Aj Kasturi Sdn Bhd v 1. ) Pannirselvam A/L Mannar (BA-22NCvC-514-10/2018)

UZINANI BINTI MOHD SANI

NG SEE HUA

LEE PENG KOON

LEE LEONG HUAT

NG SOON TEAM

TEH HOCK CHUN

KHOO SAY POOW

EI KIAN SEONG (NO. K/P: 671221-10-5111) … 02/08/2024 15:33:48 BA-22NCvC-514-10/2018 Kand. 88 S/N YryUC7tzS06bc16Ta4w/ug

NG SEE HUA

LEE PENG KOON

LEE LEONG HUAT

NG SOON TEAM

KHOO SAY POOW

TEH HOCK CHUN

EI KIAN SEONG (NO. K/P: 671221-10-5111) …

AJ KASTURI SDN BHD

ANTHONY RAJ A/L AYAKARAM JOSEPH

KASTURI DEVI A/P SINNIAH

CATHERINE JOSEPH (NO. K/P: 620915-10-5888) … S/N YryUC7tzS06bc16Ta4w/ug (Mengikut Tuntutan Balas) Berikutan Perintah Mahkamah Tinggi Bertarikh 30.03.2121 di dengan bersama dan/atau dibicarakan pada masa sama dengan GUAMAN NO.: BA-22NCvC-502-10/2018 MA JOSEPH CAPITAL SDN BHD (No. Sykt: 1021499-A)

UZINANI BINTI MOHD SANI

EI KIAN SEONG (No. K/P: 671221-10-5111) … (Mengikut Tindakan Asal)

EI KIAN SEONG (No. K/P: 671221-10-5111)

MA JOSEPH CAPITAL SDN BHD (No. Sykt: 1021499-A)

ANTHONY RAJ A/L AYAKARAM JOSEPH (No. K/P: 690214-10-6005)

KASTURI DEVI A/P SINNIAH (No. K/P: 740602-08-6010)

CATHERINE JOSEPH (No. K/P: 620915-10-5888)

THERESA A/P AYAKARAM JOSEPH (No. K/P: 721217-10-5218)

MARY CHRISTA A/P JOSEPH (No. K/P: 610519-10-6476) … (Mengikut Tuntutan Balas) Berikutan Perintah Mahkamah Tinggi bertarikh 30.3.2021 di dengar bersama dan/atau dibicarakan pada masa dengan GUAMAN NO.: BA-22NCvC-514-10/2018 AJ KASTURI SDN BHD (No. Sykt: 890447-D)

UZINANI BINTI MOHD SANI

NG SEE HUA (No. K/P: 630702-10-5939)

NG SOON TEAM (No. K/P: 651026-10-5935)

KHOO SAY POOW (No. K/P: 650801-10-7997)

TEE JEN TONG (No. K/P: 600401-10-5997)

ABLE DYNAMIC TRADING SDN BHD (No. Sykt: 1082509-V) … (Mengikut Tindakan Asal)

NG SEE HUA (No. K/P: 630702-10-5939)

NG SOON TEAM (No. K/P: 651026-10-5935)

TEE JEN TONG (No. K/P: 600401-10-5997)

ABLE DYNAMIC TRADING SDN BHD (No. Sykt: 1082509-V)

AJ KASTURI SDN BHD (No. Sykt: 890477-D)

ANTONY RAJ A/L AYAKARAM JOSEPH (No. K/P: 690214-10-6005)

KASTURI DEVI A/P SINNIAH (No. K/P: 740602-08-6010)

CATHERINE JOSEPH (No. K/P: 620915-10-5888) … (Mengikut Tuntutan Balas) S/N YryUC7tzS06bc16Ta4w/ug JUDGMENT Preliminary [1] The court is tasked with determining the authenticity of the 16 Sale and Purchase Agreements between the Plaintiffs and the Defendants, referred to as the Purchasers, to ascertain whether they are legitimate agreements or merely a facade disguising moneylending transactions. [2] Whether the First and Second Defendants in the three lawsuits acted as agents of the Purchasers, thus facilitating illegal moneylending transactions. [3] What is the status of the Purchasers? [4] The Plaintiffs are seeking declarations that the sale and purchase agreements, memorandum of transfer, and deed of assignments for the transfer of the properties are sham, null, and void. [5] The Plaintiffs are also seeking an order that the transfer of the properties be set aside and further ordered to be transferred back to the Plaintiffs. [6] The Plaintiffs also seek the removal of caveats. [7] The Plaintiffs seek exemplary and/or aggravated damages. [8] The First and Second Defendants seek for the Plaintiffs' claim against them to be dismissed with costs. S/N YryUC7tzS06bc16Ta4w/ug [9] The remaining Defendants, in the three suits seek the following orders in their respective counterclaims:

delivery of vacant possession of the properties;

(ii) cancellation of the private caveats lodged by the Plaintiffs on the properties;

(iii) specific performance for the transfer of the properties;

(iv) stamp duties payment;

mesne profits;

general, exemplary, and/or aggravated damages. Background Facts [10] Under a Consent Order dated 30.3.2021, three legal suits were ordered to be heard together. They are as follows:

BA-22-NCvC-494-10/2018;

(ii) BA-22-NCvC-514-10/2018;

(iii) BA-22-NCvC-502-10/2018. [11] The involved parties mutually agreed that, for submission, any reference to pleadings and documents shall pertain to those filed in suit BA-22NCvC-494-10/2018 unless expressly stated otherwise or where the context indicates otherwise. S/N YryUC7tzS06bc16Ta4w/ug [12] The Plaintiffs in the cases BA-22NCvC-494-10/2018 and BA- 22NCvC-514-10/2018 are AJ Kasturi Sdn Bhd. In the case BA- 22NCvC-502-10/2018, the Plaintiff is MA Joseph Capital Sdn Bhd. (hereinafter referred to as the Plaintiffs). [13] The First and Second Defendants are the advocates and solicitors being sued under their practice of Tetuan Nurliny, Pannir Mannar & Co. (hereinafter referred to as the Defendants) [14] The rest of the Defendants are purchasers of the Plaintiffs’ properties. (hereinafter referred to as the Purchasers) [15] The Plaintiffs were the registered owners of 16 properties in the year 2014/2015 as follows:

Double-storey semi-detached corner house held under Geran 247355, Lot 114309, Mukim Klang, District of Klang and state of Selangor (“Land no. 1 Suit 494”);

(ii) Double-storey bungalow house held under Geran 77019, Lot 82544, Pekan Pandamaran, district of Klang and state of Selangor (“Land no. 2 Suit 494”);

(iii) Double-storey semi-detached house held under HSD 27090, PT 787, Pekan Teluk, district of Kuala Langat and state of Selangor (“Land no. 3 Suit 494”);

(iv) Double-storey semi-detached house held under HSD 27089, PT 786, Pekan Teluk, S/N YryUC7tzS06bc16Ta4w/ug district of Kuala Langat and state of Selangor (“Land no. 4 Suit 494”);

Double-storey terrace house (end lot) held under GM 7835, Lot 40342, Seksyen 31, Bandar Klang, Daerah Klang and state of Selangor (“Land no. 5 Suit 494”);

(vi) Double-storey semi-detached house held under Geran 320857, Lot No. 30826, Seksyen 2, Pekan Teluk, district of Kuala Langat and state of Selangor (“Land no. 6 Suit 494”);

(vii) Double-storey semi-detached house held under Geran 320858, Lot No. 30827, Seksyen 2, Pekan Teluk, district of Kuala Langat and state of Selangor (“Land no. 7 Suit 494”);

(viii) Single-storey house held under Geran 202894, Lot 53153, Seksyen 29, Bandar Klang, district of Klang and state of Selangor (“Land no. 8 Suit 494”);

(ix) Double-storey terrace house held under GM 3458, Lot No. 10283, Pekan Cheras, district of Hulu Langat, Selangor, held under MA Joseph Capital (“Suit 502 Land”);

Two-and-a-half-storey semi-detached house held under HSD 11183, PT 25058, Mukim Klang and GM 8151, Lot 25733, Mukim Klang, district of Klang and state of Selangor (“Land no. 1 Suit 514”);

(xi) Parcel No A-12-08, Car Park No. 7-9, measuring an area of approximately 1291 S/N YryUC7tzS06bc16Ta4w/ug square feet, held under freehold land Master Title HSD 78002, PT 3628, Mukim of Damansara, district of Petaling and state of Selangor (“Land no. 2 Suit 514”);

(xii) Kingview villa held under Strata Title No. PN7212/10/2/112, Lot no. 24732, No. bangunan M10, No. tingkat 2, No. petak 112, Pekan Kajang, district of Hulu Langat and state of Selangor (“Land no. 3 Suit 514”);

(xiii) An empty bungalow lot held under Geran 23215, Lot 6871, Mukim Tanjong Duabelas, district of Kuala Langat and state of Selangor (“Land no. 4 Suit 514”);

(xiv) A double-story corner house held under HSM 14312, PT 18009, Mukim Klang, district of Klang and state of Selangor (“Land no. 5 Suit 514”);

(xv) Single-storey house held under Geran 75888, Lot 10091, Seksyen 2, Pekan Teluk, district of Kuala Langat, Selangor (“Land no. 6 Suit 514”);

(xvi) A unit of flat held under Strata Title Geran 43064/M/24/79, Lot 33867, seksyen 24, bandar Klang, district of Klang and state of Selangor (“Land no. 7 Suit 514”). [16] From February to March 2014, the Plaintiffs stated that a loan application for RM5 million was purportedly made to Malayan Banking Berhad Kapar. S/N YryUC7tzS06bc16Ta4w/ug [17] However, the branch manager, Sadasivam Vadamalai, purportedly informed PW1 that the loan application had been rejected. [18] According to PW1's testimony, the branch manager recommended that he meet with the First Defendant, and he did so in the presence of Sadavisam Vadamalai. [19] During the meeting, PW1 informed First Defendant that he needed RM2 million. [20] According to PW1, the meeting was productive as the First Defendant arranged a loan for the Plaintiffs from funders subject to the following terms:

security in the form of property;

(ii) 3 months interest that would be deducted at source;

(iii) legal fees to be borne by the Plaintiffs, which will be deducted from the source;

(iv) The Plaintiff’s directors are to be present at the First Defendant’s office to execute relevant documents before the release of the loan. [21] On 14.5.2014, the Plaintiffs' directors signed all the relevant documents concerning property, No. 1 Suit 494, in the Defendants' firm. On or about 15.5.2014, the Plaintiff received RM1,745,000.00 from the First Defendant. [22] PW1 said the Plaintiffs allegedly paid monthly interest of RM80,000.00 to the First Defendant’s client’s account from August 2014 to November 2014. S/N YryUC7tzS06bc16Ta4w/ug [23] After that, the Plaintiffs needed additional funds, and arrangements were made on similar terms to the initial funding. [24] Concerning the additional loans, the Plaintiffs were asked to sign power of attorney and trust deed documents in addition to the sale and purchase agreement. [25] Additional properties were offered as collateral to ensure the continued payment of interest, as indicated by PW1. Over time, despite ongoing deductions attributed to interest by PW1, specific properties belonging to the Plaintiffs were purportedly transferred to the Purchasers without prior notification. The properties in question are listed below:

On 13.10.2017, Land No. 1 Suit 494 was transferred to D3, D4 and D5;

(ii) On 17.10.2017, Land No. 2 Suit 494 was transferred to D3, D5 and D6;

(iii) On 24.10.2017, Land No. 3 Suit 494 was transferred to D4;

(iv) On 30.10.2017, Land No. 4 Suit 494 was transferred to D7;

On 11.10.2017, Land No. 5 Suit 494 was transferred to D4;

(vi) On 6.10.2017, Land No. 6 Suit 494 was transferred to D8; and

(vii) On 6.10.2017, Land No. 7 was transferred to D3. S/N YryUC7tzS06bc16Ta4w/ug [26] PW1 mentioned that meetings were convened in 2017 to address the issue but were unsuccessful. Subsequently, the following properties were transferred to the Purchasers:

On 30.4.2018, Land No. 8 Suit 494 was transferred to D9;

(ii) On 9.7.2018, Land No. 1 Suit 514 was transferred from the Plaintiffs to D3 and D6;

(iii) On 1.6.2018, Land No. 4 Suit 514 was transferred from the Plaintiff to D6 Suit 514;

(iv) On 1.6.2018, Land No. 6 Suit 514 was transferred from the Plaintiff to D6 Suit 514;

On 8.5.2018, Suit 502 Land was transferred from the Plaintiff to D9 [27] The Plaintiffs alleged that the property sale transactions were a ploy to conceal illegal moneylending activities. [28] The First Defendant stated to be the solicitor for the Purchasers only. He said that his clients purchased the properties from the Plaintiffs with an Option to Purchase based on the following terms:

an Option to Purchase within 40 months from the dates of the transactions in monthly equal instalments;

(ii) the Plaintiffs to pay monthly legal/consultation fees; and

(iii) the Plaintiffs were entitled to continue to occupy the properties on monthly rentals. S/N YryUC7tzS06bc16Ta4w/ug [29] According to the First Defendant, this arrangement arose from PW1's intention to sell his company's properties to secure funds for property investments. At the same time, PW1 wanted to retain possession of the properties and repurchase them. It was alleged that PW1 was willing to pay rentals to occupy the properties. [30] The Plaintiffs have unequivocally defaulted on the monthly instalments and rental payments as agreed in the Option to Purchase terms, leading to the transfer of the properties to the purchasers. [31] All relevant stakeholders met to discuss property transfers. The Plaintiffs have engaged Messrs. Miranda & Samuel to explore potential buyback options. [32] During a meeting, DW2, with the consent of the other purchasers, agreed to delay the transfer of the remaining properties. This decision was made on the condition that PW1 would settle all outstanding dues of the monthly instalment payments and rentals. [33] PW1 once again defaulted on the payments, resulting in the transfer of the following properties to the Purchasers:

Property No. 6 Suit 494 transferred to Khoo

(ii) Property No. 7 Suit 494 transferred to Ng See Hua on 6.10.2017;

(iii) Property No. 5 Suit 494 transferred to Lee Peng Koon on 11.10.2017;

(iv) Property No. 1 Suit 494 transferred to Ng See Hua, Lee Peng Koon, and Lee Leong Huat on 13.10.2017; S/N YryUC7tzS06bc16Ta4w/ug

Property No. 2 Suit No 494 transferred to Ng See Hua, Lee Leong Huat, and Ng Soon Team on 17.10.2017, and

(vi) Property No. 3 Suit 494 transferred Suit No. 494 transferred to Lee Peng Koon on 24.10.2017. [34] Upon the request of PW1, a meeting was held at the Pappa Rich restaurant attended by the First Defendant, DW2, Sadasivam Vadamalai, Chen Soon Onn, Ng See Hua, Lee Peng Koon, Ng Soon Team, Teh Hock Chen and Tee Jen Tong. [35] In that meeting, PW1 informed that he had successfully secured a piece of land at North Port and was in a position to buy back all the transferred properties from the Purchasers. [36] The Purchasers agreed to PW1's proposal, subject to payment for the overdue monthly instalments and rentals. [37] The Defendants sent a letter to the Plaintiffs stating that the Purchasers were willing and agreeable to enter into a Deed of Revocation upon settlement of all payments due. It was further agreed that for properties that have yet to be transferred to the Purchasers, the buyback option will be conducted through revocation of the sale and purchase agreements. [38] All the outstanding payments by the Plaintiffs were to be settled by February 2018. [39] Upon receiving the Purchasers instructions, the First Defendant emailed the proposed draft Deed of Revocation to Messrs Miranda & Samuel on 8.2.2018. S/N YryUC7tzS06bc16Ta4w/ug [40] Again, the Plaintiffs defaulted on their payments. As a result, the First Defendant, acting on his clients' instructions, transferred all the remaining properties, except for four properties that were subjected to State Consent and could not be transferred. [41] The Purchasers consistently asserted that the property purchase transactions with the Plaintiffs were genuine sales, firmly denying involvement in illegal moneylending activities. Issues to be Tried [42] Common Agreed Issues to be tried in all Suits 494, 502, and 514 are as follows:

The question is whether the Plaintiffs have presented a valid and sustainable cause of action against the First and Second Defendants. Alternatively, do the Plaintiffs have a valid and sustainable cause of action against the First and Second Defendants?

(ii) Whether the sale and purchase agreements (and other related documents) represent genuine property sales transactions with a buy-back option, or if they are a sham to cover up illegal moneylending transactions and are intended as security for loans;

(iii) Whether the Purchasers/Defendants who have filed counterclaims are entitled to the reliefs sought against the Plaintiffs. S/N YryUC7tzS06bc16Ta4w/ug Analysis and Findings of the Court [43] Addressing the first issue, the Plaintiffs contended that the First Defendant, through his firm, was actively involved in the 16 sale and purchase transactions, which were illegal moneylending transactions. [44] The Defendants are alleged to be agents of the Purchasers in illegal moneylending transactions. [45] The Plaintiff's case against the Defendants is that the First Defendant acted as an agent within the definition of Section 2 of the Moneylending Act 1951. [46] It was further alleged that the First Defendant's taking up the role of an agent in the business of moneylending without a licence contravened Section 5 (1) of the Moneylending Act 1951, read together with 27(A) (1), 27 A (2), and Section 29 AA of the said Act. [47] The First Defendant was also alleged to have contravened Section 94(3)(j) of the Legal Profession Act 1976 for actively facilitating illegal moneylending activities and being paid for carrying out the alleged activities. [48] The Plaintiffs submitted they were denied legal representations as they were at the mercy of the First Defendant to urgently arrange for a loan facility to purchase land from the Selangor State Authority. [49] The urgency arose due to the Plaintiffs loan application to a bank being rejected. [50] The Plaintiffs pleaded a case against the Defendants in their professional capacity. S/N YryUC7tzS06bc16Ta4w/ug [51] The Defendants were said to have acted as agents for the Purchasers in all the 16 property transactions. [52] The Purchasers were allegedly unlicensed moneylenders. [53] The above allegations arose after four years of executing all the property transactions. [54] The undisputed fact before this Court is that the Plaintiffs' directors signed all the various documents involving the property transactions from time to time without protest. [55] Upon reviewing the submissions presented by the Plaintiffs, it has come to my attention that the Plaintiffs have neglected to address their pleaded case against the Defendants concerning Section 94(3)(j) of the Legal Profession Act 1976 and Section 5(1) of the Moneylending Act 1951, in conjunction with 27(A)(1), 27(A)(2), and Section 29AA of the Act above. [56] However, parties are bound by pleadings, and the Court is to pursue evidence in this case to analyse the pleadings accordingly. [57] It is evident from the evidence before this Court the Defendants were acting for the Purchasers and not the Plaintiffs. [58] The Plaintiffs' witnesses' assertion that they were compelled to execute the sale and purchase agreements and associated documentation because their loan application was declined is not substantiated. [59] The fact that a loan application was rejected was not the Plaintiffs’ pleaded case. S/N YryUC7tzS06bc16Ta4w/ug [60] At all material times, PW1 stated that a loan application had been made to the bank, and Sadasivam Vadamalai, the bank manager, advised him to seek the advice of the First Defendant. [61] The Plaintiffs’ pleaded case did not mention the First Defendant being the agent of the Purchasers. [62] The Purchasers were not mentioned as unlicensed moneylenders in the Plaintiffs' pleaded case. [63] The Plaintiffs narrated their version of facts in the statement of claim. They concluded by stating in paragraph 48 that the First Defendant was the agent acting for the Purchasers, who are illegal moneylenders under Section 2 of the Moneylending Act 1951. [64] In paragraph 49 (a), the Plaintiffs pleaded that the First Defendant acted as an agent for the Purchasers under the Moneylending Act 1951. [65] In paragraphs 49(ee) and (eee), the Plaintiffs pleaded that the First Defendant acted as an agent in unlicensed moneylending transactions in contravention of Section 5 (1) of the Moneylending Act 1951, read together with Sections 27 A (1), 27 A (2), and 29 AA of the said Act. [66] It is established law that offences of a criminal nature cannot be enforced by civil law means. [67] In the Supreme Court case of Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12, it was held as follows:

The basis of the respondent’s application for declaration in this case is the allegation of corrupt practice by the Prime Minister and two ministers. The issue raised relates to the S/N YryUC7tzS06bc16Ta4w/ug criminal law. It is unacceptable that criminal law should be enforced using civil proceedings for a declaration where the court’s power to grant that remedy is only at the discretion of the court.

(ii) Fundamentally, where a statute creates a criminal offence prescribing a penalty for the breach of it but not providing a civil remedy, the general rule is that no private individual can bring an action to enforce the criminal law, either by way of an injunction or by a declaration or by damages. It should be left to the Attorney General to bring an action either of his own motion or at the instance of a member of the public who relates the facts to him. [68] The principle enunciated in the Supreme Court case has been expressly recognised by the Court of Appeal decision in Shim Vui Geh v Dayang Masturah bt Sahari and another appeal [2024] 1 MLJ 755. [69] Justice Lee Swee Seng JCA held that the words of the sections are to be examined with caution, where there are words “any proceedings” that may relate to both civil and criminal proceedings but where a section relates to an offence solely criminal and governed by criminal proceedings. [70] The Plaintiffs pleaded the case against the First Defendant under Section 5, read together with Sections 27A (1), 27A (2), and 29 AA of the Moneylending Act 1951. [71] Section 27A (1), Section 27A (2), and Section 29AA of the Moneylending Act 1951 relate to criminal offences. S/N YryUC7tzS06bc16Ta4w/ug [72] Applying the principles of the case laws discussed above, Section 27A (1), Section 27(A) (2), and Section 29AA of the Moneylending Act 1951 do not apply to civil proceedings. [73] The rebuttable presumption under Section 29AA (2) Moneylending Act 1951 does not apply to the facts in this case. [74] Hence, the pleaded case against the First Defendant under Section 27A and 29 AA, Moneylending Act1951, is misconceived. [75] The Plaintiffs claimed that the Defendants had committed breaches under Section 94(3)(j) of the Legal Profession Act 1976. [76] Section 94 falls under Part VII of the Legal Profession Act 1976. [77] Section 94(1) of the Legal Profession Act clearly states that all advocates and solicitors are subjected to all disciplinary actions governed under the Disciplinary Board. [78] The Legal Profession Act 1976 does not expressly give the civil courts jurisdiction to address issues of an advocate or solicitor’s misconduct. [79] The Plaintiffs have not lodged a complaint against the Defendants with the Disciplinary Board regarding the 16 transactions. [80] Any misconduct must be brought to the attention of the Advocates and Solicitors Disciplinary Board and not before this Court under Section 94(3)(j) of the Legal Profession Act 1976. [81] To support my findings, I refer to the Federal Court decision in Tan Sri Dr Muhammad Shafee Abdullah v Tommy Thomas & Anor [2021] 6 MLJ 563, which held that the Disciplinary Board is to deal with all matters concerning the misconduct of advocates, solicitors, or pupils. S/N YryUC7tzS06bc16Ta4w/ug [82] Again, the Plaintiffs' case against the First Defendant failed under Section 94(3) (j) of the Legal Profession Act 1976. [83] The Second Defendant is irrelevant here; named for reasons known only to the Plaintiffs. [84] Moving on to the second issue, the Plaintiffs have portrayed themselves as victims targeted by the First Defendant and the Purchasers. [85] From the Plaintiffs' perspective, the First Defendant exploited their urgent need for funds to obtain money from the Purchasers, who were allegedly illegal moneylenders, leaving the Plaintiffs vulnerable to the First Defendant's control. [86] The Plaintiffs never denied signing the sale and purchase agreements, memorandum of transfer, and other relevant documents in the 16 transactions. [87] Their grievances were that they had been deprived of their property rights, which were securities in illegal moneylending transactions disguised as simple sale and purchase transactions. [88] The proposition of law relating to guidelines to identify a genuine sale and purchase agreement in comparison to an illegal moneylending transaction with interest charged was discussed in the Court of Appeal decision, Global Globe Property (Melawati) Sdn Bhd v Jangka Prestasi Sdn Bhd [2020] 6 CLJ 1. The guidelines are as follows: “[65] First, in the case of a document, the Court is not restricted to examining the four corners of the document. It may examine external evidence, This will include the parties’ explanations and circumstantial evidence S/N YryUC7tzS06bc16Ta4w/ug such as evidence of the subsequent conduct of the parties. [66] Second, as the passage from Snook makes clear, the test of intention is subjective. The parties must have intended to create different rights and obligations from those appearing from (say) the relevant document, and in addition, they must intended to give a false impression of those rights and obligations to third parties.” Option to Purchase [89] The Plaintiffs alleged that the Option to Purchase was an afterthought, a shred of fabricated evidence to disguise illegal moneylending transactions. [90] However, the First Defendant contended that there was always an Option to Purchase for all 16 transactions. The Plaintiffs' payments would be monthly instalments, rental payments as the Plaintiffs occupied the properties, and legal fees to be paid to the First Defendant. [91] The Plaintiffs refuted the First Defendant and the Purchasers contention as to the existence of the Option to Purchase as follows: Q: When is the first time that Defendant referred to the allegation of “Option to repurchase” or monthly rentals? S/N YryUC7tzS06bc16Ta4w/ug A: The Defendants first raised this allegation when they filed their defences in these proceedings.” (refer to PW1’s evidence at page 137, Enclosure 128) [92] Fabrication is a severe accusation. [93] The observation is that the Option to Purchase is in Part B in the Common Bundle of Documents. [94] It is trite law that documents in Part B are not challenged regarding their authenticity. The need is only to prove the contents. [95] The case law referred to is the landmark Federal Court decision in Jaafar bin Shaari & Anor (suing as administrators of the estate of Shafiah bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 3 MLJ 693. [96] The fabrication issue is conclusively unresolved by categorising the Option to Purchase in Part B, Common Bundle of Documents. [97] Looking at its contents, the main argument presented by the Plaintiffs was why the Option to Purchase remained unsigned by both the Plaintiffs and the Purchasers. [98] DW1 testified that the Plaintiffs (PW2 and Catherine) did not sign the Option to Purchase. [99] He further explained that the Option to Purchase benefited the Plaintiffs compared to the Purchasers. [100] The Plaintiffs adhered to the terms mentioned in the Option to Purchase, so there was no need to chase them to get it signed. S/N YryUC7tzS06bc16Ta4w/ug [101] The Plaintiffs' conduct in appointing Messrs Miranda & Samuel to buy back the properties in 2017/2018 strengthened the existence of the Option to Purchase. [102] The Purchasers also confirmed the Option to Purchase. [103] The Purchasers' conduct in lodging caveats in all 16 transacted properties also supported the existence of the Option to Purchase. [104] The caveats were to protect the Purchasers’ interests in the interim, pending the Plaintiffs' exercise of the Option to Purchase. [105] The Plaintiffs did not remove the caveats lodged by the Purchasers. [106] The Plaintiffs continued paying quit rent. [107] The Plaintiffs failed to prove that they entered caveats, although PW1 testified doing the same. [108] It is undisputed that six properties had been transferred to the purchasers by the end of October 2017. [109] In 2017, the Plaintiffs engaged Messrs Miranda & Samuel to negotiate the repurchase of the properties. [110] Suppose the 16 properties were used as securities for illegal moneylending transactions, as the Plaintiffs alleged. In that case, it is implausible that the Plaintiffs did not inform Messrs Miranda & Samuel about this. [111] Correspondence was taking place between Messrs. Miranda & Samuel and the First Defendant regarding the repurchase arrangements of the properties. S/N YryUC7tzS06bc16Ta4w/ug [112] In all the correspondences, there was no mention of illegal moneylending transactions or any challenge to the validity of the sale and purchase agreements. [113] This proved the Plaintiffs' actions were consistent with the Option to Purchase. [114] The negotiations between the plaintiffs and the purchasers for the buyback of the properties failed. (refer to page 92, Enclosure 135). [115] After over six months, PW1 filed police reports alleging that the 16 property transactions were illegal moneylending transactions disguised as sale and purchase transactions. [116] After carefully reviewing all the facts and evidence, I make a finding of fact that the Option to Purchase is not fabricated. Interest/Repayment of Loan [117] The word "interest" or "repayment of loan" does not appear anywhere in the documents. PW1 confirmed this fact. (refer to page 123, Enclosure 176). [118] The bank remittance slips issued by PW2 to the First Defendant described the payment as a "lawyer fee" (refer to pages 51–60 Enclosure 74). [119] The bank remittance slips from the First Defendant to the Plaintiffs describe transactions as "purchase price to purchaser, purchase price, the balance of purchase price, and S&P agreement" (refer to pages 51-60 Enclosure 74 and pages 12–15 Enclosure 186). S/N YryUC7tzS06bc16Ta4w/ug [120] PW2’s assertion that the company's 2014 audited financial statement recorded the received loans under “other payables and accruals” is questionable. This is because the statement does not explicitly mention loans or payments toward interest. [121] PW1 presented ID2 and ID3, which were purportedly handwritten notes of the First Defendant, as evidence of the existence of interest. The notes remained as ID. I do not consider them evidence in court. [122] I am perplexed as to why the Plaintiffs did not endeavour to present this piece of evidence, as it is significant in establishing the very existence of “interest.” [123] Based on the facts and evidence, I have determined there is no payment of loan or interest. Did the plaintiffs voluntarily sign the Sale and Purchase Agreements and Relevant Documents? [124] The Plaintiffs argued that they urgently needed funds because their bank loan application had been rejected, so they engaged in purportedly illegal moneylending transactions. [125] The fact that the bank loan application was rejected was not mentioned in their pleadings. [126] Parties are legally bound by their pleadings. This principle is discussed in the Court of Appeal decision in Tan Keng Yong & Another v Tan Hwa Ling @ Tan Siew Leng & Others [2022] 2 MLJ 805. [127] Unpleaded facts will not be taken into consideration. S/N YryUC7tzS06bc16Ta4w/ug [128] After a thorough review of the evidence, it is clear that the Plaintiffs (PW1 and PW2) fully understood the nature of the documents they signed. (See pages 26–40, Enclosure 186, and pages 14–15, Enclosure 178). [129] There is no evidence that PW1 and PW2 signed all the documents involuntarily. Therefore, this is not a valid issue. Total Sum of the Purchase Price Not Paid and Questionable Basis for Deductions at Source and Repayment by Plaintiff [130] The total purchase price was not paid to the Plaintiffs. The Plaintiffs alleged that it was a deduction at the source for interest and legal fees. [131] The First Defendant confirmed that RM255,000.00 was deducted from selling a property valued at RM2 million. The remaining balance of RM1,745,000.00 was promptly paid to the Plaintiffs. Similar deductions were applied to the remaining transactions. [132] The Plaintiffs submitted that the First Defendant failed to furnish evidence proving cash payment from his firm to the Plaintiffs. [133] The conduct of the First Defendant contravened Rule 8 of the Solicitors Account Rules 1990. [134] I accept the explanation given by the Defendants that there was no deduction at source. [135] The monthly instalments, rentals, and legal fees were deducted according to the terms of the Option to Purchase. [136] The defendants need not explain this to the Plaintiffs as it was within their knowledge. S/N YryUC7tzS06bc16Ta4w/ug [137] It is also undisputed that the Plaintiffs did not raise any grievances regarding the deductions at the relevant time. [138] The Plaintiffs' contemporaneous conduct speaks for itself: They knew the purpose of the deductions made. [139] The plaintiffs failed to plead the existence of a breach of Rule 8 of the Solicitors Account Rules 1990; consequently, I disregard this issue. Trust Deed and Power of Attorney [140] The Plaintiffs argued that trust deeds and powers of attorney need not be prepared. [141] It was their submission these documents were prepared to disguise the illegal moneylending transactions. [142] I accept the explanation given by the First Defendant that the purpose of preparing the trust deed and power of attorney was to protect his clients’ interests. Legal Representation [143] Due to the urgent need for funds and their reliance on the First Defendant to arrange funds, the Plaintiffs explained their decision not to appoint an independent advocate and solicitors. [144] The urgency of the situation was not proven at all relevant times. [145] I find no adequate evidence from the Plaintiffs that they were not allowed to appoint their lawyers. S/N YryUC7tzS06bc16Ta4w/ug [146] In reality, the recital of the Sale and Purchase Agreements did indicate that the Plaintiffs decided not to engage a separate advocate and solicitor to act on their behalf despite being advised to do so. [147] The fact that the Plaintiffs appointed Messrs. Miranda & Samuel to negotiate the buyback in 2017 proves that the Plaintiffs were always at liberty to seek legal representation. Delay of Transfer of the Properties [148] The Plaintiffs alleged that the delay of about 3 ½ years after the dates of the agreements' execution is consistent with their contention that it is indeed illegal moneylending transactions under the guise of ordinary sale and purchase transactions. [149] I consider the assertion above to be unfounded. [150] This is consistent with the terms of the Options to Purchase. It was agreed that all due payments would be settled in 40 months from the date of the Option to Purchase. [151] Moreover, the Purchasers' interests were protected, as they had entered caveats on the properties. [152] The Plaintiffs are simply speculating about the delay without evidence supporting their suspicions. Cash Purchase of Properties [153] The Plaintiffs submitted the total settlement for the purchase price of the properties, which is consistent with illegal moneylending transactions. S/N YryUC7tzS06bc16Ta4w/ug [154] The High Court of Pannir Selvam & Anor v Tan Chia Foo & Ors [2019] 1 LNS 2031 was referred. The principle, in that case, was that the Court took judicial notice that a 10% deposit is usually required for the down payment for a dwelling house, and the completion period is usually three months plus an additional month with interest. [155] I observed that the facts in the above-referenced case are entirely different from those of the cases before me. [156] It was a personal loan case with a single transaction, unlike our case, which involves multiple transactions. The Plaintiffs also brought up the issue of moneylending transactions. [157] Therefore, referring to the High Court case of Pannir Selvam & Anor v Tan Chia Foo & Ors [2019] 1 LNS 2031 is inaccurate. [158] In the case before me, the facts remained challenged, such as the Purchasers being businessmen. [159] The Purchasers had explained at length that all the transactions were purely commercial. [160] The Plaintiffs are property investors. [161] In similar property sales transactions, the Plaintiffs themselves had paid RM1.6 million upfront rather than the usual 10% deposit. [162] This evidence was from the transaction involving the Plaintiff, AJ Kasturi Sdn Bhd, and one Ghandi Rajan. [163] I have determined that the foundation of this submission is not acceptable for the reasons stated above. S/N YryUC7tzS06bc16Ta4w/ug Purchase Price not Compatible with Market Value of the Property [164] The Plaintiffs submitted that the properties were sold at a lower value than their market value. [165] The documents mentioned in their submission were found to be mostly irrelevant, except for one property, Property No. 7 Suit 494. This property was extensively detailed on pages 122 to 124 of Enclosure 74 and had a valuation of RM 626,000.00 in 2016. Interestingly, it was sold to the Purchaser in 2015, contrasting with the adjudication value established in 2016. [166] There are 16 transactions in total. Simply picking out one isolated property valuation a year after its sale and giving a blanket impression that all the properties were sold at a value below the market price is misconceiving. [167] The First Defendant, in their submission, has proved otherwise by showing evidence that the properties were sold to the purchasers at market values. [168] I have no grounds for accepting this fallacious claim. Adverse Inference under Section 114(g) of the Evidence Act 1950 [169] PW1 repeatedly mentioned Sadasivam Vadamalai as the person central to all transactions in this case. [170] However, that crucial witness was conveniently not called as a witness because he did not reside at the address where he was said to be living. S/N YryUC7tzS06bc16Ta4w/ug [171] No evidence was elicited to show what attempts were carried out to locate him. [172] At this juncture, I refer to the Supreme Court decision in Munusamy v. PP [1987] 1 MLJ 492, which held that to invoke section 114(g) of the Evidence Act 1950, the evidence must not only be relevant but must be material. [173] The evidence presented to me confirms that Sadasivam is a crucial witness in this case. [174] The reason he cannot be located is not convincing. No attempts had been made to the National Registration Department and Immigration Department to verify his whereabouts. [175] I am invoking adverse inference under Section 114 (g) of the Evidence Act 1950 against the Plaintiffs for failing to ensure Sadasivam's attendance. [176] The same goes for the failure to call Dato George Miranda, who was vital in negotiating the buyback arrangements for the properties. [177] After carefully considering all the evidence and adherence to the principles outlined in Global Globe Property (Melawati) Sdn Bhd v Jangka Prestasi Sdn Bhd [2020] 6 CLJ 1, it has been ascertained that the sixteen property transactions are indeed ordinary sale and purchase transactions. They do not align with the alleged illegal money-lending transactions asserted by the Plaintiffs. [178] Based on the existing documents and evidence, it is incontrovertible that the sale and purchase transactions were genuine, conclusively addressing the third issue. S/N YryUC7tzS06bc16Ta4w/ug [179] The Purchasers are typical businessmen whose primary interest is maximising profits. They consider the properties to offer sound investments. [180] Nowhere was there a hint of fraud or deceit in the conduct of the Purchasers. [181] There is no evidence before me that the First Defendant was an agent of the Purchasers carrying out illegal money lending transactions on their behalf. Conclusion [182] After carefully considering all the evidence and submissions from all parties involved, I dismissed the Plaintiffs’ claim with costs. [183] As the Defendants/Purchasers counterclaims against the Plaintiffs, they were allowed with costs and interest. The prayer for damages was disallowed. Dated: 2nd August 2024 (INDRA NEHRU SAVANDIAH) Judicial Commissioner High Court of Malaya Shah Alam, Selangor Date of Decision: 31 May 2024 S/N YryUC7tzS06bc16Ta4w/ug Counsels: For the Plaintiff: Dato’ Hariharan Tara Singh & Shazwani binti Mohd Zawawi, [Messrs Hahriharan & Partners] For D1 – D2: R. Thayalan, Nathanial Low Shern-Mi & Chong Lip Yi, [Messrs Robert Low & Ooi] For D3 - D6 & D8: Dato’ Ringo Low Kim Leng & Wan Nurfarah Izzah binti Wan Arifin, [Messrs Ringo Low & Associates] For D7 & D9: Mohd Faiz bin Abd Rahim, [Messrs Rastam Singa & Co.] S/N YryUC7tzS06bc16Ta4w/ug