Bank Kerjasama Rakyat (M) Berhad v Deepak Jaikishan S/O Jaikishan Rewachand (WA-22M-88-01/2023)

DEEPAK JAIKISHAN A/L JAIKISHAN REWACHAND

RAJESH A/L JAIKISHAN (NRIC NO.: 730805-14-5827) … DEFENDANTS GROUNDS OF JUDGMENT

In Bleak House, Charles Dickens began with a portrait of London “implacable November weather… the Lord Chancellor sitting in Lincoln’s Inn Hall,” a timeless picture of legal fog where truth and delay wrestle for supremacy. This case, though far removed in time and place, bears echoes of that struggle.

Though filed separately and at different stages of the proceedings, Enclosures 77 and 100 were heard together on account of their overlapping subject matter and shared legal principles. Both applications concern the Defendants’ pursuit of documents from the Plaintiff Bank, which they claim are necessary for the fair adjudication of the dispute. Enclosure 77 is brought under Order 24 rule 11 of the Rules of Court 2012 (“the Rules”), seeking an order for production and inspection of documents allegedly referred to in the Plaintiff’s pleadings. Enclosure 100, filed later, is brought under Order 24 rule 3 and/or Order 92 rule 4, and seeks specific documents related to the Plaintiff Bank’s internal decision-making process, particularly concerning the rejection of an extension of time under the Third Settlement Agreement.

The Court has considered the extensive written submissions filed by both parties, including the affidavits, exhibits, and bundles of authorities. The central legal questions that arise are whether the documents sought are properly referred to in the pleadings, whether they are relevant and necessary for the fair disposal of the case, and whether the applications are otherwise procedurally competent or amount to impermissible fishing expeditions. S/N Lftfvj/GUOGexFmj8swiQ

The underlying dispute arises from a debt recovery action brought by Bank Kerjasama Rakyat (M) Berhad (“Plaintiff”) against Deepak Jaikishan A/L Jaikishan Rewachand and Rajesh A/L Jaikishan (“Defendants”) as guarantors of an Istisna’ Financing Facility amounting to RM198,888,750.00 extended to Radiant Splendour Sdn Bhd (“RSSB”) for the purchase of 80 condominium units in a development known as Palazzio Tower B Condominium, situated on the Master Title held under Grant 14765, Lot No. 48629, Mukim and District of Kuala Lumpur.

Following RSSB’s breach and the entry of a default judgment, the parties entered into a series of settlement agreements. The first, dated 19 April 2013, required RSSB and the Defendants to pay RM195,261,725.00. When that failed, and after auctioning off most of the assigned properties, a second settlement was reached on 30 June 2016, for RM22 million. That too was not honoured. A third settlement agreement was eventually executed on 7 May 2021, under which the Defendants and RSSB agreed to pay RM12.2 million by 31 December 2021.

Despite extensions, the Defendants failed to pay. The Plaintiff then rejected a further request for an extension of time and, by a letter dated 17 November 2022, insisted on payment of the remaining RM10.13 million within seven days. When that was not met, the Plaintiff issued a final demand on 5 January 2023 S/N Lftfvj/GUOGexFmj8swiQ for RM70,183,143.03, representing the full outstanding amount under the original judgment and facility agreement.

The Defendants’ defence is that the termination of the Third Settlement Agreement was wrongful. They argue that the Plaintiff acted unreasonably in rejecting their request for an extension and failed to issue a formal notice of termination. They also allege that the Plaintiff acted in breach of a purported Ministerial direction and that its internal decision-making process lacked proper authority or quorum.

In the course of proceedings, the Defendants issued a Notice to Produce Documents Referred to in the Pleadings dated 3 October 2023 (Enclosure 43), requesting a wide range of documents including auction records, internal minutes, and calculations of the sums claimed. The Plaintiff provided some documents but declined to produce others, asserting that they were not referred to in the pleadings and were irrelevant. Dissatisfied, the Defendants filed Enclosure 77 on 14 August

Subsequently, on 21 May 2025, they filed Enclosure 100, seeking further specific documents, in particular the minutes of the Plaintiff’s internal meetings and its response to the Minister’s letter.

The hearing of Enclosure 77 was deferred due to ongoing settlement discussions between the parties, the discovery application in Suit No. WA-22NCVC-606-10/2023 (“Suit 606”) before Gan Techiong JC, and the striking-out proceedings in S/N Lftfvj/GUOGexFmj8swiQ Suit No. WA-22M-1515-09/2023 (“Suit 1515”) before me. Although now the subject of an appeal to the Court of Appeal, Suit 1515 was disposed of on 3 March 2025 (see Radiant Splendour Sdn Bhd & Anor v Dr Mohammad Hanis bin Osman [2025] 10 MLJ 310 (HC)). The application for further and better particulars in Suit 606 was determined on 10 October 2024, but this was followed by a striking out application brought by Top Trident Traders Sdn Bhd against the Plaintiff Bank for the alleged non-compliance with orders relating to particulars of the ‘Approving Authority’ who had declined the extension of time sought by RSSB. As a result of these intervening matters, six case management dates were fixed before Enclosure 77 was eventually heard on 20 August 2025, together with Enclosure 100.

On 2 September 2025, upon considering the submissions filed, I dismissed both enclosures with costs of RM4,000.00 each. The Defendants, being dissatisfied with that decision, filed their notices of appeal on the following day, 3 September 2025.

The Court identifies the following key issues:

Whether the documents sought are “referred to” in the pleadings within the meaning of Order 24 rule 10(1);

(ii) Whether the documents are relevant to the issues in the action;

(iii) Whether discovery is necessary for the fair disposal of the cause or for saving costs;

(iv) Whether the applications constitute fishing expeditions; and

Whether the applications are procedurally competent, particularly Enclosure 100 which is brought under the wrong rule. COUNSELS’ CONTENTIONS

Defendants’ Contentions

The learned counsel for the Defendants, Dato’ David Gurupatham contends that the documents sought are not only referred to in the pleadings but are also relevant and necessary for the fair disposal of the case. Dilating on this issue, counsel submitted that the relevant paragraphs of the Statement of Claim expressly “tell the story” of the auctions, the demand, the Approving Authority’s rejection and the final RM70,183,143.03 claim. Those narrative passages, so the argument runs, necessarily embrace the documents that gave them life, namely S/N Lftfvj/GUOGexFmj8swiQ the auctioneer appointment letters, attendance sheets, and the internal calculation spreadsheets.

Cases of Quilter v Heatley (1883) 23 ChD 42 (CA) and Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri Malaysia [2008] 3 MLJ 625 (CA) are invoked for the proposition that once a pleading “speaks” of a transaction, the court should lean in favour of inspection. Counsel contends that the Plaintiff’s failure to produce them constitutes a breach of its discovery obligations and amounts to a deliberate attempt to conceal evidence.

On the issue of relevance and necessity, counsel argues that the auction documents will reveal that the 2013 sales were conducted below the contractual floor price of RM700 per sq ft and thus reduced the recoverable sum. Further, it is contended that the calculation schedules will expose arithmetic errors that undermine the quantum now claimed. To support this, the Independent Investigative Accounting Reports are tendered as evidence that the documents, once produced, would “fairly lead” to a train of inquiry capable of destroying the Plaintiff’s case i.e. the test in Compaignee Financiere du Pacifique v Peruvian Guano Co. [1883] 11 QBD 55 (HC) as adopted in Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] 2 CLJ 581

With specific regards to Enclosure 100, counsel asserts although the notice cites rule 3, the opening words of the rule S/N Lftfvj/GUOGexFmj8swiQ (“the Court may at any time … order any party … to give discovery”) confer an untrammelled discretion once the documents are shown to be relevant and necessary, and that Order 92 rule 4 can be invoked cumulatively. The fact that the documents are specific rather than class-based is said to be a matter of form, not jurisdiction.

In particular, counsel argues that the following documents are relevant:

First Meeting Minutes – the Plaintiff’s own paragraph 13(c) of the Reply Affidavit admits the meeting occurred; its outcome is pleaded in paragraph 31 of the Statement of Claim, wherein production is therefore “automatic” under Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 (CA).

(ii) Teams Meeting Minute (28 Sept 2022) – the Plaintiff admits in paragraph 14 of its Reply Affidavit that the meeting took place and that the deponent attended. The minute is said to contain an instruction to back-date a consent letter, a breach of the Financial Services Act 2013 that goes to the validity of the termination.

(iii) Reply to Minister (26 Sept 2022) – the Plaintiff admits receipt (Reply Affidavit paragraph 15) and the Statement of Claim records the Minister’s handwritten note. The reply will demonstrate whether the Bank defied a statutory S/N Lftfvj/GUOGexFmj8swiQ direction under section 16 of the Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978, rendering its decision null and void.

Enclosure 100 also contained amendment contingency in that there is a prayer for leave to amend which is argued to be a pragmatic time-saving device. It is argued that if discovery reveals illegality, the Defendants should be permitted to plead it without the delay of a fresh application. Counsel argues that no prejudice is occasioned to the Plaintiff because the proposed amendments are already foreshadowed in the affidavits.

Counsel argues that the Plaintiff’s reliance on rule 7(4) is out of place as the Defendants are not seeking “specific discovery” in the technical sense but are invoking the Court’s inherent case-management power to prevent a miscarriage of justice. Alternatively, Counsel invites the Court to treat the notice as having been filed under rule 7 and to dispense with the prior general-discovery requirement on the ground that it is “necessary or desirable” to do so.

Counsel amplified the necessity factor by arguing that without the three documents, they are unable to particularise a pleaded allegation of ultra vires action; unable to resist the Plaintiff’s summary judgment application (Enclosure 13); and unable to complete their own counter-claim in Suit WA-22M-633-05/2023 (“Suit 633”) which has been ordered to be heard with this current suit.

(ii) Plaintiff’s Contentions

The learned counsel for the Plaintiff, Adam Luqman Amdan submits that the Defendants have not crossed the jurisdictional threshold. Counsel argues that none of the impugned paragraphs contains the lexical markers of direct reference such as “dated”, “signed”, “minute reference number” or “calculation attached”. It is submitted that the authorities cited by the Defendants, namely Quilter v Heatley (supra) and Day v William Hill (Park Lane) Ltd (supra), are distinguishable because in those cases the pleadings either exhibited or described the documents, which is not the case here.

On the issue of relevance, counsel stresses that the Defence is confined to contractual estoppel, namely want of notice and unreasonable rejection of payment. Allegations of regulatory breach, ministerial override or auction malpractice are entirely absent from the pleaded case. Discovery, counsel argues, cannot be used to introduce a new cause of action, as held in Tan Chin Seng and others v Raffles Town Club Pte Ltd [2002] 2 SLR(R) 465 (CA) and Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 (CA).

As to necessity, counsel argues that the Defendants’ affidavits disclose no positive evidence that the minutes lacked quorum or that the Minister’s hand-written note had binding effect. The applications are founded on speculation, couched in terms of S/N Lftfvj/GUOGexFmj8swiQ “might show” or “could reveal”. Such conjecture, counsel argues, amounts to speculative fishing.

Counsel further emphasises that procedural integrity must be preserved. Rule 7(4) is mandatory and the sequential scheme of the rules cannot be recast by judicial discretion. Amendment is argued to be a distinct jurisdiction; coupling it with discovery is an abuse of process, as illustrated in Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1992] 2 MLJ 851 (CA). COURT’S FINDINGS ISSUE 1: Whether the Documents Sought are “referred to” in the Pleadings Within the Meaning of Order 24 rule 10(1);

The power of this Court to order discovery is grounded in statute. Section 25(2) and Paragraph 14 of the Schedule to the Courts of Judicature Act 1964 (“CJA”) expressly confer upon the Court the authority to make such orders. Paragraph 14 further provides that this power must be exercised in accordance with written law or the applicable rules of court. It follows that the Court’s jurisdiction is not unfettered but must be invoked and exercised within the procedural boundaries prescribed by the Rules of Court 2012.

Within that framework, the doctrine of discovery has evolved into what may now be described as a three-tier sieve:

Referential nexus – is the document directly mentioned in a pleading or affidavit (Order 24 r 10)?

(ii) Relevance – does it relate to a fact in issue as disclosed in the pleadings (Order 24 r 3(4) / r 7(1))?

(iii) Necessity – is production necessary for the fair disposal of the cause or for saving costs (Order 24 r 8 & r 13(1))?

Each tier is jurisdictional; failure at any one is fatal. The applicant bears the evidentiary burden on every tier (Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421(CA), paragraphs 197 to 204).

The English Court of Appeal in Dubai Bank Limited v Galadari & Ors (No 2) [1990] All ER 890 (CA) makes the first tier especially stringent. Slade LJ’s statement that the court “is not clothed with jurisdiction” where the reference is merely inferential has been adopted verbatim by the Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Sdn Bhd & Ors (supra) and repeatedly applied in Syarikat Ying Mui Sdn Bhd v Yeh Ying Sdn Bhd & Anor [2003] MLJU 371 (HC), Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri Malaysia (supra), and S/N Lftfvj/GUOGexFmj8swiQ Selve a/p Renganathen v Sowbhagyavati a/ Renganathen & Ors [2020] MLJU 1865 (HC).

Applying these principles, none of the impugned paragraphs in the Plaintiff’s pleadings contains the lexical markers of direct reference such as “dated”, “signed”, “minute reference number”, or “calculation attached”. The paragraphs relied upon by the Defendants merely narrate events or outcomes without identifying or describing any underlying document, and this absence of clear textual linkage is fatal to the jurisdictional threshold under Order 24 rule 10(1).

The authorities cited by the Defendants, namely Quilter v Heatley (supra) and Day v William Hill (Park Lane) Ltd (supra), are distinguishable. In those cases, the pleadings either exhibited or expressly described the documents sought to be inspected, thereby satisfying the requirement of a direct and unmistakable reference. That is not the case here. A pleading that merely narrates an outcome, such as “the Approving Authority rejected the extension”, does not, without more, refer to the minutes of the meeting that produced that rejection. To hold otherwise would convert Order 24 rule 10 into a charter for roving inquiry, precisely the mischief the English Court of Appeal warned against. S/N Lftfvj/GUOGexFmj8swiQ ISSUE 2: Whether the Documents are Relevant to the Issues in the Action.

On the issue of relevance, the Defendants’ pleaded case in this Suit is contractual: the Bank is estopped because (a) no formal termination notice was issued, and (b) a post-dated cheque was unreasonably refused. Whether the Board enjoyed a quorum, or whether the Minister’s marginal note created an estoppel in public law, is outside the contours of that pleaded controversy. The Court is bound by the pleadings; allowing discovery to reshape the defence would subvert the function of pleadings as defined in Order 18 rule 8(1) and the overriding objective of proportionality (Order 92 rule 4). ISSUE 3: Whether Discovery is Necessary for the Fair Disposal of the Cause or for Saving Costs.

Even if relevance could be assumed, the Defendants have not demonstrated necessity. Discovery is not granted on the basis of bare relevance; the applicant must show that the documents are necessary for the fair disposal of the cause or for saving costs. It is important to stress that the term “necessity” cannot be equated with mere usefulness. The Singapore High Court in Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155 (HC), a decision subsequently approved in Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors (supra), emphasised that an applicant must S/N Lftfvj/GUOGexFmj8swiQ demonstrate how the document in question will directly support or contradict a particular factual proposition. Vague assertions that the minutes “may show” illegality or that auction attendance sheets “could reveal” fraud are precisely the “bare assertion of necessity” that Nantha Balan J (as His Lordship then was) rejected in Goo Saw Jin v Hwang Sze Yunn [2018] MLJU 367

In our case, the Defendants’ pleaded case is narrow: that the Third Settlement Agreement was wrongfully terminated because the Plaintiff Bank failed to give proper notice or unreasonably rejected payment. The documents sought, such as internal minutes or Ministerial letters, do not assist in resolving that contractual issue. Instead, they appear aimed at constructing a new defence based on public law or regulatory violations, which are not pleaded and are not material to the issues before the Court.

In any event, this Court has observed in Radiant Splendour Sdn Bhd & Anor v Dr Mohammad Hanis bin Osman (supra) that the ministerial hand-written notes on Radiant Splendour Sdn Bhd’s letters (23 Sept & 6 Oct 2022) were not a binding direction under Section 16 of the Bank Kerjasama Rakyat Act

Instead they were requests or suggestions, not commands. In any event Sections 4, 5(1), 6, and 14 of the Bank Kerjasama Rakyat Act 1978 as well as Sections 5 and 5A of the Development Financial Institutions Act 2002 unequivocally S/N Lftfvj/GUOGexFmj8swiQ assign responsibility for the bank’s operational and commercial decisions to the Board, not the Minister. ISSUE 4: Whether the Applications Constitute Fishing Expeditions.

The Court also concludes that both applications amount to fishing expeditions. The Defendants are not seeking to verify pleaded facts but are casting a wide net in the hope of uncovering material to support unpleaded allegations. When taken together, the applications seek every internal record that might, in some unspecified way, tarnish the Plaintiff Bank’s conduct: auctioneers’ mandates, attendance lists, valuation slips, board minutes, Ministerial correspondence, and breakdowns of successive demand figures. The width of the net, coupled with the absence of any pleaded case that turns on those documents, compels the conclusion that the Defendants are rummaging for a defence they have not yet formulated. That is the epitome of the vice identified in Tan Chin Seng and others v Raffles Town Club Pte Ltd (supra) and condemned by the Court of Appeal in Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors (supra): discovery is not a roving licence to rebuild one’s case. S/N Lftfvj/GUOGexFmj8swiQ ISSUE 5: Whether the Applications are Procedurally Competent, Particularly Enclosure 100 which is Brought Under the Wrong Rule.

Specific to Enclosure 100, Defendants’ reliance on Order 24 r 3 while seeking three pinpointed documents is not a mere technical mis-description; it is a fundamental mis-characterisation of the remedy. Rule 3 is a list-based, general discovery regime; rules 7 and 11 are particular-document regimes. Rule 7(4) erects a sequential barrier: specific discovery is unavailable until general discovery has been ordered. As per the case of Eco Horizon Sdn Bhd v Occupants of the Arulmigu Sri Maha Muthu Mariamman Temple & Ors [2022] 7 MLJ 697 (HC), the Court will not re-label an improperly framed application to cure that jurisdictional defect. Equally, the conditional prayer for leave to amend the Defence cannot hitch-hike on a discovery summons; the legal tests (bona fides, prejudice, timing, change of case) are alien to the discovery calculus and must be ventilated separately (see Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd (supra)).

The Court further observes that allowing these applications would create disproportionate prejudice. Granting access to thousands of auction records and internal board materials would inevitably derail the trial timetable, spawn collateral disputes on auction methodology, governance, and regulatory compliance, and transform a straightforward guarantee action into a sprawling inquiry into the Plaintiff Bank’s internal affairs. Such an outcome would be inconsistent with the overriding objective of ensuring that proceedings are dealt with expeditiously and at proportionate cost (Order 34 rule 1 and Order 92 rule 4).

As in Bleak House, where the fog of endless motions and interlocutory skirmishes consumed both time and purpose, these applications threaten to draw the present proceedings into similar procedural mists. The Court notes that the Third Settlement Agreement was concluded without any objection or reservation on the quantum of the debt or allegations of overcharging. At all material times, the Defendants did not dispute the amount claimed; their sole complaint concerned the Plaintiff’s refusal to grant a further extension of time to settle the agreed sum. The present applications, therefore, cannot be viewed in isolation. They form part of a broader attempt to reopen settled issues, undermine the conclusive evidence clause embodied in the facility agreements and guarantees, and mount a collateral attack on the default judgment already obtained. The Independent Accounting Reports relied upon are, at best, provisional assessments derived from incomplete data, S/N Lftfvj/GUOGexFmj8swiQ and they do not justify a forensic excavation of decade-old transactions. Seen in this light, the applications represent an effort to shift the evidential burden, delay the summary judgment hearing, and obtain through discovery what cannot be achieved through proper pleading.

For these reasons, the Court dismisses both the application filed on 14 August 2024 (Enclosure 77) and that of 21 May 2025 (Enclosure 100). The Defendants are to pay the Plaintiff costs of RM4,000.00 in respect of each application. Dated: 13th October 2025 -sgd-Yusrin Faidz Bin Yusoff Judicial Commissioner High Court of Malaya Kuala Lumpur S/N Lftfvj/GUOGexFmj8swiQ Counsel for the Plaintiff: Adam Luqman Amdan (together with Syed Fadzil Hashim Alhabshi, Tengku Nazihah Hanis, & Joycelyn Keziah) Messrs Sidek Teoh Wong & Dennis Advocates & Solicitors Tingkat 16, Menara Bumiputra-Commerce, 11, Jalan Raja Laut, 50350 Kuala Lumpur Counsel for the Defendants: Dato’ David Gurupatham (together with Bhavanash Sharma, & Chetna Brijmohan) Messrs Bhavanash Sharma No. 6, 2nd Floor, Block C, Wisma RKT, Jalan Raja Abdullah, Off Jalan Sultan Ismail, 50300 Kuala Lumpur.

Radiant Splendour Sdn Bhd & Anor v Dr Mohammad Hanis bin Osman [2025] 10 MLJ 310 (HC).

Quilter v Heatley (1883) 23 ChD 42 (CA).

Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri Malaysia [2008] 3 MLJ 625 (CA).

Compaignee Financiere du Pacifique v Peruvian Guano Co. [1883] 11 QBD 55 (HC). S/N Lftfvj/GUOGexFmj8swiQ

Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993]

Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 (CA).

Tan Chin Seng and others v Raffles Town Club Pte Ltd [2002] 2 SLR(R) 465 (CA).

Nguang Chan aka Nguang Chan Liquor Trader & Ors v Hai-O Enterprise Bhd & Ors [2009] 5 MLJ 40 (CA).

Mohd Azam Shuja & Ors v United Malayan Banking Corporation Bhd [1992] 2 MLJ 851 (CA).

Malaysia Debt Ventures Berhad v Platinum Techsolve Sdn Bhd & Ors [2020] MLJU 1421(CA).

Dubai Bank Limited v Galadari & Ors (No 2) [1990] All ER

Syarikat Ying Mui Sdn Bhd v Yeh Ying Sdn Bhd & Anor [2003] MLJU 371 (HC).

Selve a/p Renganathen v Sowbhagyavati a/ Renganathen & Ors [2020] MLJU 1865 (HC).

Bayerische Hypo-und Vereinsbank AG v Asia Pacific Breweries (Singapore) Pte Ltd and other applications [2004] SGHC 155 (HC).

Goo Saw Jin v Hwang Sze Yunn [2018] MLJU 367 (HC).

Eco Horizon Sdn Bhd v Occupants of the Arulmigu Sri Maha Muthu Mariamman Temple & Ors [2022] 7 MLJ 697 (HC), S/N Lftfvj/GUOGexFmj8swiQ

Order 18 rule 8(1), Order 24 rule 3, rule 7(4), rule 8, rule 10, rule 11, rule 13(1), Order 34 rule 1, and Order 92 rule 4of the Rules of Court 2012.

Section 25(2) and Paragraph 14 of the Schedule to the Courts of Judicature Act 1964.

Financial Services Act 2013.

Sections 4, 5(1), 6, 14 & 16, of the Bank Kerjasama Rakyat Malaysia Berhad (Special Provisions) Act 1978.

Sections 5 & 5A of the Development Financial Institutions Act 2002. S/N Lftfvj/GUOGexFmj8swiQ