Bank Kerjasama Rakyat (M) Berhad v Top Trident Traders Sdn. Bhd. (WA-24MFC-32-01/2023)

TOP TRIDENT TRADERS SDN BHD (Company No.: 771009-H) … FIRST DEFENDANT

TENGKU NGAH PUTRA BIN TENGKU AHMAD TAJUDDIN (No. K/P: 670317-10-5509) … SECOND DEFENDANT (INTERVENER) GROUNDS OF JUDGMENT

Enclosure 16 is an application by the First Defendant, Top Trident Traders Sdn Bhd (“D1”), for an order to stay the Originating Summons proceedings herein (Suit No. WA- 24MFC-32-01/2023) pending the determination and disposal of two related suits, namely Suit No. WA-22M-633-05/2023 and Suit No. WA-22M-88-01/2023 (“Suits 633 and 88”), and further for the conversion of the present Originating Summons to a Writ action and for consolidation of all three suits. The Plaintiff, Bank S/N 3cF3wPl4hEaawKuhDov7ZA Kerjasama Rakyat (M) Berhad, opposes both the stay and the conversion.

The factual matrix underlying these proceedings spans over a decade of financing, settlement, enforcement and litigation history. The Plaintiff is a financial institution which had provided an Istisna’ financing facility of approximately RM198 million to Radiant Splendour Sdn Bhd (“RSSB”) in 2008. The facility was secured by way of an absolute assignment over 80 condominium units in Palazzio Tower B, Kuala Lumpur.

Following a default in 2012, the Plaintiff and RSSB entered into a First Settlement Agreement dated 19 April 2013, wherein RSSB agreed to a full and final settlement sum of RM195,261,725.00, and authorised the Plaintiff to sell the condominium units at no less than RM700 per square foot. It is D1’s case that the Plaintiff breached this agreement by auctioning the units at 30% to 40% below the agreed price, thereby creating an artificial shortfall.

Despite the alleged breach, the Plaintiff obtained a Judgment in Default against RSSB on 29 April 2016 in Suit No. WA-22M-48- 03/2016. Subsequently, a Second Settlement Agreement dated 7 May 2021 was entered into between the Plaintiff, RSSB, certain guarantors and D1, who is a related company of RSSB. Under this agreement, the total settlement sum was reduced to S/N 3cF3wPl4hEaawKuhDov7ZA RM12.2 million, and D1 agreed to allow the Plaintiff to lodge a lien holder’s caveat over its property, the subject matter of the present Suit 32, as collateral security.

On 28 June 2022, the Second Defendant, Tengku Ngah Putra bin Tengku Ahmad Tajuddin (“D2”), paid a sum of RM1,100,000.00 as a 10% deposit for the purchase of D1’s property, which is the subject of the Plaintiff’s lien holder’s caveat. From this amount, RM770,000.00 was remitted to the Plaintiff.

D1 contends that by September 2022, only RM10.9 million remained outstanding, and that RSSB had tendered full payment via cheque, which the Plaintiff refused to accept without justification. Instead, the Plaintiff commenced the present Originating Summons on 26 January 2023 seeking an order for sale of D1’s land, and concurrently filed Suit 88 against the guarantors for over RM70 million.

In response, RSSB and the guarantors filed Suit 633 on 22 May 2023, seeking, inter alia, a declaration that the First Settlement Agreement is valid and binding, that the Plaintiff breached it, that the Judgment in Default ought to be set aside, and that the entire transaction be referred to the Shariah Advisory Council under section 56 of the Central Bank of Malaysia Act 2009.

On 21 June 2023, D1 sought an order to stay Suit 32 pending the disposal of Suits 633 and 88, together with an application S/N 3cF3wPl4hEaawKuhDov7ZA for the conversion and consolidation of all three suits. The hearing of this application was delayed for several reasons, including ongoing settlement discussions, the withdrawal of D1’s solicitors, intervener’s application to intervene (Enclosure 30), and intervener’s application to cross-examine the deponent of the Plaintiff’s affidavit (Enclosure 40).

Upon a careful consideration of the parties’ submissions, affidavit evidence, and cited authorities, I delivered my decision on 17 September 2025. I found that it was appropriate and necessary, in the interests of fairness, procedural efficiency, and to avoid a multiplicity of proceedings, to grant a stay of the current proceedings. However, I was not persuaded that the circumstances justified converting the Originating Summons into a Writ action or consolidating the suits. The Plaintiff has since filed an appeal on 7 October 2025 against the part of my decision granting the stay of the Originating Summons proceedings.

The application in Enclosure 16 addresses the following issues:

whether the Originating Summons proceedings should be stayed pending the disposal of Suits 633 and 88; S/N 3cF3wPl4hEaawKuhDov7ZA

(ii) whether the Originating Summons ought to be converted to a Writ action; and

(iii) whether the suits ought to be consolidated for joint trial. COUNSELS’ SUBMISSIONS

Defendant’s Submissions

Learned counsel for D1, Mr. Bhavanash Sharma A/L Gurchan Singh Sharma submits that the factual and legal issues in all three suits are inextricably intertwined, arising from the same financing facility, the same settlement agreements, and the same alleged breaches. It is argued that the question of whether any sum is truly owing to the Plaintiff cannot be determined without first resolving the validity of the First Settlement Agreement, the lawfulness of the auction sales, the rectification of the Judgment in Default, and the Shariah compliance of the transaction.

Counsel emphasises that D1, as a third-party security provider, faces irreversible prejudice if the order for sale is granted before these issues are adjudicated, as the subject land may be irretrievably disposed of. It is further submitted that the Plaintiff will suffer no prejudice from a stay, as its caveat remains on title and any loss can be compensated by interest. S/N 3cF3wPl4hEaawKuhDov7ZA

Counsel relies on the inherent jurisdiction of the Court under Order 92 Rule 4 of the Rules of Court 2012 (“the Rules”), and on authorities such as Kerajaan Malaysia v Jasanusa Sdn Bhd [1995] 2 MLJ 105 (CA) and Ling Peek Hoe & Anor v Golden Star & Ors [2020] MLJU 1233 (SC), to argue that the Court has wide discretionary powers to stay proceedings where necessary to prevent injustice or abuse of process.

(ii) Plaintiff’s Submissions

In opposition, learned counsel for the Plaintiff, Encik Mohd Munzeer bin Zainul Abidin contends that D1 has failed to establish the existence of special circumstances justifying a stay.

Dilating on this point, counsel argued that the Originating Summons is a summary remedy for enforcement of a contractual security, and that the Defendant’s liability is independent of the disputes between the Plaintiff and RSSB.

Counsel submits that D1 is bound by the terms of the Second Settlement Agreement, which is separate and distinct from the First Settlement Agreement, and that the validity of the Judgment in Default is res judicata as far as D1 is concerned.

Counsel further argues that the conversion to a Writ is unnecessary because there are no substantial disputes of fact requiring viva voce evidence, and that consolidation would only S/N 3cF3wPl4hEaawKuhDov7ZA cause delay and prejudice to the Plaintiff’s contractual right to enforce its security expeditiously. Reliance is placed on Chan Boi Loi v Public Bank Bhd and another application [2011] 1 MLJ 478 (FC) and Ahmad Amryn bin Abd Malek v Bursa Malaysia Securities Bhd [2021] 8 MLJ 948 (HC) per Anand Ponnudurai JC (as His Lordship then was), to argue that a lender is entitled to pursue all remedies concurrently and that mere overlap of facts is insufficient to justify consolidation based on Order 28 rule 8 of the Rules. COURT’S FINDINGS ISSUE 1: Whether the Originating Summons Proceedings Should be Stayed Pending the Disposal of Suits 633 and 88

At the outset, in addressing the first issue, I find the Plaintiff’s attempt to conflate a stay of execution with a stay of proceedings to be misconceived. As rightly submitted by D1’s solicitors, the Court of Appeal in Ling Peek Hoe & Anor v Golden Star & Ors (supra) has clearly delineated the distinction between the two, together with the differing legal thresholds governing them.

A stay of execution is intended to suspend the enforcement of a judgment pending appeal and is only granted upon proof of special circumstances, such as the risk of irreparable prejudice if execution proceeds. In contrast, a stay of proceedings serves S/N 3cF3wPl4hEaawKuhDov7ZA to pause the further conduct of a case, guided by considerations of procedural fairness, judicial economy, and the avoidance of unnecessary duplication or conflicting outcomes.

In this regard, further guidance can be drawn from the case of Alliance Bank Malaysia Berhad v Sureendhran Subramaniam & Anor [2021] 5 CLJ 362 (HC), where Tee Geok Hock JC carefully analyzed the applicable court rules and the decided authorities. His Lordship comprehensively summarized the principles governing the stay of court proceedings as follows: “[20] Based on the Rules of Court 2012 and the decided authorities of the appellate courts, the legal principles which can be gleaned therefrom in respect of stay applications can be summarised as follows:

There is a difference between a stay of execution of judgment or order pending appeal and a stay of court proceedings.

(ii) For stay of execution of judgment or order pending appeal, the legal principles applicable are laid down by the Federal Court in Kosma Palm Oil Mill (supra), the locus classicus on the subject.

(iii) The High Court has powers to order a stay of court proceedings in the following situations:

res judicata or multiplicity of proceedings: para. of the Schedule to the Courts of Judicature Act 1964;

inherent powers to prevent injustice or to prevent an abuse of the process of the court: O. 92 r. 4 of the Rules of Court 2012; Chip Chong Sawmill case (supra); and

temporary stay pursuant to case management powers of the High Court to give directions for smooth, expeditious and economical disposal of court proceedings: O. 34 r. 1(1)(b) and O. 4 r. 1 of Rules of Court 2012 S/N 3cF3wPl4hEaawKuhDov7ZA

(iv) The general powers of stay of proceedings under O. r. 1(1)(b) or O. 4 r. 1 of the Rules of Court 2012 are to be exercised in accordance with the guidance of the Court of Appeal’s decision in Ling Peek Hoe case (supra) who approved and accepted the English Court of Appeal’s decision in AB (Sudan) v. Secretary of State for the Home Department [2013] EWCA Civ 921, the English court in R (on the application of AO & AM) v. Secretary of State for the Home Department [2017] UKUT 168 (IAC) and the cases of Edelsten v. Ward (No 2) (1988) 63 ALJR 346) and PP v. Dato’ Sri Mohd Najib Hj Abd Razak [2019] 6 CLJ 561; [2019] 4 MLJ 421.” [Emphasis added]

The English Court in R (on the application of AO & AM) v Secretary of State for the Home Department [2017] UKUT 168 (IAC) referred to AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921 (CA) and stated as follows: “(i) Every claimant is entitled to expect expeditious judicial adjudication. The strength of this expectation will be calibrated according to the individual litigation equation.

(ii) The judicially imposed delay flowing from a stay order requires good reason.

(iii) Judicial choreography whereby one case is frozen awaiting the outcome of another is justified for example where the assessment is that the latter will have a critical impact upon the former.

(iv) Great caution is to be exercised where a stay application is founded on the contention that the outcome of another case will significantly influence the outcome of the instant case.” [Emphasis added]

Applying this test, I am satisfied that the facts of this case justify a stay of proceedings. The nub of D1’s application is not a mere S/N 3cF3wPl4hEaawKuhDov7ZA disagreement over quantum, but a fundamental challenge to the very existence of the debt. Suit 633 squarely raises the issue of whether the Plaintiff, by allegedly breaching the First Settlement Agreement and selling the condominium units at an undervalue, has already recovered or extinguished the debt. If the Court in Suit 633 finds that the Plaintiff’s conduct resulted in the debt being satisfied, or that the Judgment in Default was procured by breach of an earlier settlement and ought to be set aside, then the foundation of the present claim would collapse.

Conversely, if the order for sale is granted now and D1’s land is sold, D1 would suffer irreversible loss even if it later succeeds in Suit 633. The subject matter of this suit is not merely a monetary claim but an action in rem against D1’s land, and once sold, the land cannot be restored to D1. This is not a case where damages would be an adequate remedy; the prejudice is both real and irretrievable.

Moreover, the financing facility is stated to be based on Shariah principles, and Suit 633 seeks a reference to the Shariah Advisory Council. While this Court is not bound by such a reference, the possibility that the transaction may be found to be non-compliant with Shariah principles adds a further layer of complexity.

I also accept that the same solicitors act for the Plaintiff in all three suits, and that the same core documents and witnesses will be involved. There is a real risk of inconsistent findings if S/N 3cF3wPl4hEaawKuhDov7ZA Suit 32 proceeds in isolation. The Plaintiff’s reliance on the Second Settlement Agreement does not render the earlier disputes irrelevant, because the Second Settlement Agreement itself incorporates and builds upon the Judgment in Default and the alleged outstanding sum.

D1’s liability is thus inextricably linked to the validity of that judgment and the accuracy of the Plaintiff’s account. In these circumstances, I find that the balance of justice favours a temporary stay to await the outcome of Suits 633 and 88.

The Plaintiff’s interests are adequately protected by the subsistence of its lien holder’s caveat, and any interest it may lose can be compensated by an appropriate fortification as to damages or by an order for accelerated hearing.

Alternatively, even if this Court were to apply the tests of special circumstances or nugatoriness in determining D1’s application for a stay of proceedings, the outcome would remain the same i.e. the stay ought properly to be granted. This is because the continuation of the present proceedings, while Suits 633 and 88 remain pending, would serve little practical purpose and may lead to inconsistent findings on overlapping factual and legal issues. Proceeding concurrently risks duplicative effort, unnecessary expense, and the possibility of conflicting determinations, all of which would undermine the orderly administration of justice. A temporary suspension of this action, S/N 3cF3wPl4hEaawKuhDov7ZA therefore, best serves the interests of fairness, efficiency, and the avoidance of multiplicity of proceedings. ISSUE 2: Whether the Originating Summons Ought to be Converted to a Writ Action.

Moving to the prayer to have the Originating Summons converted to a Writ action, I am not persuaded that such conversion is necessary or desirable. The Originating Summons procedure is expressly designed for cases where the dispute can be resolved on affidavit evidence without the need for viva voce testimony. The core issue in Suit 32 is whether the Plaintiff is contractually entitled to an order for sale under the Second Settlement Agreement and the caveat.

D1’s defence is primarily legal and documentary: that the debt has been paid or extinguished, that the Plaintiff is estopped from enforcing the judgment, and that the caveat was wrongly lodged. These are matters which can adequately be determined on the basis of the contemporaneous documents and the affidavits already filed. There is no material dispute of primary fact warranting further cross-examination of witnesses beyond what was permitted in Enclosure 40, where cross-examination was confined to three broad factual issues.

The authorities cited by the Plaintiff, particularly Ho Yaw Ming v Ho Yau Hong [2021] MLJU 2271 (HC) per Adlin Abdul Majid JC (as Her Ladyship then was), affirm that where S/N 3cF3wPl4hEaawKuhDov7ZA contemporaneous documents are available, the Court should prefer them over oral evidence and should be slow to convert an Originating Summons to a Writ merely because a party raises factual assertions. To convert this matter to a Writ would only introduce unnecessary delay and costs, and would not assist in the just determination of the issues.

Further, while this Court had allowed D2 to intervene in the Originating Summons, it declined his parallel application in Enclosure 89 to convert the proceedings into a Writ action.

In respect of Enclosure 89, which was heard and decided in tandem with Enclosure 16, the Court held that although D2 was permitted to intervene, such participation does not confer an automatic right to alter the procedural form of the action. The primary basis for allowing D2’s intervention was to consider the sum of RM770,000.00 allegedly paid by him to the Plaintiff, and to determine whether he is entitled to recover that amount in the event that D1’s land is auctioned. The core issue, however, remains the Plaintiff’s claim to enforce the lien holder’s caveat, a matter properly brought by way of an Originating Summons under Order 83 rule 1 of the Rules.

Further, the Court was not convinced that the purported prejudice to D1 or D2, in the event conversion was denied, outweighs the overarching need to preserve procedural efficiency. D2 remains free to pursue any claim for specific performance and/or damages, if so advised, by initiating a S/N 3cF3wPl4hEaawKuhDov7ZA separate writ action. As for D1, its concerns are already encompassed within Suits 88 and 633. ISSUE 3: Whether the Suits Ought to be Consolidated for Joint Trial.

Similarly, I decline to order consolidation. While there are overlapping facts, the causes of action, the parties and the reliefs sought are distinct. Suit 633 is a plenary action by the borrower and guarantors against the bank for declarations, accounts and setting aside of judgment; Suit 88 is a claim by the bank against the guarantors for payment; and Suit 32 is a summary enforcement action by the bank against a third-party security provider for an order for sale. The procedural objectives of the Originating Summons i.e. speed and efficiency, would be defeated if it were to be subsumed into a multi-party Writ action with full pleadings, discovery and trial.

Under Order 4 rule 1 of the Rules, consolidation is a discretionary power which must serve the interests of justice and convenience. In the present case, consolidation would complicate rather than simplify the disposition of the matters. The Court can adequately prevent inconsistent findings by staying Suit 32 until the liability issues in Suits 633 and 88 are resolved, without the need for consolidation. S/N 3cF3wPl4hEaawKuhDov7ZA

For the reasons traversed above, I have made the following orders:

The Originating Summons proceedings in Suit No. WA- 24MFC-32-01/2023 is stayed pending the final determination and disposal of Suit No. WA-22M-633- 05/2023 and Suit No. WA-22M-88-01/2023;

The application to convert the Originating Summons to a Writ action is refused;

The application to consolidate Suit 32 with Suits 633 and 88 is refused; and

Cost in the cause. Dated: 14th November 2025 Yusrin Faidz Bin Yusoff Judicial Commissioner High Court of Malaya Kuala Lumpur S/N 3cF3wPl4hEaawKuhDov7ZA Counsel for the Plaintiff: Mohd Munzeer bin Zainul Abidin (Together with Adam Luqman bin Amdan, Syed Fadzil bin Hashim Al Habshi, Tengku Nazihah Hanis binti Tengku Abd Nawawi & Joycelyn Keziah A/P Victor George) Messrs Sidek Teoh Wong & Dennis, Level 16, Menara Bumiputra-Commerce, No. 11, Jalan Raja Laut, 50350 Kuala Lumpur. Counsel for the First Defendant: Bhavanash Sharma A/L Gurchan Singh Sharma (Together with Chetna A/P Brijmohan) Messrs Bhavanash Sharma No. 6, 2nd Floor, Block C, Wisma RKT, Jalan Raja Abdullah, Off Jalan Sultan Ismail, 50300 Kuala Lumpur. Counsel for the Second Defendant (Intervener): Smita S. Lakhiani (Together with Wahidah binti Bakhtiar) Messrs. Shaharudin Sham Sunder & Partners Unit No. A-9-5, 9th Floor, Block A, Megan Avenue 1, No. 189, Jalan Tun Razak, S/N 3cF3wPl4hEaawKuhDov7ZA 50400 Kuala Lumpur. CASE REFERENCE:

Kerajaan Malaysia v Jasanusa Sdn Bhd [1995] 2 MLJ 105

Ling Peek Hoe & Anor v Golden Star & Ors [2020] 9 CLJ

Chan Boi Loi v Public Bank Bhd and another application [2011] 1 MLJ 478 (FC).

Ahmad Amryn bin Abd Malek v Bursa Malaysia Securities Bhd [2021] 8 MLJ 948 (HC).

Alliance Bank Malaysia Berhad v Sureendhran Subramaniam & Anor [2021] 5 CLJ 362 (HC).

R (on the application of AO & AM) v Secretary of State for the Home Department [2017] UKUT 168 (IAC).

AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921 (CA).

Ho Yaw Ming v Ho Yau Hong [2021] MLJU 2271 (HC).

O.4 r.1, O.28 r.8, O.83 r.1, & O.92 r. 4 of the Rules of Court 2012. S/N 3cF3wPl4hEaawKuhDov7ZA