Chandra Sekar v Sunthar A/L Peria Thamby (BA-22NCvC-221-06/2025)

Sunthar A/L Peria Thamby [NRIC No.: 620912086351]

Nisham Electrical & Construction Sdn Bhd [Company No.: 199701004158 (419654-V)] … DEFENDANTS GROUNDS OF JUDGMENT

This judgment concerns the Defendants’ application in Enclosure 52, firstly to amend the Defence and Counterclaim and secondly to join Nirmalah A/P Rajoo (Plaintiff’s wife) as an additional defendant in the Counterclaim. The Plaintiff does not oppose the Defendants’ amendment to the body of the Defence and Counterclaim, however objects the joinder of a party in the 11/03/2026 10:03:58 BA-22NCvC-221-06/2025 Kand. 105 proposed amended Defence and Counterclaim. This judgement is based solely on the issue of joinder of the Plaintiff’s wife as a Defendant to the Counterclaim.

The Plaintiff and the first Defendant, have known each other since 2012 and had been engaged in business ventures together. Around December 2012, the Plaintiff was the registered proprietor of a landed property known as Lot No.61 (No.17) Jalan Kudalari Heights, Country Heights, 43200 Kajang, Selangor. The Plaintiff had defaulted on his housing loan with RHB Bank Berhad, which eventually resulted in a threat of foreclosure and the Defendants stepped in offering to help. The proposal was by way of an oral arrangement, to transfer the said Property to the 2nd Defendant who is a nominee of the 1st Defendant to avoid the foreclosure.

The Plaintiff’s obligations accordingly, was to transfer the said Property to the 2nd Defendant without any monetary consideration whilst still bearing the financial responsibility of servicing the new housing loan instalments. In return the Plaintiff would utilize his investment skills and experience to manage the 1st Defendant’s investment monies without remuneration until the housing loan was fully settled.

The Defendants obligation, under the arrangement, was upon the full settlement of the housing loan, the 2nd Defendant would transfer the Property back to the Plaintiff. Therefore, there was a trust arrangement in which, the property was held on trust for the Plaintiff subject to the Plaintiff’s monthly loan payments. Pursuant to that, a Sale and Purchase Agreement (SPA) was entered between the Plaintiff and the Defendants together with other subsequential arrangements on January 10th 2013,

The Plaintiff now claims that he was deceived into transferring his property to the 2nd Defendant under the pretext of avoiding foreclosure. The agreement was that the Plaintiff would pay off the new housing loan, and the property would be returned to him. The Plaintiff alleges he has made substantial payments towards the loan, but the Defendants have now taken possession of the property and are acting as if they are the owners, potentially jeopardizing the Plaintiff’s claim over the said property.

The question before this court, is whether the Plaintiff’s wife presence in this suit is necessary or convenient in order to determine questions arising out of the same subject matter. The proposed counterclaim alleges jointly wrongful conduct by the Plaintiff and his wife and seeks reliefs against both. If the allegations are proven, then the Plaintiff’s wife is a proper party to the counterclaim, the joinder would avoid multiplicity and ensure all related issues to be determined in one action.

In considering the above issues, this Court must also exercise precaution against adding a party, if these circumstances exist: -

the factual basis is thin,

(ii) the claim is time‑barred, or

(iii) the addition would impose irremediable prejudice on that new party. Furthermore, if the joinder application, merely drags an uninvolved third party into litigation, then this court should be cautious in granting that order. THE LAW AND RELEVANT FACTUAL BACKGROUND.

There were issues raised by the Plaintiffs on a preliminary note that Order 15 rule 3 Rules of High Court, do not apply to a situation where a defendant attempts to add a new defendant after filing a Counterclaim.

The correct application of the law should have been Order 15 Rule 6 (2) (b) Rules of High Court which states as follows: - “(b) order any of the following persons to be added as a party, namely-

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter

The Defendants argue that the Plaintiff’s contention is wholly misconceived, devoid of the facts, law and an attempt to confuse the Court. This rule is specifically enacted to allow counterclaims against additional parties. Accordingly, the joinder sought by the Defendants exactly falls within the scope of Order 15 Rule 3(1), ROC 2012, and the Plaintiff’s objection ought to be dismissed.

Order 15 Rule 3, ROC 2012 provides as below: Counterclaim against additional parties (O. 15, r. 3) “3. (1) Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject matter of the action, then, subject to rule 5(2), he may join that other person as a party against whom the counterclaim is made”…

The Court has jurisdiction to entertain applications to join additional parties where the law permits as mentioned in both the above rules. This application invokes the procedural provisions that allow joinder of persons against whom a counterclaim is made where the claimed liability arises out of or is connected to the original subject matter. In my opinion, this application was filed and supported by affidavit evidence and therefore it is procedurally competent before this Court. Now I will proceed to consider the merits of the case.

The Plaintiff contends that limitation has set in with reference to the proposed new defendant because the relevant transfers occurred in 2015 and limitation on contractual or related claims ordinarily would have happened much earlier. The Defendant’s stand, is that limitation begins to run only on the discovery in 2025 after obtaining certain banking documents that funds had not been dealt with in the manner represented by the Plaintiff.

In my opinion, the determination of the point at when limitation begins to run requires factual findings as to when the Defendants had knowledge or by reasonable diligence, they could have discovered the facts establishing misappropriation or fraud. That is a question of fact for trial, not at an interlocutory stage and most importantly do not require a joinder in the counterclaim context. Shall the need arise, I believe that Nirmalah A/P Rajoo could be called in as a witness to verify certain material facts.

Furthermore, at present, there seem to be disputes as to when knowledge was first available to the Defendants. I will not resolve limitation conclusively at this stage where the parties have produced competing affidavits and documentary materials. In my view, the limitation arguments, is therefore not determinative at this interlocutory application. Allegations against the Plaintiff’s wife on conspiracy

On the present record the pleaded allegations against the Plaintiff’s wife are not shown to be of sufficient particularity and clarity to render joinder appropriate at this interlocutory stage. The communications put forward conclusively, prove that there are no conspiracy and the Plaintiff’s wife was merely responding to the 1st Defendant’s repeated demands to pay the Housing Loan instalments. In the Plaintiff’s submissions, the WhatsApp conversation shows the following factual account: - Between the Plaintiff’s wife and the 1st Defendant [29/07/2022, 12:41:09 AM] Sunthar: Gd morning amma. Fyi. This month onwards we must pay loan amount RM15465.37 bcz BLR increase. Sorry amma ask sir to call me in morning. I can explain & Sametime I need to meet him bcz he promise meeting today. Tq [emoji] have a nice day [29/07/2022, 1:00:08 AM] Nirmalah Rajoo: .. just landed Anna. Will get him to call once bk hom [emoji] [07/07/2023, 4:05:45 PM] Sunthar: Gd Afternoon amma. Sorry to disturb. From now monthly installment has increased to RM16,500 as per message and BLR revision letter sent to you on 29.05.2023. We have received RM16,150 and therefore shortage of RM350. Kindly credit the differences and to credit RM16,500 going forward please...Thank you [emoji] [07/07/2023, 4:12:43 PM] Sunthar: This message was deleted. [07/07/2023, 4:17:53 PM] Nirmalah: Anna sorry. U did mentioned this last month and I’ve transferred 16,500 last month. This month, office did n missed the amount Anna. I will get them to deposit the difference asap [emoji] [07/07/2023, 4:18:35 PM] Sunthar: Np amma. Tq

The alleged role of the Plaintiff’s wife in the purported conspiracy or breach of trust, is of course contested and in parts, dependent upon documentary evidence which is still in dispute. The Court should not at this stage force the addition of a private individual to live litigation where the particulars remain in dispute and where serious questions of timing and limitation arise.

In the case of Neo Pei Chi @ Leo Pei Chi v Hup Tien Plantations Sdn Bhd & Anor [2024] MLJU 1905, the court held that :- “ [68] Plaintiff now wishes to add as Defendants, the directors who had approved the vouchers and the administrative clerk who had prepared the vouchers for the repayment of the sum RM192,250.00 to the 2nd Defendant. …….. [70] In my judgement, Plaintiff being a shareholder of the 1st Defendant company surely must have known about the vouchers and the involvement of these proposed Defendants before she commenced the action but decided not to sue them as Defendants when she filed the action. …………… [72] A mere preparation, approval and witnessing of the repayment vouchers do not give rise to a cause of action in respect of the loan sum given to the 1st Defendant company and the repayment sum made by the 1st Defendant company to the 2nd Defendant. [73] To this extent, there would be no cause of action against the proposed Defendants. [74] If there are factual allegations surrounding the issuance of the vouchers for the repayments, there is nothing to stop Plaintiff from calling or subpoenaing these proposed Defendants as witnesses. [75] In Maya Maju (M) Sdn Bhd v Dato’ Raja Azwane Raja Ariff & Anor [2010] CLJU 1592, His Lordship Mohamad Arif Md Yusof J was faced with a situation where the proposed parties to be added were potential witnesses and His Lordship found as follows: - “After hearing submissions of the parties, I was of the view that it was not strictly necessary to add Dato’ Man and Nizam as parties in this action since on the facts it would not be “just and convenient” to join them as parties. Obviously, Dato’ Man and Nizam would be material witnesses for the Plaintiff Company, and to add them as Defendants would be highly prejudicial and embarrassing to the Plaintiff Company. The short point is, it will be extremely odd to allow material witnesses for the Plaintiff to be added as Defendants in the present circumstances. In any event, I could not see any injustice being caused to Raja Azwane and Dato’ Ir Tan Kim Kuan, as Defendants, by excluding Dato’ Man and Nizam as Defendants. In fact, if the latter were included as Defendants, the court would be witnessing the spectacle of two Defendants giving evidence in favour of the Plaintiff, or being subpoenaed or called as witnesses for the Plaintiff 4 Company. I would have thought it would be “just and convenient” to the Defendants as well not to have them added as parties. Further, I was of the view that it was obvious the Plaintiff Company would have no cause of action against Dato’ Man and Nizam, since they had expressly agreed to repay the company. To this extent there would be no cause of action against them’’ [76] Hence in my view, the proposed Defendants can be material witnesses for the 1st Defendant company and they can also be called or subpoenaed by the Plaintiff as witnesses”

The potential prejudice to the proposed new defendant is significant. This proposed joinder would expose a private individual who, on the pleaded facts, may have acted only by way of dealing with household finances to grave allegations of conspiracy, breach of trust and fraud. In my opinion, there is no clear prima facie particulars and evidence establishing an arguable basis to join Nirmalah A/P Rajoo as an additional defendant in the Counterclaim and the court declines to impose that burden now. Any unfairness cannot be remedied by costs alone where the proposed defendant may have been improperly joined.

As I have mentioned in the above paragraphs, the Plaintiff’s wife can be called in as a witness to testify or cross examined on certain material facts. Therefore, the joinder of the Plaintiff’s wife as a defendant in the Counterclaim is refused with cost. Dated : 10 March 2026 sgd SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: [MESSRS AZMAN DAVIDSON & CO (KUALA LUMPUR)] Solicitor for the Defendants: Darshanni Raaj [MESSRS DARSHANNI RAAJ & ASSOCIATES (KUALA LUMPUR)]