Bidari Ehsan Sdn Bhd (in Liquidation) v Inai Tropika Sdn Bhd (22NCVC-71-02/2014)

The Defendant (Inai Tropika Sdn Bhd) is a subsidiary of the Plaintiff similarly incorporated in Malaysia under the Companies Act

The Plaintiff is currently in liquidation pursuant to a High Court Order dated 14.4.2011. 3 [3] The Plaintiff claims against the Defendant for sums alleged still unpaid by the Defendant under a Sale and Purchase Agreement dated 31.7.2007 (“July Agreement”) which the Plaintiff has agreed to develop and the Defendant has agreed to purchase three parcels of land (“properties”) from Koperasi Belia Islam Malaysia Berhad (“KBIMB”) for a consideration of RM 9.3 million (which the Plaintiff is the beneficial owner of these properties pursuant to a Joint Venture Agreement (“JV”) dated 14.4.2000). (See pages 16 to 47 of the Common Bundle of Documents (“CBD”) for the July Agreement. [4] The JV is simply an agreement entered between the Plaintiff and KBIMB to develop the properties. KBIMB is the previous proprietor of the properties. [5] It is also an agreed fact in paragraph 6 of the Statement of Agreed Facts (Enclosure D) that KBIMB has granted the Plaintiff the right to develop the said properties into a mixed development project (“project”), sell the units of properties in the project and keep the proceeds from the sale. Thus, any proceeds from the sale of the 4 properties shall be ultimately paid to the Plaintiff. This is admitted by both the Parties. [6] The July Agreement is a continuance of the JV in that KBIMB and the Plaintiff agree to sell the properties to the Defendant. (See clause 2.01 of the July Agreement at page 21 of the CBD) [7] Mr. Augustine A/L T.K. James (PW-1) was appointed as the Plaintiff’s liquidator on 13.3.2013, after the demise of the first liquidator, one Mr. Sha Thiam Fook. As the Plaintiff’s liquidator, in the exercise of his duties to pull all the assets and liquidate the Plaintiff’s assets, the liquidator has identified that the Defendant remains to be the one of the Plaintiff’s debtor. This is mainly because the liquidator was unable to find any documents indicating that the Defendant has ever paid the purchase price pursuant to the July Agreement. [8] Alluding to the July Agreement, the salient terms agreed between the parties of the July Agreement are the following: 5 a. The Purchase price is RM9,300,000.00 (see Para 7 of the Preamble of the July Agreement at page 19 of the CBD; b. RM560,000.00 is deemed paid to the Plaintiff as deposit upon signing the July Agreement. (See Clause 3.01 of the July Agreement at page 22 of the CBD); c. the Balance purchase price of RM8,740,000.00 is to be paid to the Stakeholders within 90 days from the date of the July Agreement. (See Clause 3.01 of the July Agreement at page 22 of the CBD); d. the Defendant entered the July Agreement in full reliance of the representation, warranties and declaration made by the Plainitff and KBIMB. (See Clause 15.02 of the July Agreement at page 29 of the CBD); and e. there are no previous sale or agreements for the sale of the said properties or any part thereof which was still subsisting and which have not been validly and lawfully terminated at the 6 time the July Agreement is signed. (See para 15.01(e) of the July Agreement at page 29 of the CBD) [9] PW-1 as the liquidator then pursued to trace the status of the payment as per the July Agreement. Upon conducting a land office title search, the extracted Memorandum of Transfer, Form 14A (“MOT”) indicates that the properties were sold pursuant to the July Agreement. The MOT reads: “Sebagai balasan wang sebanyak RM9,300,000.00 yang dengan ini kami mengaku telah terima oleh BIDARI EHSAN SDN BHD…sebagai Pemaju di dalam Surat Perjanjian Jual Beli bertarikh 31.7.2007” [10] Clearly,at this early juncture that even the title of the properties indicate that the transfer of properties were conducted in pursuant of the July Agreement. [11] PW-1 then further traced the payment to the previous Solicitor who acted on behalf of the Defendant in the July Agreement. Upon 7 enquiry, the Solicitor had furnished the Plaintiff some documents, inter alia a Letter of Offer from KBIMB, bills, vouchers, receipts cheques, letters of instructions and letter of confirmation. [12] According to the document provided by the solicitor, it was found that firstly, the Defendant has directly paid RM1,300,000.00 to the Plaintiff. Thus, the remainder amount unpaid is RM7,440,000.00. This was confirmed vide numerous documents. All of these documents indicate that there is a differential sum which was paid by the Defendant leaving a balance of RM7,440,000.00. The remainder amount after deposit payment was RM8,740,000.00. The differential sum between RM8,740,000.00 and RM7,400,000.00 is RM1,300,000.00. (See solicitors’ letter dated 6.4.2012 at page 110 to 111 of the CBD; paragraph (e) of the solicitors’ letter dated 8.1.2008 at pages 115 to 116 of the CBD; Bank Deposit Slip and Cheque at page 135 of the CBD). [13] Secondly, the remaining unpaid sum of RM7,440,000.00 shall be paid vide the Defendant’s loan from KBIMB. (See Letter of Offer (“LO”) from KBIMB dated 5.11.2007 at page 52 of the CBD). The 8 Solicitors’ letter dated 6.4.2012 at page 110 to 111 of the CBD at paragraph 3 reads: “The amount of the Purchaser’s loan is RM7,440,000.00 only, a copy of the letter of offer dated 5 November 2007 is enclosed herewith as Appendix 3” See also paragraph (e) of the solicitors’ letter dated 8.1.2008 at pages 115 to 116 of the CBD; Bank Deposit Slip and Cheque at page 135 of the CBD for the relevant contemporaneous documents clearly proving this loan facility. [14] The Defendant’s solicitors confirmed that the loan facility has already been paid to them as stakeholder on behalf of the Defendant. It is the Plaintiff’s case that this loan amount paid to the Defendant’s solicitors ultimately was never paid to the Plaintiff as proceeds from the sale of the properties. [15] The Plaintiff claims only a portion of the remainder sum as it was only able to trace certain transactions paid using the Loan Facility to the 9 benefit of the Defendant vide two letters of instructions both dated 18.1.2008 (“instructions”). [16] The Defendant’s case however, is that allegedly there was a previous Internal Agreement prior to the July Agreement dated 12.2.2007 (“February Agreement”), which is the main agreement regarding the sale and purchase of the properties. According to this previous February Agreement, the agreed purchase price is a lower price of RM2,000,000.00. [17] It is the Defendant’s case that the February Agreement is the prevailing and applicable agreement on the grounds that the July Agreement was allegedly a sham to obtain a larger facility from KBIMB. [18] However, it is to be noted here that the Defendant’s submission on their case is somewhat bare and brief. [19] With the aforementioned facts in mind, it is this Court’s considered view that the pertinent issues to be determined are: 10

Whether the July Agreement a sham agreement to obtain facilities from KBIMB?

Which of the Agreements is the prevailing and applicable agreement dictating the terms of sale of the properties?

Whether the Defendant is liable to pay the Plaintiff the remainder sum unpaid pursuant to the July Agreement? ISSUE (a): WHETHER JULY AGREEMENT A SHAM AGREEMENT TO OBTAIN FACILITIES FROM KBIMB? Total absence of submission and evidence of sham [20] From the outset, and even more apparent in the Defendant’s barren submissions, the Defendant has not produced an inkling of relevant evidence to substantiate their allegation that the July Agreement is a sham. It is merely a bare allegation made by the Defendant. 11 [21] The Defendant’s case is merely that the July Agreement was a cloak to the February Agreement to obtain further facilities from KBIMB. However, there is a total absence of evidence of any concoction, mechanism or anything at all to draw an inference that the July Agreement was a sham. The July Agreement is a valid agreement executed by the Parties. There is no reason at all for the Court to infer otherwise. [22] There is no merit at all to the contention that the July Agreement was a sham merely because it is incoherent to the terms of the February Agreement. It is not uncommon that parties to a contract to enter into numerous contracts through a certain course of time in the pursuit to reach the finality of all terms agreed by the parties. Variations and differences between these contracts do not at any point in time indicate that the varying contract is a sham. [23] The onus lies on the Defendant to prove its assertion that the July Agreement is a sham. And the Defendant had failed to fulfil this onus of proof. Thus, as per Sections 102 and 103 of the Evidence Act 1950, this contention by the Defendant shall fail. This Court is guided 12 by the Federal Court decision in the case of International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 which has held: “According to sections 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or give evidence which is not sufficient, such party must fail” (See also Nanyang Development (1966) Sdn Bhd v How Swee Poh [1970] 1 MLJ 145) The July Agreement is marked as Part A document [24] Furthermore, the parties, particularly the Defendant has already admitted to both the authenticity and the content of the July Agreement as the July Agreement was marked as a Part A document. And the law is trite in this respect. In that, a document marked as Part A document cannot be put under scrutiny or be asked any question on. This Court finds valuable guidance from the Court of Appeal decision in the case of Raja Lob Sharuddin bin Raja Ahmad 13 Terzali & Ors v Sri Seltra Sendirian Bhd [2008] 2 MLJ 87 which has held: “…And if a document is put in bundle A, where the parties have agreed to its production and content, no party would be allowed to ask any question at all on that document…” [25] Thus, it is this Court’s considered view that the July Agreement is a valid enforceable agreement and is not a sham agreement. ISSUE (b): WHICH ONE OF THE TWO AGREEMENTS IS THE PREVAILING AND APPLICABLE AGREEMENT DICTATING TERMS OF SALE OF PROPERTIES? [26] This Court does not really have to look beyond the written terms of the July Agreement to determine this issue. The terms of the July Agreement itself are sufficiently self-explanatory that it supersedes any previous agreements prior to the execution of the July 14 Agreement. Nevertheless, for the sake of completeness, the Court shall also briefly delve into other evidences to the same effect. Clause 15.01(e) of the July Agreement is sufficiently clear and no proof of revocation is required. [27] It is trite law in the interpretation of contracts that the Court as far as possible must take the literal interpretation of the contract in respecting the parties’ autonomy in agreeing to the terms of a particular contract. If the words utilised in the contract is sufficiently clear in its literal meaning, there is really no reason at all for the Court to look beyond the plain meaning of the written words of the Contract. [28] It is sufficiently clear from a plain reading of Clause 15.01(e) of the July Agreement that the July Agreement supersedes, nullifies, invalidates any previous agreements had in relation to the sale of the properties. The Clause reads: “The Developer and Proprietor hereby jointly and severally covenant, warrant and undertake to the Purchaser that:-… 15

that there are no previous sale or agreement for the sale of the said Property or any part thereof which are still subsisting and which have not been validly and lawfully, terminated or rescinded…” [29] It is sufficiently clear from the clause above that it is the intention of all parties (especially the Defendant) of the July Agreement that there shall be no prior or previous agreement which remains valid or subsisting upon the execution of the July Agreement. [30] This Court is guided by the case of Syarikat Binaan Utara Jaya ( A Firm) v Koperasi Serbaguna Sungei Glugor Berhad [2009] 2 AMR 50, Abdul Malik Ishak, JCA from the available authorities had in para 17 of the Court of Appeal’s judgment, with regard to construction of a contract where the language employed is clear, had made the following propositions: “(a) the Court must give effect to the plain meaning of the words, no matter how distasteful the result may be (The Central Bank 16 of India Ltd. Amritsrar v. The Hartford Fire Insurance Co. Ltd. [1965] AIR Vol. 52, 1288 SC);

where the language in the document is unambiguous and clear, the real nature of the document is to be determine solely by looking at its contents, uninfluenced by any intention of the parties ((Nawab Major Sir) Mohammad Akbar Khan v. Attar Singh and Others [1936] AIR Vol. 23, 171 PC);

when the minds of the parties are expressed in an unambiguous manner, the Court cannot override the declared intention of the parties unequivocally expressed (K. Appukuttam Panicker and Another v. S.K.R.A.K.R Athappa Chettiar and Others [1966] AIR Vol.53, 303 Kerala); and

there is no scope, at all, for drawing upon hypothetical considerations or the supposed intention of the parties when the words contained in the contract are clear and unambiguous (The Union of India v. Kishorilal Gupta and Bros. [1959] AIR Vol. 46, 1362 SC).” All other contemporaneous documents indicate that the July Agreement is the prevailing and applicable contract 17 [31] Even the MOT stipulates that the consideration for the transfer of the Land to the Defendant was for the consideration of RM9,300,000.00 (which is coherent to the terms of the July Agreement). [32] The Defendant has never produced any proof that the RM2,000,000 consideration is the relevant consideration in realising the transfer of the said properties. [33] The Defendant’s solicitor’s letter dated 6.4.2012 has already admitted that the amount of Purchaser’s loan is RM7,440,000.00. (Which is the remainder sum after deducting the deposit payment as per the July agreement and also the direct payment of RM1,300,000.00 to the Plaintiff) [34] The LO also stipulates that the value of the properties shall not be less than RM9,300,000.00. Clause 13.0 (E) reads (see page 56 of the CBD): “A valuation report over the “Property 1” and “Property 2” to be pledged as security, addressed to the Bank by a valuation firm on the 18 Bank’s panel has been submitted. The valuation report shall confirm that the value of the properties on “as is where is” basis not less than RM9.3 million” [35] The “Notis Taksiran Kekal Selepas Rayuan Duti Setem Pindah Milik Hartanah” (“Assessment Notice”) dated 18.1.2008 from the Inland Revenue Board stipulated that the market value at the time was RM11,838,000.00. (See pages 68 to 69 of the CBD). Thus, it makes no commercial sense that the Plaintiff would sell the properties for RM2,000,000.00 which is approximately five times lower than the market value of the properties. [36] The Defendant’s former Chief Executive Officer, Haji Shaharom bin Haji Mohd Yusof has also confirmed through paragraph 8 of his Statutory Declaration dated 13.1.2012 (“SD”) that the actual consideration for the properties was RM9,300,000.00 which is coherent to the July Agreement. 19 [37] Thus, with the plain reading of the July Agreement, and the numerous contemporaneous documents above, it is indeed very compelling that the July Agreement supersedes the February Agreement. The Plaintiff’s may rely on the SD without calling the maker of the SD [38] In its desperate attempt to concoct a defence, the Defendant fallibly submitted that the Plaintiff ought not to be allowed to rely on the SD as such reliance without calling the maker of the SD is hearsay evidence and is inadmissible. The Defendant even urged the Court to draw an adverse inference under Section 114(g) of the Evidence Act 1950 for their failure to call the maker to testify on the SD. [39] This Court wholly disagrees with the Defendant’s contention. The objection is totally is unwarranted. The contention by the counsel for the Defendant is clearly erroneous in light of established law and practice. The parties here have included or placed the SD as a “Part B” document in the Common Bundle of Documents (”CBD”), in which the authenticity of Part B Documents are never an issue. It is trite law that documents marked as Part B document, need not be verified by 20 calling the maker of the document in order to make the document admissible. There is no requirement for the Plaintiff to call the maker of the document in “Part B” in order for the Plaintiff to be allowed to rely on the SD as the authenticity and existence of the document is admitted and is undisputed. Now, when the Rules of Court 2012 (ROC 2012) came into force on 1.8.2012, the legal position of Part B documents is settled. Order 34 r. 2 of the ROC 2012 states in clear terms that documents in “Part B” are documents where its authenticity is not disputed but only the contents are disputed. [40] In the present case only one Bundle of Documents was filed by both parties namely the CBD. This CBD comprises of Part A and Part B documents only. The SD was placed as Part B document and was referred by the Plaintiff during the trial when PW-1 gave evidence. I refer you to the page 105-107 of the Common Bundle of Documents. What document is this? This is a Statutory Declaration affirmed by Haji Shaharom bin Haji Mohd Yusof on 13.1.2012. Who is Haji Shaharom bin Haji Mohd Yusof? He is the former Chief Executive Officer of the Plaintiff. 21 Why did Haji Shaharom bin Haji Mohd Yusof affirm this Statutory Declaration? This Statutory Declaration was made and affirmed by him after he met Mr. Sha Thiam Fook. He wanted to disclose that the Plaintiff is a wholly owned subsidiary of the Defendant and as such the Defendant had total control of the Plaintiff at the material time. What else had he disclosed to the previous Plaintiff’s Liquidator, Mr. Sha Thiam Fook? Among others he had also disclosed the following information:

The Plaintiff’s shareholders’ sold their entire 1,000,000 shares in the company to the Defendant and the Defendant took over the management and control of the Plaintiff from 1.1.2007.

(ii) The main shareholders of the Defendant at the material times were one Datin Hasnah binti Wahab and her daughter Norhazwani Hanis binti Datuk Dr Ismail. Both of them are the wife and daughter of the late Prof. Datuk Dr. Ismail Md. Salleh.

(iii) Upon the Defendant taking over the Plaintiff, the Defendant appointed 2 new directors in the Plaintiff’s board of directors to replace the then directors. The 2 new directors are Mohd Fahmin bin Zakaria and Irwan Hanis bin Ismail, who are respectively the nephew and son of the late Prof. Datuk Dr. Ismail Md. Salleh. [41] The Defendant had not at any point of time disputed or challenged the contents of the SD at the trial. 22 [42] Based on the above grounds, the Defendant must be precluded from raising an objection that the Plaintiff must be disallowed to rely on the SD. It is this Court’s judgment that the Plaintiff ought to be allowed to place reliance to the SD. The Plaintiff has never admitted that the Defendant no longer owes monies to the Plaintiff. [43] The Defendant very briefly submits that the Plaintiff’s witness, which is the Defendant’s solicitors have admitted that there were no longer sums due by the Defendant to the Plaintiff. Nonetheless, this Court highlights that the Defendant has taken this supposed admission out of its original context. [44] The admission is only in the context of the instruction. The admission is not on the amount due but merely in the disbursement of the monies (from the loan granted) based on the instruction. What PW-2 meant was, only to the extent of the instruction, there was no monies indicated (on that instruction) to be payable to the Plaintiff. 23 [45] Never at any point in time was that admission was intended to apply in an encompassing manner to cover the sums still owed by the Defendant. Accepting the instructions does not denote acquiescence or foregoing the remainder sum unpaid [46] The Defendant’s other contention was that the disbursement of the loan facility received is also on the Plaintiff’s instruction and thus, the Plaintiff has deemed the payment has been received when the monies were disbursed according to its own instruction. [47] Although the instructions were never objected to by the Plaintiff, the instructions merely prove that the Plaintiff allows the monies to be disbursed in that manner at that point in time. [48] It never proves that the affirmation of such payment is a deeming act of receipt, acquiescence or foregoing of the balance purchase price. 24 [49] Albeit it is allowed, there’s nothing from the instruction that indicates that the Plaintiff deems the balance of the purchase price is paid in allowing the numerous disbursement, or that the Plaintiff will no longer pursue the balance purchase price. Ultimately, the Plaintiff still intends to be paid as proceeds from the sale of properties. Never at any point in time that the Plaintiff intended to impart with this right to claim for the payment of the remainder sum. [50] Thus it is this Court’s considered view that the July Agreement clearly is the prevailing and applicable agreement dictating the term of sale of the properties. It is also this Court’s decision that there is no requirement at all for the Plaintiff to prove that the February Agreement has expressly been revoked to make way to the July Agreement. ISSUE (c): WHETHER THE DEFENDANT IS LIABLE TO PAY THE PLAINTIFF THE REMAINDER SUM UNPAID PURSUANT TO THE JULY AGREEMENT? 25 [51] It naturally entails that upon the subsistence and enforcement of the July Agreement, the Defendant is indeed liable to pay the Plaintiff the remainder sum unpaid. [52] It is clear from the Plaintiff’s case that their claim for the remainder sum depends solely on the documents which were furnished by the Defendant’s solicitor which is PW-2. And those documents have shown the manner the loan facility for the remainder sum was disbursed to numerous parties as per the instructions dated 18.1.2008. The Plaintiff then traced these disbursements and identified the disbursements which are ultimately for the Defendant’s benefit alone. These disbursements identified are as follows (“disbursements”): i. Payment of RM4,000,000.00 to Rimbun Masyhur; ii. Payment of RM401,872.00 to Twintech Holdings Sdn Bhd; iii. Payment of RM50,013.15 to Messrs Rahayu Rabiha & Associates; 26 iv. Payment of RM38,043.50 to Messrs Chor Pee Anwarul & Co.; v. Payment of RM9,660.00 paid to PPC International Sdn Bhd. [53] The Court is minded that at this juncture, the Defendant has done very little to dispute all of these payments made and the evidences contemporaneous to these payments. These evidences of payments were never put under scrutiny during the cross-examination by the Defendant. In fact, there is very little in the Defendant’s submission on the proofs of payment. All there is, was their allegation that the Plaintiff had not shown the manner in which the quantification of their RM4,499,589.00 came about. [54] However, there is no complex mathematics in the quantification of the Plaintiff’s claim. It is simply a rounded amount of the addition of the above disbursements. The total amount of the above disbursements RM4,499,588.65. The rounded amount would come up to the Plaintiff’s claim. Thus, there is no question of the Plaintiff proving their claim. Particularly when the Defendant had eschewed in toto 27 their burden of proof to disprove the evidences brought by the Plaintiff to prove of all of the disbursements made to the Defendant’s sole benefit. [55] This failure to challenge the evidences during cross-examination should be treated as an acceptance of these evidences. The Defendant cannot now generally claim that the claim was not proven or quantifiable when they themselves opted not to challenge it during the trial. The same sentiment has been uphold in the Federal Court decision in the case of Wong Swee Chin v PP [1981] 1 MLJ 212: “…On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony” (See also Soong Peng Yam & Anor v Bank of Tokyo – Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31, at pages 35 to 36) [56] Applying the above principle in the present case, the proof of disbursements is indeed a crucial part of the case as it substantiates 28 the totality of the Plaintiff’s case. And the Defendant has failed to dispute the same during cross-examination. Thus, this failure amounts to the Defendant’s acceptance to the witness’s testimony on the proof of disbursements. [57] Nonetheless, this Court shall still allude to the disbursements above categorically for the sake of completeness. Payment of RM4,000,000.00 to Rimbun Masyhur [58] As had been testified and confirmed by both PW-2 and even the Defendant’s own witness DW-2, this payment to Rimbun Masyhur is a deposit for the purchase of 70% shares of Twintech Holdings Sdn Bhd (“Twintech”) which is owned by Rimbun Masyhur. At the time the Defendant already owned 30% shares in Twintech. It was also admitted by DW-2 that the purchase was not completed and the deposit was forfeited by Rimbun Masyhur. Furthermore, it was also admitted by DW-2 that the purchase of the shares has nothing to do with the Plaintiff. Thus, the only probable benefactor to the purchase is the Defendant. This payment and sole benefit to the Defendant is 29 proven vide a Voucher dated 15.1.2008. (See page 123 of the CBD). It is apparent that the Voucher has nothing to do with the Plaintiff as only the Defendant’s account number is written on the voucher. Payment of RM401,872.00 to Twintech Holdings Sdn Bhd; [59] PW-2 confirmed that this payment was a refund for advances given to the Defendant by Rimbun Masyhur. The payment voucher dated 15.1.2008 is indeed coherent with PW-2’s testimony. The voucher’s description reads: “Reimbursement of Disbursement paid on 27/12/07” It also states that the payment was for the account of Inai Tropika Sdn Bhd, the Defendant in the present case. (See page 124 of the CBD) 30 [60] Thus, it is compelling to infer that this disbursement has no relations at all with the Plaintiff, and was paid on and/or on behalf of the Defendant or to the benefit of the Defendant. Payment of RM50,013.15 to Messrs Rahayu Rabiha & Associates [61] PW-2 confirmed that this payment is made as part-payment of professional fees and disbursement billed to the Defendant at the time PW-2 was acting as the Defendant’s solicitors. There are numerous contemporaneous documents which prove this disbursement and insofar this Court is concerned, none of these documents were put under scrutiny during the cross-examination by the Defendant. The following are the supporting documents:

Paragraph 1 of the Defendant’s solicitor’s letter dated 22.5.2012. (See pages 136 to 137 of CBD).

The Defendant’s solicitor’s bills No. 10-1202 (for the July Agreement) and No. 1-1201 (for a tenancy agreement between the Defendant and Twintech) in which both bills 31 were dated 18.1.2008 and addressed only to the Defendant. PW-2 confirmed that these bills are supposed to be paid by the Defendant and not the Plaintiff. This is coherent to the fact that the bills are addressed to the Defendant. (See pages 138 to 139 of the CBD).

A voucher dated 15.1.2008 to the amount of RM50,013.50 covering payment for bills No. 10-1202 and No. 10-1201 above. The voucher describes that the payment is also made for the account of Inai Tropika Sdn Bhd, the Defendant. (See page 125 of the CBD).

The Defendant’s solicitor’s receipts No. 0068 for bill No. 10- 1202 and No. 0067 for bill No. 10-1201. Both receipts states that the payment was received by the Defendant and not the Plaintiff. Thus, clearly the disbursement is for the benefit of the Defendant and not the Plaintiff. (See pages 140 to 141 of the CBD). 32 Payment of RM38,043.50 to Messrs Chor Pee Anwarul & Co [62] This disbursement has been referred to and confirmed by PW-1 and PW-2 to be the payment for professional fees and disbursement billed to the Defendant regarding the loan documentations between the Defendant (as borrower) and KBIMB (as financier). Similarly, these line of evidences remains unchallenged by the Defendant:

Paragraph 2 of the Defendant solicitor’s letter dated 22.5.2012 which reads (see page 137 of the CBD): “RM38,043.50 paid Messrs Chor Pee Anwarul & Co. i) The payment was part payment for the professional fees and disbursement in connection with the loan documentation between Inai Tropika Sdn Bhd as the purchaser and Bank Kerjasama Rakyat Malaysia Berhad as the purchaser’s financier;and ii) Enclosed copies of the bill no.: K126/2007…” 33

Messrs Chor Pee Anwarul & Co’s Bill no. K126/2007 was addressed only to the Defendant. Only the Defendant’s name was written on top of the bill. (See page 142 of the CBD)

The voucher to the amount of RM38,043.50 dated 15.1.2008 which is described as “Payment for Loan’s Bill – Final Payment” was made to the Defendant’s account and not the Plaintiff’s. (See page 126 of the CBD).

Even more apparent is Messrs Chor Pee Anwarul & Co’s Official Receipt dated 22.1.2008 to the amount of RM38,043.50 which is a receipt to the payment towards bill no K126/2007. It is vividly written in the voucher that it is “For account of: INAI TROPIKA SDN BHD”. [63] Although there is a difference in amount between bill no. K126/2007 (RM85,805.50) and the sum paid for the Defendant’s benefit, this difference has already been explained by PW-2 that bill K126/2007 has been partly paid for earlier and that the sum of RM38,043.50 was 34 the last payment due. The Defendant was also given some discounts to the bill. This explanation is clearly coherent with the fact that the payment voucher dated 15.1.2008 above indeed described the payment as “Final Payment”. [64] The loan documentation is crucial for the Defendant to be able to purchase the properties owned by KBIMB. Thus, this disbursement indeed goes to the benefit of the Defendant. Payment of RM9,660.00 paid to PPC International Sdn Bhd (“PPC”) [65] This payment has been confirmed by PW-2 as payment for professional fees and service tax billed by PPC for the valuation of the properties as required by KBIMB. Again, evidences proving this disbursement had gone unchallenged by the Defendant, even in its submissions:

PPC has written a letter dated 29.11.2007 enclosing the Valuation Report and Note of Fee No. PPC/NF/00120/07 to 35 the Defendant’s solicitors for payment. (See pages 158 to 159 of the CBD).

The Defendant’s solicitors has written a letter dated 9.1.2008 to PPC enclosing a cheque to the amount of RM340 dated 3.1.2008 as part payment to the Note of Fee No. PPC/NF/00120/07. (See pages 160 to 161 of the CBD).

Upon the part-payment above, the remaining unpaid amount is RM9,660.00. Which amount is the exact amount disbursed using the loan, under the instructions dated 18.1.2008. The Defendant’s solicitor’s voucher dated 18.1.2008 to the amount of RM9,660.00 is described as “Payment for Bill No. PPC/NF/00120/07” and was made for the account of the Defendant. (See page 127 of the CBD).

It was even admitted by the Defendant’s own witness during the Plaintiff’s cross-examination, DW-2 that this payment is ought to be paid by the Defendant. 36 [66] Thus, again it is apparent that this payment was made on and/or behalf of the Defendant or was made to the benefit of the Defendant. Court’s finding [67] Considering the unchallenged evidences and testimonies forwarded by the Plaintiff and all the numerous uncontested contemporaneous evidence discussed at length above, it is this Court’s considered view that indeed, the Defendant is indebted to pay the remainder purchase price unpaid from the July Agreement to the Plaintiff. COURT’S DECISION AND DIRECTIONS [68] In light of all of the above findings, it is this Court’s decision that the Plaintiff has successfully proven its case while the Defendant have failed to prove any defence against the Plaintiff’s case. [69] This Court is minded that the Plaintiff has conceded on their alternative prayer for a Declaratory Order that the Defendant be 37 made a trustee for the Plaintiff for the 4,500,000 Twintech shares. Thus, this alternative prayer is dismissed. [70] This Court hereby orders the Defendant to pay the Plaintiff the total sum of RM 4,499,589.00. On the issue of costs [71] Having heard the submission from both counsels for the Plaintiff and the Defendant, this Court hereby orders the Defendant to pay the Plaintiff RM20,000.00 in costs. t.t. ...................................................... (DATUK AZIMAH BINTI OMAR) Judicial Commissioner High Court Shah Alam Selangor Darul Ehsan Dated the 16th day of June, 2015 38 For the Plaintiff - Tetuan Shamiah K.E. Ng & Siva Encik N.Sivagurunathan For the Defendant - Tetuan Harjit Sandhu, Wan & Associates