Central Sugars Refinery Sdn Bhd v Holsten Marketing (M) Sdn Bhd (WA-28NCC-572-05/2025)

By my decision on 8.1.2026, I dismissed Encl 14 (to strike out the Winding Up Petition) and granted the Petition (“Encl 1” or “the Petition”) with costs of RM3,000.00, subject to allocatur.

The Respondent’s case is that: a. the Petitioner’s Winding Up Petition was not properly served upon a member or officer or servant of the Respondent; b. the Respondent has a counterclaim against the Petitioner in another suit for more than the outstanding sum in the Petition; c. the Respondent is a solvent company; and d. the Petitioner should not combine the HC Judgment and the CA Judgment order into a single winding up petition.

Before I deal with the merit if the case, I say this. This is yet another case where the Respondent has filed a striking out of a Winding Up Petition. This practice is to be discouraged, as it leads to a delay in the Petition, where the issues in the Petition and the striking out will inevitably be the same. The ordinary rule is to hear the Petition itself, see the Court of Appeal in Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd and other appeals [2001] 4 MLJ 187, per Abdul Hamid Mohammad JCA (as he then was) and the Court of Appeal in Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492.

The business of the Petitioner is to manage the business of sugar refinery, and to undertake and perform all or any of the operations, undertaken by sugar refiners, contractors and shoppers or by persons engaged in such business.

The Respondent operates the business of trading in duty-free goods and provisions of freight forwarding, warehouse, transit and bunkering services.

The Petitioner commenced proceedings against the Respondent in the Shah Alam High Court on 9.4.2021 (“Suit 156”) for sums owing to the Petitioner pursuant to a sugar supply contract entered into between the parties. The Petitioner obtained summary Judgment against the Respondent on 4.1.2022 (“the HC Judgment”).

8.

On 23.10.2023, the Respondent’s counterclaim in Suit 156 was dismissed after a full trial with costs of RM80,000.00; the Petitioner was allowed to execute the HC Judgment.

Following the disposal of the Respondent’s counterclaim, the Respondent’s appeal against the decision of the High Court to the Court of Appeal was dismissed on 5.11.2024 and the Court of Appeal upheld the decision of the High Court with costs of RM50,000.00 (“the CA Judgment”).

11.

The Respondent failed to settle the Debt within the 21-day period specified in the Statutory Demand. The Petitioner then filed Encl 1.

The Respondent resisted Encl 1 on the following grounds. Service

The Respondent claims that the Petition was not properly served within the Companies (Winding-Up) Rules 1972 (“the Rules”). The Petitioner denies, this claiming the Petition was duly served at the registered office on 6.6.2025; and service was effected on the Company Secretary, who is an officer of the company, see Affidavit of Service (Encl. 5), at Exhibit MAA-1, p. 5. The Respondent confirmed such service.

Service at the registered address is good service within Rule 25(1) of the Companies (Winding-Up) Rules 1972. Notably, the Respondent’s registered address and the Respondent’s Company Secretary’s address are the same.

Lee Swee Seng JC (as he then was) in Carl Zeiss Sdn Bhd v Delphax Sdn Bhd [2012] 1 LNS 803 stated: “Rule 25 Companies (Winding Up) Rules 1972 states that every petition shall be served on the company at the registered address, and if there is no registered office, at the principal or last known principal place of business that can be found by leaving a copy with any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by leaving a copy at the registered office or principal place of business.”

Here, the Respondent acknowledged service by the Company Secretary but contends that this does not comply with the Winding Up Rules as the Petition was not served on a “member, officer or servant” of the Respondent. There is nothing in this point. A Company Secretary is an “officer” of a company, see s. 2 of the Companies Act 2016, which provides that “officer”, in relation to a corporation, includes (a) any director, secretary or employee of the corporation.” The Counterclaim

The Respondent contends that it has a counterclaim against the Petitioner for a sum exceeding the debt due under the Petition. However, the Respondent must demonstrate that it has a realistic chance of success, see Pontian United Theatre Sdn Bhd v Southern Finance Berhad [2006] 2 MLJ 602 at 612.

The alleged counterclaim relied upon by the Respondent arises from a separate action commenced by the Petitioner against the Respondent in another Shah Alam High Court suit BA-22NCvC-155-04/2021 (“Suit 155”). In that action, the Petitioner seeks the refund of a deposit of RM1.7 mil paid to the Respondent in 2020 for the supply of sugar which the Respondent had contracted to deliver, but ultimately failed to supply.

The Petitioner’s case in Suit 155 is that the Respondent received a deposit for goods it failed to supply, and is therefore liable to refund the deposit of RM1.7 mil to the Petitioner (excluding late delivery penalty of RM713,571.24 and accrued interest). The Respondent’s counterclaim is based on an assertion that it is entitled to retain the deposit on account of its alleged losses (including loss of profit) in the sum of approximately of RM2,248,950.000, expenses and charges amounting to RM12,852.00, and increase of purchase price of RM56,361.53, which totals approximately RM2.32 million. However, from the Respondent’s Written Submissions dated 26.9.2025 at paras 16 to 21, there is little to justify the Counterclaim as having a ‘realistic chance of success’ within Pontian United Theatre (supra).

The Petitioner submits that in substance, the Respondent’s counterclaim is to allow the Respondent to retain the Petitioner’s money. The Respondent has been holding the Petitioner’s deposit of nearly RM2 million since 2020. The Respondent’s position is therefore not one of a creditor asserting payment, but of a debtor seeking to justify withholding funds belonging to the Petitioner. As such, it is submitted that the Counterclaim is not a claim that will reduce final Judgments obtained by the Petitioner.

I accept this argument. I also have in mind, as pointed out by the Petitioner’s Counsel, that the Shah Alam High Court’s finding in Suit 156 on the Respondent’s counterclaim therein: “[123] It seems that the Defendant, by putting up a very grossly exaggerated counterclaim amount of RM1,280,000 in its Amended Defence and Counterclaim, has managed to get a stay of execution of the entire amount … [125] By its pleadings and its affidavit, the Defendant has misled this Court into thinking at the time of granting the summary judgment that there was a total quantity of 800 metric tonnes x 8 months = 6,400 metric tonnes of balance sugar which was to be supplied under the Local Contract, and this resulted in this Court granting the unconditional stay of the entire summary judgment amount pending the trial of the counterclaim.” Miscellaneous Grounds

First, the Respondent claims that it is a solvent company. The simple response to that is that if solvent, the Respondent should just pay the amounts due under the Judgments.

Secondly, the Respondent submitted that the Petitioner had improperly combined the HC Judgment and the CA Judgment, which is allegedly, an abuse of court process. I regret I cannot agree with that submission.

The CA Judgment arose from the Respondent’s own appeal against the High Court’s decision dismissing its Counterclaim. It is not a separate cause of action but a continuation of the proceedings leading in the HC Judgment.

As such, I accept the Petitioner’s submission that the sums payable under the Judgments arise from the same proceedings, both of which deal with the Respondent’s liability to the Petitioner under Suit 156. CONCLUSION 9 27. With respect, I find nothing in the submissions of the Respondent that are sufficient to resist Encl

As such, I granted Encl 1. This means that the striking out in Encl 14 is rendered moot and I dismissed the same. I also granted costs of RM3,000.00 in favour of the Petitioner, subject to allocatur. Dated the 18th day of March 2026 ........................tt............................ YA TUAN SAHERAN SUHENDRAN JUDICIAL COMMISSIONER OF THE HIGH COURT (COMMERCIAL 11) (INSOLVENCY 2) OF KUALA LUMPUR IN THE TERRITORY, MALAYSIA Counsel for the Petitioner: Solicitors: Suaran Singh, Cheryl Chong Ke Han & Keith Tan (PDK) Messrs. Law Partnership (Kuala Lumpur) Counsel for the Respondent: Solicitors: C.Sivasankar Messrs. R Kengadharan & Co (Petaling Jaya) Case References: • Carl Zeiss Sdn Bhd v Delphax Sdn Bhd [2012] 1 LNS 803 • Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd and other appeals [2001] 4 MLJ 187 • Pontian United Theatre Sdn Bhd v Southern Finance Berhad [2006] 2 MLJ 602 • Tan Kim Hor & Ors v Tan Heng Chew & Ors [2003] 1 MLJ 492 Legislation References: • Companies (Winding-Up) Rules 1972 (“the Rules”) • Companies Act 2016: • Rule 25(1) of the Companies (Winding-Up) Rules 1972 Decision Date: 08th January 2026