Altratec Sdn Bhd v 1. ) Thong Young Koon (BA-23NCvC-60-12/2022)

Content

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN NO.: BA-23NCvC-60-12/2022 ANTARA ALTRATEC SDN BHD (NO. SYARIKAT: 200301018844 [621264-V]) − PLAINTIF

Lampiran

Lampiran 29 dengan kos sebanyak RM5000.00 (tertakluk kepada fi alokatur). [4] The plaintiffs (Thiagu and Chelvee) appeal to the Court of Appeal. [5] This judgment contains my reasons for allowing the 6th Defendant application to strike out the plaintiff’s claims in the counterclaim. The facts [6] In the chronology of events as stated in the affidavit affirmed by Ragunath A/L A. Kesavan laid down the following events: (a) the relationship between Altratec Sdn Bhd (the Plaintiff in the main suit and also the 1st defendant in the counterclaim) and Ragunath A/L A. Kesavan (the 6th Defendant in the counterclaim). (b) the purchase of the land belongs to Thong Young Koon. (c) Ragunath A/L A. Kesavan’s Letters to Thong Young Koon (the 1st Defendant in the main suit and also the 2nd defendant in the counterclaim). S/N dbwgNKGGxUevgic2WGsVtw (d) Letters of Demand from Ragunath A/L A. Kesavan to Thiagu and Chelvee. Relationship between Altratec Sdn Bhd and Ragunath A/L A. Kesavan: [7] Ragunath A/L A. Kesavan is the solicitor acting for his client, Altratec Sdn Bhd in purchasing one property that is a piece of land held under H.S. (D) 163686 PT No. 155311, Mukim Klang, Daerah Klang, Selangor. The vendor is Thong Young Koon who is represented by Messrs Puspalingam, Kasmani & Partners. Purchase of the land belongs to Thong Young Koon: [8] Thong Young Koon is the registered proprietor of a held under H.S. (D) 161721 PT No. 150549, Mukim Klang, Daerah Klang, Selangor. This is the Master Title and the land was subdivided into 2 pieces as follows: (a) H.S. (D) 163685 PT No. 155310 which is located in front and directly facing the public road known as Jalan Sungai Jati is belong to Thiagu and Chelvee. (b) H.S. (D) 163686 PT No. 155311 which is located at the back and requires access to and from Jalan Sungai Jati is belong to Altratec Sdn Bhd. [9] Messrs Kesavan is the solicitor acting for Altratec Sdn Bhd (purchaser) and Messrs Puspalingam, Kasmani & Partners is the solicitor acting for Thong Young Koon (vendor). S/N dbwgNKGGxUevgic2WGsVtw [10] As the vendor, Thong Youn Koon had represented to Altratec Sdn Bhd (purchaser) at the purchaser’s office and given the following facts: • PT No. 155310 was sold to Thiagu and Chelvee subject to Thiagu and Chelvee having agreed to irrevocably grant Thong Young Koon an access either on the left or right handside of PT No. 155310. • the Master Title of PT No. 150549 would be subdivided into 2 pieces of lands namely PT 155310 and PT 155311. The subdivision of the Master Title to be done by Thong Young Koon to the Selangor Land and mInes Office for approval. • after the subdivision of the Master Title, Altratec Sdn Bhd who bought PT 155311 will have 40ft for an access road located at the right handside of PT No. 155310. [11] Altratec Sdn Bhd has agreed to purchase PT 155311 on the basis that PT 155311 the land purchased must include the access road. [12] The Sale and Purchase Agreement (SPA) between Altratec Sdn Bhd and Thong Young Koon was executed and dated 31-12-2018. [13] At the point of entering the SPA, there was no existing caveat lodged by Thiagu and Chelvee. A copy of the land search is attached in the affidavit. S/N dbwgNKGGxUevgic2WGsVtw [14] The solicitor for the vendor had informed the 6th Defendant that the subdivision of the Master Title was successfully done. A copy of the vendor’s solicitor letter dated 17-9-2019 is attached in the affidavit. In the same letter, Messrs Puspalingam, Kasmani & Partners is the solicitor acting for Thong Young Koon (vendor) also informed the 6th Defendant that a caveat was lodged by Chelvee on 31-5-2019 on PT 155311. [15] In view of the caveat entered by Chelvee, both the purchaser and vendor of PT 155311 (Altratec Sdn Bhd and Thong Young Koon) agreed to enter into a supplementary agreement on 31-12-2019 on the following terms: (a) Thong Young Koon shall cause for the removal or withdrawal of the caveat within 14 days from the date of the supplementary agreement. (b) Thong Young Koon shall deliver for vacant possession of PT 155311 to Altratec Sdn Bhd within 30 days from the date of the supplementary agreement. Failing which, Altratec Sdn Bhd shall be entitled to a payment of RM10,000.00 per month until such time as vacant possession of PT 155311 is delivered to Altratec Sdn Bhd. (c) Altratec Sdn Bhd may proceed with the application for the conversion of the category of the use of PT 155311. A copy of the supplementary agreement is attached in the affidavit. S/N dbwgNKGGxUevgic2WGsVtw [16] On 14-1-2020, Messrs Puspalingam, Kasmani & Partners has notified the 6th Defendant vide a letter that the caveat entered by Chelvee was removed on 7-1-2020. Therefore, the 6th Defendant aver that PT 155311 is free from any caveat over the land and the access road. A copy of the vendor’s solicitor letter and the land search are attached in the affidavit. [17] Next action taken by the 6th Defendant is, on 19-2-2020, to obtain the financing facility for the purchase of PT 155311. The Memorandum of Transfer in respect of PT 155311 was given to the solicitor of HSBC Amanah Malaysia Berhad. [18] On 25-2-2020, PT 155311 including the access road was transferred and registered under the name of Altratec Sdn Bhd simultaneously and PT 155311 was charged under HSBC Amanah Malaysia Berhad. A copy of the land search is attached in the affidavit. [19] Altratec Sdn Bhd has paid the balance of the purchase price of PT 155311 to Thong Young Koon through the vendor’s solicitor. Ragunath A/L A. Kesavan’s Letters to Thong Young Koon: [20] Since the 6th Defendant has yet to receive the vacant possession and full access road of PT 155311 as stipulated in the SPA and the supplementary agreement, the 6th Defendant acted for its client (Altratec Sdn Bhd) has issued letters to the vendor’s solicitor demanding for vacant possession of PT 155311. S/N dbwgNKGGxUevgic2WGsVtw [21] Altratec Sdn Bhd has yet to receive the vacant possession and full access road of PT 155311. [22] The 6th Defendant aver that Thiagu and Chelvee had continues to be unlawfully and wrongfully blocked off the access road, Thiagu and Chelvee had also parked their lorries and stored equipment on PT 155311 without Altratec Sdn Bhd’s consent. Letters of Demand from Ragunath A/L A. Kesavan to Thiagu and Chelvee: [23] The new solicitor for Thiagu and Chelvee is Messrs. Govin T. Durai & Co. The 6th Defendant had issued letters of demand dated 19-8-2021, 10-9-2021, 9-11-2021, and 22-9-2022 in order to get the vacant possession of PT 155311 from Thiagu and Chelvee. No response given by Thiagu and Chelvee and their former and current solicitors. A discussion suggested by Altratec Sdn Bhd to resolve the matters amongst the parties also failed/Thiagu and Chelvee did not respond. [24] The 6th Defendant aver that Thiagu and Chelvee had failed, neglected, and refused to remove the blockades/fence to the access road and to remove all lorries and equipment on PT 155311. [25] On 1-12-2022, the 6th Defendant has acted for Altratec Sdn Bhd in filing the suit against Thong Young Koon, Thiagu and Chelvee. On 13-2- 2023 a notice of change of solicitors has been filed and served, the new solicitor for Altratec Sdn Bhd is Messrs Brendan Siva. The 6th Defendant is no longer the solicitor for Altratec Sdn Bhd. S/N dbwgNKGGxUevgic2WGsVtw The counterclaim filed by Thiagu and Chelvee [26] On 23-12-2022, Thiagu and Chelvee in their defence had also filed the counterclaim against Altratec Sdn Bhd, Thong Young Koon, Messrs Puspalingam, Kasmani & Partners, Kasmani bt Baharuddin, Pushpalingam, Ragunath A/L A. Kesavan and Pejabat Tanah dan Galian, Negeri Selangor. [27] In the counterclaim against the 6th Defendant, Thiagu and Chelvee pleaded that – (a) the 6th Defendant himself has recognized that in the SPA dated 31-12-2018 the access road as in the Master Title is belong to Thiagu and Chelvee. But the 6th Defendant has cheated, fraudulently, acted in malice and conspired with Messrs Puspalingam, Kasmani & Partners and other defendants in the counterclaim to enable Thong Young Koon to steal partly of Thiagu and Chelvee’s land and sold 3.0539 acres to Altratec Sdn Bhd. The valid portion of the land that can be sell to Altratec Sdn Bhd is only 2.77 acres. The reason is because on 31-12-2018, Thong Young Koon only owned 2.77 acres as per the Master Title (paragraph 111 in the counterclaim). S/N dbwgNKGGxUevgic2WGsVtw (b) in paragraphs 134 & 135 in the counterclaim, Thiagu and Chelvee spelt out the fraud committed by the 6th Defendant as follows (in its original text): 134. BUTIR-BUTIR FROD D-6: I. D-5 dalam Tuntutan Balas (TB), secara frod, penipuan, secara tersembunyi dengan niat jahat telah membenarkan D-1 dalam TB untuk membeli tanah seluas 3.0539 ekar termasuk 12,366,684 kaki persegi (40 kaki lebar x 309.1671 kaki panjang) milik Plaintif-Plaintif dalam TB kepada Defendan Pertama dalam tuntutan balas (Altratec Sdn Bhd) melalui perjanjian jual beli bertarikh 31.12.2018 walaupun D-6 dalam TB sepatutnya mengetahui berdasarkan pernyataan di preamble di perjanjian bertarikh 31-12-2018 bahawa D- 2 dalam TB telah menjual tanah seluas 2 ekar atau 320/1527 bahagian dalam “Hakmilik Induk” termasuk laluan akses 12,366.684 kaki tersebut kepada Plaintif-Plaintif dalam TB selaras dengan terma-terma di perjanjian 2006. II. D-6 dalam TB secara frod dengan niat jahat, muslihat, penipuan serta secara senyap-senyap memberi persetujuan kepada D-1 dalam TB untuk membeli 3.0539 ekar dari D-2 dalam TB dengan memasuki suatu perjanjian jual beli dengan D-2 dalam TB pada 31-12- 2018 dengan niat untuk membantu D-1 dalam TB mencuri dari Plaintif-Plaintif dalam TB tanah seluas S/N dbwgNKGGxUevgic2WGsVtw 12,366,684 kaki persegi (40 kaki x 309.1671 kaki) milik Plaintif-Plaintif dalam TB dan menjual bahagian akses seluas 12,366.684 kaki tersebut kepada Defendan Pertama dalam tuntutan balas (Altratec Sdn Bhd) walaupun D-6 dalam TB sepatutnya mengetahui dari pernyataan dalam preamble pada tarikh 31-12-2018 D- 2 dalam TB hanya mempunyai tanah seluas 2.77 ekar dalam hakmilik Induk kecil yang D-2 dalam TB berkebolehan untuk menjual kepada D-1 dalam TB. III. D-6 dalam TB secara frod dengan niat jahat, muslihat, penipuan serta secara senyap-senyap didapati mengizinkan D-1 dalam TB untuk memasuki suatu perjanjian pada 31-12-2018 tanpa memperoleh persetujuan daripada Plaintif-Plaintif meskipun dalam preamble perjanjian jual beli bertarikh 31-12-2018 dengan jelas menyatakan Plaintif-Plaintif telah membeli 2 ekar dari 4.77 ekar yang dimiliki oleh D-1 dalam TB melalui perjanjian jual beli bertarikh 24-11-2006 seterusnya D-6 dalam seharusnya mengetahui dari perkiraan asas (elementary calculation) bahawa hitungan 4.77 ekar tolak 2 ekar tidak boleh menjadi 3.0539 ekar melainkan D-1 dalam TB mencuri daripada Plaintif-Plaintif dalam TB tanah seluas 12,366.684 kaki persegi (40 kaki x 309.1671 kaki) oleh itu D-6 telah mengambil bahagian dalam aksi frod dan penipuan. S/N dbwgNKGGxUevgic2WGsVtw IV. D-6 dalam TB secara frod dengan niat jahat, muslihat, penipuan serta secara senyap-senyap tanpa pengetahuan Plaintif-Plaintif dalam TB membenarkan D-1 dalam TB untuk menambah lebar laluan akses sebanyak 10 kaki, dari 30 kaki lebar kepada 40 kaki lebar dan secara frod dan penipuan menjual kali kedua keseluruhan tanah laluan akses seluas 12,366.684 kaki persegi (lebar 40 kaki panjang 309.1671 kaki) tersebut kepada D-1 dalam tuntutan balas (Altratec Sdn Bhd) walaupun D-6 sendiri dalam preamble perjanjian bertarikh 31-12-2018 dengan jelas menyatakan laluan akses yang harus disediakan mengikut perjanjian bertarik 24-11-2006 adalah lebar 30 kaki sahaja dengan itu D-6 telah mengambil bahagian secara aktif untuk lakukan frod dan penipuan terhadap Plaintif-Plaintif dalam TB. V. D-6 dalam TB dengan niat jahat, muslihat, penipuan serta secara senyap-senyap dan tanpa pengetahuan Plaintif-Plaintif dalam TB secara frod dan penipuan mengizinkan D-1 dalam TB untuk menjadikan bahagian yang dicuri itu seluas 12,737 kaki dari Plaintif-Plaintif dalam TB ke dalam hakmilik H.S.(D) 163686, PT No.155311 Mukim Klang melalui satu proses pemecahan tanah (subdivision) yang dilakukan oleh D- 2 dalam TB (Thong Young Koon) tanpa pengetahuan dan persetujuan Plaintif-Plaintif dalam TB. S/N dbwgNKGGxUevgic2WGsVtw 135. BUTIR-BUTIR BERTINDAK SECARA BERKOMPLOT/KONSIPIRASI D-6 DALAM TB i. D-6 dalam TB melibatkan diri secara aktif untuk merancang dengan D-2 dalam TB supaya D-2 menjual bahagian seluas 12,366.684 kaki persegi milik Plaintif kepada D-1 dalam TB oleh itu D-6 dalam TB abaikan tanggungjawab sebagai peguam cara dan membenarkan D-1 dalam TB untuk memasuki suatu perjanjian bertarikh 31-12-2018 dan membeli secara haram tanah seluas 12,366.684 bukan milik D-2 dalam TB. ii. D-5 dalam TB setelah membantu D-1 dalam TB secara aktif untuk memasuki perjanjian jual beli bertarikh 31- 12-2018 dengan izin dan kerjasama D-2 dalam TB, mengizinkan D-2 untuk melakukan proses pecah bahagian hakmilk Induk kecil tanpa Pengetahuan Plaintif-Plaintif dalam TB untuk mengelakkan Plaintif-Plaintif dalam TB mengambil tindakan segera untuk mematahkan rancangan D-2, D-4, D-5 dan untuk membolehkan D-2 dalam TB menjual tanah laluan akses kali kedua untuk harga bernilai dan D-4, D-5 dan D-6 kongsi hasil haram tersebut. S/N dbwgNKGGxUevgic2WGsVtw iii. D-6 dalam TB setelah membantu D-1 dalam TB untuk memasukki perjanjian jual beli bertarikh 31-12-2018 mempengaruhi D-4 dalam TB, D-2 dalam TB melakukan proses pecah bahagian hakmilik Induk kecil sehingga tanah akses seluas 12,366.684 kaki persegi milik Plaintif-Plaintif dalam TB boleh dimasukkan ke dalam Hakmilk H.S.(D) 163686 PT 155311 Mukim dan secara kerjasama D-3 & D-4 dalam TB boleh didaftarkan atas nama D-1 dalam TB sekaligus mencapai Master Plan D-1, D-2, D-4 ,D-5 dan D-6 dalam TB. (c) Thiagu and Chelvee seek the following reliefs: i. a declaration that the 6th Defendant has breached rule 31 of the Legal Profession (Practice and Etiquette Rules 1978). ii. General Damages. iii. Additional Damages. iv. Exemplary Damages. v. Aggravated Damages. vi. interest on the judgment sum at the rate of 5% per annum calculated from the date of this judgment until the full payment of settlement. S/N dbwgNKGGxUevgic2WGsVtw vii. costs. Objections by Thiagu and Chelvee on the striking out’s application [28] The plaintiffs in the counterclaim had objected and opposed to the application to strike out the plaintiffs’ counterclaims against the 6th Defendant. [29] In the affidavit affirmed by Chelvee and the written submission by the learned counsel of the plaintiffs in the counterclaim, Thiagu and Chelvee strongly objected for their counterclaim against the 6th Defendant be struck out. The following facts showed that the dispute on the matters must be heard via a trial and not to be decided summarily under O. 18 r.19 of the Rules of Court 2012 by affidavit evidence alone: (a) the allegation against the 6th Defendant are fraud, theft, cheating and conspiracy that started off with the SPA dated 31-12-2018 prepared and approved by the 6th Defendant. (b) the act of cheating, fraud and conspiracy by all the defendants in the counterclaim has resulted in the theft of 12,366 square feet of land belonging to Thiagu and Chelvee worth millions of Ringgit. (c) the fact that the land is 12,366 square feet that is belonging to Thiagu and Chelvee had been registered under Altratec Sdn Bhd which is now his former client of the 6th Defendant. This fact is not denied by the 6th Defendant in his affidavit. S/N dbwgNKGGxUevgic2WGsVtw (d) the 6th Defendant’s affidavit only gave justification on his action to his client (Altratec Sdn Bhd) where Thiagu and Chelvee are not privy to the documents, hence warrants investigation vide the full trial. (e) the SPA was prepared by the 6th Defendant and the documentary evidences contained between the 6th Defendant and the solicitor of the vendor (Messrs. Puspalingam, Kasmani & Partners) are disputed and are serious issues to be tried. The SPA has deprived Thiagu and Chelvee of their land area of 12,366 square feet purchased from Thong Young Koon under the SPA dated 24-11-2006. (f) the 6th Defendant must prove his defence in a full trial. The counterclaim by Thiagu and Chelvee against the 6th Defendant is not plain and obvious to be struck out summarily. (g) the subdivision of the Master Title to 2 pieces of land was carried out by all the defendants in the counterclaim without Thiagu and Chelvee’s knowledge. The subdivision process itself was initiated from the SPA dated 31-12-2018 designed and approved by the 6th Defendant. The learned counsel for the plaintiffs stated “It is the spark that causes the fire.”. S/N dbwgNKGGxUevgic2WGsVtw (h) the objective for subdivision was set moving in the SPA dated 31-12-2018 with full participation of the 6th Defendant and the other defendants in the counterclaim. The SPA entered into by Altratec Sdn Bhd and Thong Young Koon stated that the Altratec Sdn Bhd will buy from Thong Young Koon a total area of 3.0539 acres of undivided share of land. However, in fact, Thong Young Koon is only capable of selling 2.77 acres and Thong Young Koon was keeping 2 acres as a bare trustee for the benefit of Thiagu and Chelvee under the SPA dated 24- 11-2006. The plaintiffs (Thiagu and Chelvee) refer to the solicitor of the vendor’s letter (Messrs. Puspalingam, Kasmani & Partners) and the preamble in the SPA dated 31-12-2018. (i) it is not possible for the 6th Defendant to approve the purchase of the land that was held in trust by Thong Young Koon for the benefit of Thiagu and Chelvee. This question cannot be resolved by way of reading the 6th Defendant’s affidavit but my go by way of a full trial. (j) as the 6th Defendant is not a stranger and not caught in surprise pertaining to the issue of 12,366 square feet being found its way into the property of Altratec Sdn Bhd that is the 6th Defendant’s client, therefore, the application to strike out the plaintiffs claim against the 6th Defendant must be dismissed. S/N dbwgNKGGxUevgic2WGsVtw [30] The cases cited by the the learned counsel of the plaintiffs in the counterclaim to support their objections, among others, are – • Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v. Karambunai Resortss Sdn Bhd (Formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996 1 MLJ 309, the Court of Appeal’s decision. • Siva Kumar Day v. alliance Life Insurance Malaysia Berhad & Anor [2021] 1 LNS 684, the High Court’s decision. • Bandar Builder Sdn Bhd & Ors v. United Malayan Banking Corporation Berhad [1993] 4 CLJ 7; [1993] 3 MLJ 36, the Supreme Court’s decision. • Tan Wei Hong (a minor suing through guardian ad litemand next friend Chuang Yin E) & Ors v. Malaysia Airlines Bhd and other appeals [2018] 9 CLJ 425; [2019] 1 MLJ 59, the Federal Court’s decision. The Law on Striking Out [31] The law on striking out is settled and provided in Order 18 Rule 19 (1) of the Rules of Court 2012 and in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36. S/N dbwgNKGGxUevgic2WGsVtw [32] This Court needs to decide whether the principles as held in Bandar Builder Sdn Bhd & Ors are met for the 6th Defendant’s application to strike out the plaintiffs’ counterclaim, namely – (a) it is only in plain and obvious cases that recourse should be had to the summary process under this rule. (b) when it can be clearly seen that a claim or answer is on the face of it ‘obviously unsustainable’. (c) if there is a point of law which requires serious discussion. (d) the court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. Evaluations and Findings of this Court [33] The issue to be decided is whether the plaintiffs’ counterclaim is “plain and obvious”, whether there is any credible evidence to prove the counterclaim as stated in the statement of counterclaim had occurred or not, in order for the plaintiffs to say there is a cause of action against the 6th Defendant. [34] Next, this Court must decide on the 6th Defendant’s application to strike out the counterclaim, whether the 6th Defendant is been protected under the provision of Order 18 rule 19 to protect him from vexed by hopeless litigation. S/N dbwgNKGGxUevgic2WGsVtw [35] In Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117, the Court of Appeal held − “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issue and expect the court to make out the case on its own for one party or other. … Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”. [36] The issues for this Court to determine in the counterclaim brought by Thiagu and Chelvee against one solicitor named, Ragunath A/L A. Kesavan are pertaining to the act done by Ragunath A/L A. Kesavan that 12,366 square feet being found its way into the property of Altratec Sdn Bhd that is the 6th Defendant’s client. [37] The 6th Defendant and the plaintiffs in the counterclaim has well-explained the fact about the land that is belong to Thong Young Koon. Thong Young Koon has sold his land to 2 purchasers namely, Thiagu and Chelvee as per the SPA earlier before Thong Young Koon sold the land to Altratec Sdn Bhd vide a SPA. Both of the solicitors for the purchaser and the vendor were named in this suit. [38] Thiagu and Chelvee denied the fact 12,366 square feet is belong to Altratec Sdn Bhd and therefore they had refused to let go 12,366 square feet to Altratec Sdn Bhd. S/N dbwgNKGGxUevgic2WGsVtw [39] Thiagu and Chelvee alleged that the 6th Defendant has fraudulently drafted the SPA and conspired with the other defendants specifically the vendor’s solicitor that had caused Thiagu and Chelvee been deprived of 12,366 square feet of the land they bought from Thong Young Koon. [40] Should this dispute be dealt with by way of affidavit evidences or calling of witnesses in a full trial? This Court after analyzing the affidavits filed by Ragunath A/L A. Kesavan finds that all the relevant documents contained in the SPA, land search, caveats entered into the land and correspondence between the solicitors. [41] Ragunath A/L A. Kesavan (the 6th Defendant) was “released and discharge” from this counterclaim filed by the plaintiffs (Thiagu and Chelvee) vide this interlocutory application. Will Ragunath A/L A. Kesavan (the 6th Defendant) been excluded from the full trial? The answer is “No”. In the main suit filed by Altratec Sdn Bhd (the 6th Defendant’s client and now his former client) against the vendor (Thong Young Koon) and Thiagu and Chelvee, the attendance of Ragunath A/L A. Kesavan is and will be the material witness for Altratec Sdn Bhd. Lets Ragunath A/L A. Kesavan gives his evidence pertaining to his role as the solicitor for Altratec Sdn Bhd in purchasing the land from the vendor (Thong Young Koon). Whilst, Thiagu and Chelvee were named as the 2nd and 3rd Defendants in the main suit due to their refusal to give the access road to Altratec Sdn Bhd. S/N dbwgNKGGxUevgic2WGsVtw [42] The relief seek by Thiagu and Chelvee in their counterclaim that Ragunath A/L A. Kesavan has breached rule 31 of the Legal Profession (Practice and Etiquette) Rules 1978 that “Every advocate and solicitor shall at all times uphold the dignity and high standing of his profession.” is the issue for this Court to resolve it in a full trial? This Court disagreed. [43] The affidavits and written submission as well as the defences filed by Ragunath A/L A. Kesavan are not merely justification for a solicitor to escape from the allegations claimed by Thiagu and Chelvee. [44] The 6th Defendant has detailed out his active role in dealing with the SPA that binds Altratec Sdn Bhd (purchaser) and Thong Young Koon (vendor). Since the land was also sold by Thong Young Koon (vendor) to Thiagu and Chelvee, the involvement of the vendor’s solicitor is also the played an important role. The information pertaining to the Master Title and then the subdivision of the title into 2 lots that are – (a) H.S. (D) 163685 PT No. 155310 which is located in front and directly facing the public road known as Jalan Sungai Jati is belong to Thiagu and Chelvee; and (b) H.S. (D) 163686 PT No. 155311 which is located at the back and requires access to and from Jalan Sungai Jati is belong to Altratec Sdn Bhd, must be dealt carefully by the 6th Defendant and Messrs. Puspalingam, Kasmani & Partners. Both solicitors speak in the same S/N dbwgNKGGxUevgic2WGsVtw language and nothing to cause any damage to their clients. The reasons for these can be extracted from the affidavit evidences stated by Ragunath A/L A Kesavan. [45] In allowing the 6th Defendant’s application under O. 18 r. 19 of the Rules of Court 2012, this Court did not at all look at the status of the 6th Defendant. Therefore, not only the 6th Defendant is flabbergasted but this Court totally reject the averment made by the plaintiffs in the counter claim that “this Honourable Court has no jurisdiction over Ragunath A/L A. Kesavan simply because he was the former President of the Malaysian Bar”. [46] Ragunath A/L A Kesavan has affirmed in his affidavit that – (a) the land purchased by his client (Altratec Sdn Bhd) from Thong Young Koon (vendor) is free from any encumbrances entered against the Master Title except one caveat entered by Tee Jen Tong on 7-9-2016. The caveat entered by Tee Jen Tong is recorded in Recital B (2) of the Altratec’s SPA. (b) there was no caveat entered by Thiagu and Chelvee at the time when Altratec’s SPA was signed. Therefore, there was no reason for Altratec Sdn Bhd to doubt the representation made by Messrs. Puspalingam that Thong Young Koon is the owner of 3.539 acres of land. Ragunath A/L A. Kesavan has produced and shown to Exhibit “RK-17” is a copy of the land search dated 23-1-2019. S/N dbwgNKGGxUevgic2WGsVtw (c) after the signing of SPA between Altratec Sdn Bhd and Thong Young Koon and due to the caveat entered by the plaintiffs (via Chelvee), a Supplementary Agreement dated 13-12-2019 was entered between Altrarec Sdn Bhd and Thong Young Koon where Thong Young Khoon had agreed to remove the caveat entered by the plaintiffs. (d) Altratec Sdn Bhd and Thong Young Koon had negotiated the terms before Ragunath A/L A. Kesavan was appointed as the solicitor for Altratec Sdn Bhd. (e) consistent with the terms of the SPA, Thong Young Koon had, at all times, maintained that Altratec Sdn Bhd will be purchasing 3.0539 acres of the Master Land (inclusive of the Access Road) from Thong Young Koon. In this regard, the parties had entered the SPA in good faith and with good consideration. [47] The explanation given by Ragunath A/L A. Kesavan is not merely a justification. This Court finds that Ragunath A/L A. Kesavan had clearly stated that in respect of the purported fraud or conspiracy, Thiagu and Chelvee had not least one single shred of evidence in support of any such allegations of fraud, cheat, theft and conspiracy done by Ragunath A/L A. Kesavan. S/N dbwgNKGGxUevgic2WGsVtw [48] In order for this Court to declare that Ragunath A/L A. Kesavan has failed to uphold the dignity and high standing of his profession as Altratec Sdn Bhd’s conveyancing solicitors and in advising Altratec Sdn Bhd of its rights as a purchaser, the burden of prove is upon Thiagu and Chelvee to prove what they assert against Ragunath A/L A. Kesavan. [49] The relationship between Ragunath A/L A. Kesavan and Altratec Sdn Bhd is a professional relationship whereby Ragunath A/L A. Kesavan only laid down all the terms that had been agreed upon by Altratec Sdn Bhd and Thong Young Koon and where this has led to the signing of the SPA. [50] This Court agree with the 6th Defendant that as the registered proprietor of the land, Thong Young Koon does not need Altratec Sdn Bhd’s or the 6th Defendant’s permission to carry out the subdivision of land. Thong Young Koon has the prerogative to do so. [51] The statement by the 6th Defendant that Thong Young Koon was responsible for the subdivision of the Land and Thong Young Koon had always maintained that the access road would be part of the land bought by Altratec Sdn Bhd did not at all to be used in this interlocutory application under O. 18 r. 19 Rules of Court 2012 but also a material statement to be proved in the main suit. S/N dbwgNKGGxUevgic2WGsVtw [52] Pertaining to the issue and/or the statement by Thiagu and Chelvee that Thong Young Koon held the portion of approximately 2 acres of land is subject to agreement to irrevocably grant the vendor an access measuring approximately 30 feet in width to the said Lot of the vendor’s Share of the said Master Land for the access road is consistent to the fact that Thong Young Koon has the liberty to sell the land to 2 different purchasers with the terms and conditions to be fulfilled by the purchasers including about the access road. [53] Whether the access road is “a big issue” raised by the plaintiffs in the counterclaim that the land bought by Thiagu and Chelvee had been stolen and move to Altratec Sdn Bhd’s property must be balance up with the issue whether Altratec Sdn Bhd can use and enjoy the land without the access road. [54] This Court finds that the reiteration by the 6th Defendant that at all times prior to when Altratec’s SPA was finalised, neither Altratec Sdn Bhd nor the 6th Defendant have ever been given a copy of Thiagu and Chelvee’s SPA will remain as it is. This Court will hear the verbal evidence supported with the documentary evidence from Ragunath A/L A. Kesavan, Thiagu and Chelvee in the trial of the main suit. [55] The evidence from Thong Young Koon is material in order to verify the total area of the land bought by Altratec Sdn Bhd. Is Altratec Sdn Bhd purchasing 3.0539 acres of the Master Land (inclusive of the access road) from Thong Young Koon or lesser area will be determined in the trial based on the SPA, layout plan and the evidence from the Selangor Land and Mines Office. S/N dbwgNKGGxUevgic2WGsVtw [56] The witness from Selangor Land and Mines Office also can assist this Court to understand whether after the approval for subdivision of the Master Title the access road shall be part of the Altratec Sdn Bhd’s land. [57] The allegations and purported fraud, conspiracy and/or cheating on the part of the 6th Defendant in respect of the access road can be presented by Thiagu and Chelvee as well as their learned counsel in the main suit. [58] In the main suit, Altratec Sdn Bhd has correctly named the parties involved and whether that Altratec Sdn Bhd in the main suit as the plaintiff or Thiagu and Chelvee as the plaintiffs in the counterclaim has or have any reasonable course of action against the remaining defendants will be resolved at the end of the trial. [59] As far as the 6th Defendant is concerned, and the counterclaim filed by Thiagu and Chelvee ought to be struck out at this stage. [60] The contents in the SPA and the Supplementary Agreement be that between Thiagu and Chelvee (purchasers) and Thong Young Koon (vendor) & between Altratec Sdn Bhd (purchaser) and Thong Young Koon (vendor) are remained intact and does not at all collapsed due to my decision in allowing the 6th Defendant’s application under O. 18 r. 19 of the Rules of Court 2012. S/N dbwgNKGGxUevgic2WGsVtw [61] In the case of Tractors Malaysia Bhd v. Tio Chee Hing [1975] 2 MLJ 1 it was held − “The power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with the utmost caution”. [62] In the case of Muniandy v. Tan Peck Soo & Ore [1990] 1 MLJ 502 where it is also trite that powers of the Court to strike out pleadings ought to be sparingly exercised and only in very exceptional cases. [63] This Court had scrutinized the pleadings that all the facts pleaded had revealed the following: (a) the counterclaim against the 6th Defendant are inadequately pleaded and failed to show valid causes of action against the 6th Defendant, and that this counterclaim against the 6th Defendant can summarily dispose of. (b) the 6th Defendant’s affidavit evidences together with the supporting documents had constitute a valid ground to summarily strike out the plaintiffs’ counterclaim. (c) the plaintiffs’ counterclaim against the 6th Defendant is vague and/or embarrassing as alleged and it appears that Thiagu and Chelvee had wrongfully initiate the action against the 6th Defendant. S/N dbwgNKGGxUevgic2WGsVtw [64] Thus, plaintiffs’ counterclaim against the 6th Defendant are defective and/or “obviously unsustainable” and the counterclaim do show that there is no reasonable cause of action against the 6th Defendant. Conclusion [65] In view of the foregoing, it is my judgment that having evaluated Enclosure 29 and its supporting documents, I find that the plaintiffs in the counterclaim had unsuccessfully establish that there is cause of action against the 6th Defendant. As such, I dismiss Enclosure 29 with costs. Dated: 30 September 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 S/N dbwgNKGGxUevgic2WGsVtw The Counsels: For the plaintiffs (Thiagu and Chelvee) in the counterclaim: Govin T. Durai Messrs. Govin T. Durai & Co., Klang, Selangor For the 6th Defendant: Sarah Chin Yuan Ching Messrs. Lim Chee Wee Partnership, Kuala Lumpur S/N dbwgNKGGxUevgic2WGsVtw