 of the Guarantee Agreement, which stipulates that any notice or demand, including computer-generated notices shall be given in writing to the Guarantor’s address by way of post and it will be deemed to have been given to the Guarantor in five (5) days after the date of posting: Section 10.07 NOTICES

Any notice, demand or other communication (including computer generated notices/statements that do not require signature) from the Bank under this Guarantee shall be given in writing to the Guarantor at the Guarantor's address, facsimile numbers or electronically (including email) as stated in the Schedule and/or last appearing in the Bank's records. The notices may be given or made by post, facsimile, electronically (including email, personal delivery or such other mode as may be determined by the Bank;

The notices or other communications are given to the

in the case of post, five (5) days after the date of posting;

In the case of facsimile, on the day of transmission;

in the case of electronic mail, on the day it is sent provided that the Bank has not received a failed or undeliverable message from the host provider on the date of transmission;

in the case of personal delivery, at the time of receipt; and

in the case of courier, at the time of receipt. [30] Accordingly, the contention that the Notices were not served is also devoid of any merits. The Defendants had never defaulted any repayment under the facilities to the Plaintiff [31] The Certificate of Indebtedness issued by the Plaintiff constitutes conclusive evidence of the Defendants' indebtedness, as expressly agreed by the Defendants in in Section 15.15 of the Facilities Agreement: Section 15.15 CERTIFICATE OF INDEBTEDNESS Any of the following shall bind the Borrower for any purpose unless there are obvious errors:-

any admission or acknowledgement in writing by the Borrower, or any Security Party, or by any person authorised on their behalf; or

a judgment (by default or otherwise obtained against any of them); or

a statement of account in writing showing the Indebtedness of the Borrower, or any Security Party, which Is duty signed by an officer or agent of the Bank; or

computer generated notices issued by the Bank which do not require signatures as to the amount of such balance and liabilities incurred or due to the Bank; or

the rate of interest or amount of interest payable. [32] Section 6.03 of the Guarantee Agreement stipulates that any statement of account issued by Plaintiff in regard to the outstanding amount shall be binding and conclusive except for obvious errors. The relevant section is as follows: Section 6.03 STATEMENT OF ACCOUNT Any statement of account issued by the Bank with respect to any Guaranteed Amounts outstanding shall be binding and conclusive except for obvious error(s). [33] The Defendants have failed to challenge the finality of the Certificate of Indebtedness and have not provided any evidence of manifest errors in the Certificate of Indebtedness in their defences. [34] No evidence was adduced by the Defendants at all to substantiate that they had made the repayments and had not defaulted as alleged. Conclusion [35] In the premises, the Plaintiff’s claims for summary judgment under Enclosure 10 is allowed with costs. Dated the 13th day of February 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Counsel for Plaintiff: Ms. Sharifah Nurashiqin binti Syed Alwi together with Mr. Ahmad Muqri bin Ahmad Fairoz (Messrs. Manjit Singh Sachdev Mohammad Radzi& Partners)

Counsel for Defendants: Ms. Syahana binti Azhari (Messrs. Nandrajog)

Companies Act 2016