Datuk Seri Saravanan A/L Murugan v 1. ) Sankran A/L Nagappen (BA-22NCvC-283-07/2021)

SANKRAN A/L NAGAPPEN [NO. K/P: 591020-10-5801]

SARASWATHY A/P KANDASAMI [NO. K/P: 680924-07-5988] … DEFENDANTS (BY WAY OF ORIGINAL CLAIM) BETWEEN SANKRAN A/L NAGAPPEN [No.K/P: 591020-10-5801] … PLAINTIFF

KAVITHA A/P VIVEKANANDAN [No.K/P: 710622-02-5648] 29/11/2022 17:21:00

RUZITA BINTI MOHD NOR [No.K/P: 801111-05-5072]

MALAYAN BANKING BERHAD [No: Syarikat : 3813-K]

RMW MANUFACTURING SDN BHD (IN LIQUIDATION) (COMPANY NO. 512688-V) … DEFENDANTS (BY WAY OF COUNTERCLAIM) GROUNDS OF JUDGEMENT

There are three (3) applications before this Court filed by the Defendants in the counterclaim, namely: a. enclosure 28 – the 1st Defendant’s (in the counterclaim) (Kavitha) application to strike out the Plaintiff’s (in the counterclaim) Writ and Statement of Claim pursuant to Order 18 rule 19(1)(b), (c) and (d), Rules of Court (ROC) 2012 and the inherent powers of the Court. b. enclosure 30 – the 2nd Defendant’s (in the counterclaim) (Ruzita) application to strike out the Plaintiff’s (in the counterclaim) Writ and Statement of Claim pursuant to Order S/N Rl5qyDGg2UyshxpwvpX7uA 18 rule 19(1)(a), (b), (c) and (d), Rules of Court (ROC) 2012 and the inherent powers of the Court. c. enclosure 31 – the 3rd Defendant’s (in the counterclaim) (Maybank) application to strike out the Plaintiff’s (in the counterclaim) Writ and Statement of Claim pursuant to Order 18 rule 19(1)(b) and/or (d), and/or Order 92 of the Rules of Court (ROC) 2012.

There is only one issue before this Court in all the said three (3) applications, whether the Plaintiff’s claim (in the counterclaim) was time-barred under the Limitation Act 1953 against the 1st, 2nd and 3rd Defendants in the counterclaim.

Since the said three (3) applications are only involving the claims in the counterclaim, the reference to Plaintiff and Defendants are only referring to the parties in the counterclaim unless otherwise stated.

The Plaintiff in the original suit, one Datuk Seri Saravanan a/l Murugan, filed a claim against the Defendants, Sankran a/l Nagappen (1st Defendant) and Saraswathy a/p Kandasami (2nd Defendant) for an order, inter alia, to restrain the Defendants from publishing and/or printing words containing similar or identical meaning about RMW Manufacturing Sdn. Bhd. (RMW) and Sankran’s bankruptcy matter against the Plaintiff (in the original suit) in any forum, newspaper and/or any other media; and, for an order that the said Defendants (in the original suit) are restrained from S/N Rl5qyDGg2UyshxpwvpX7uA filing any further actions or proceedings in any court against the Plaintiff (in the original suit) with regard to matters concerning RMW and Sankran’s bankruptcy without first obtaining leave of the court.

In its counterclaim, the Plaintiff, Sankran, had named four (4) Defendants, namely Kavitha a/p Vivekandan, Ruzita Binti Mohd Nor, Malayan Banking Berhad and RMW Manufacturing Sdn. Bhd. (in liquidation). However, it is noted that Datuk Seri Saravanan is not a party named in the counterclaim. The reliefs sought by the Plaintiff in its counterclaim, inter alia, are as follows (see paragraph 131 enclosure 8): - “Terhadap Maybank

suatu pengistiharan bahawa surat ikatan jaminan pertama, ke-2, ke-3 dan ke-4 adalah tidak sah dan terbatal terhadap Defendan

suatu pengistiharan bahawa penghakiman tersebut terhadap Defendan Pertama adalah tidak sah dan terbatal;

susulannya suatu perintah bahawa perintah penerimaan dan penghukuman yang dibuat terhadap Defendan Pertama diketepikan;

suatu gantirugi am untuk ditaksirkan oleh Mahkamah yang mulia ini atas tort kecuaian; S/N Rl5qyDGg2UyshxpwvpX7uA Terhadap Maybank dan Plaintif, Kavitha dan Ruzita

suatu perintah bahawa Defendan Pertama diindemnifikasi sepenuhnya; i. wang simpanan Defendan Pertama yang telah dilucutkah oleh Eon Bank Berhad; ii. kehilangan atau kerugian yang dialami oleh Defendan Pertama atas kereta Ford Ranger WKV 3772 yang ditarik balik oleh Public Bank Berhad; iii. RM250,000 atau nilai semasa, yang mana satu yang lebih tinggi kerana kehilangan rumah beralamat yang telah dilelong oleh

suatu gantirugi am untuk ditaksirkan oleh Mahkamah Yang Mulia ini atas: i. tort penipuan dan representasi palsu yang dibuat terhadap atau kepada Defendan Pertama; ii. kemungkiran terma-terma nyata Perjanjian tersebut; S/N Rl5qyDGg2UyshxpwvpX7uA iii. segala kerugian, kerosakan yang dialami

The Plaintiff and Datuk Seri Saravanan were directors in the 4th Defendant company, RMW.

RMW obtained several banking facilities from the 3rd Defendant, Malayan Banking Berhad (Maybank). The banking facilities were secured by, amongst others, two guarantees dated 19.12.2003 and one guarantee dated 19.03.2004 for the combined sum of RM9.1 million (guarantees) executed by the Plaintiff and Datuk Seri Saravanan in favour of Maybank.

RMW acted in default of the banking facilities and therefore, on 06.10.2006 Maybank commenced recovery proceedings against RMW, the Plaintiff and Datuk Seri Saravanan vide suit No. D7-22- 1453-2006 in the High Court at Kuala Lumpur. Maybank obtained an order for summary judgment (the said Order) against RMW, the Plaintiff and Datuk Seri Saravanan on 05.07.2007 and there was no appeal filed against the said Order.

RMW was wound up on 01.11.2006 by Maybank.

Subsequently, Maybank commenced bankruptcy proceedings against the Plaintiff vide suit No. 29-1189-2009 in the High Court at Shah Alam. On 30.08.2010 a Receiving Order and Adjudication Order (AORO) was entered against the Plaintiff. The Plaintiff then applied to annul the AORO vide post-bankruptcy No: BA-29-PB- 266-08/2017 on 22.08.2017 in the High Court at Shah Alam. S/N Rl5qyDGg2UyshxpwvpX7uA However, on 28.02.2018, the Plaintiff’s application to annul the AORO was dismissed by the Senior Assistant Registrar. The Plaintiff appealed to the Judge in Chambers and on 26.06.2019, the Plaintiff’s appeal was dismissed by the learned Judge. The Plaintiff did not file a further appeal against the said decision. Therefore, his AORO remains.

Kavitha is the wife of Datuk Seri Saravana and was the director of RMW from 14.07.2004 till 24.11.2005.

Ruzita was the business associate of Datuk Seri Saravana and director of RMW in November 2005.

The Plaintiff had claimed that Datuk Seri Saravanan and Kavitha had conspired not to replace Kavitha as a guarantor to the banking facilities taken for RMW in place of the Plaintiff upon Kavitha being appointed as the director of RMW.

The Plaintiff also claimed that Datuk Seri Saravanan, Kavitha and Ruzita had embezzled in RMW funds and caused RMW to fail in its repayment of the banking facilities with Maybank.

The Plaintiff also claimed that Datuk Seri Saravanan, Kavitha, Ruzita, Maybank and RMW had committed fraud and deceit against the Plaintiff. Further, after the conspiracy to commit the fraudulent acts and/or authorizing the fraudulent acts, Maybank had acted selectively against the Plaintiff to his detriment.

The Plaintiff claimed that when he failed to obtain documents pertaining to the banking facilities with Maybank, he lodged a police report bearing no. Dang Wangi/015980/15.

On 27.08.2015, the police in course of investigating the report, which appears to contain an allegation of forgery, requested certain documents relating to the banking facilities from Maybank. On 15.09.2015 Maybank furnished the requested documents including the guarantees to the police. The Plaintiff had also admitted receiving the same documents on 15.09.2015 from the police (paragraph 79 of enclosure 8).

The Plaintiff claimed he had only discovered the fraud and forgery committed against him upon receiving the documents on 15.09.2015. Based on the documents received, he discovered, amongst others, for the very first time, he was deceived into signing the guarantees, his signature on the guarantees was forged, and that he had never produced his identity card to Maybank for the purposes of the banking facilities for RMW.

The Plaintiff claimed that he had no knowledge about Maybank’s recovery proceedings vide suit No. D7-22-1453-2006 in the High Court at Kuala Lumpur and that Datuk Seri Saravanan, Kavitha and Ruzita had conspired to conceal the suit from the Plaintiff’s knowledge.

The Plaintiff also claimed that he had no knowledge of the summary judgment obtained against him until he found out he had been S/N Rl5qyDGg2UyshxpwvpX7uA declared bankrupt and upon further investigation into his bankruptcy.

The principles of law on striking out of pleadings are trite and well-settled. The Court’s power to strike out a claim should be exercised sparingly. The test for striking out is laid down in the case of Bandar Builder Sdn Bhd v United Malayan Banking Corporation [1993] 3 MLJ 36, the Supreme Court held that this summary procedure can only be exercised when it can be clearly seen that a claim or answer is on the face of it is ‘plain and obviously unsustainable’. The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. This principle has been re-stated in many cases. (see: Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 CLJ 1; Sivarasa Rasiah & Ors v Che Hamzah Che Ismail & Ors [2012] 1 MLJ 473; Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70, CA)

In a nutshell the relevant paragraphs of the Plaintiff’s pleaded case against Kavitha, Ruzita and Maybank in the counterclaim are as follows: a. paragraph 101 – claim for the tort of deceit – that Datuk Seri Saravanan, Kavitha, Ruzita and Maybank had made a false S/N Rl5qyDGg2UyshxpwvpX7uA representation that the documents executed were only loan agreements and letters of acceptance on behalf of RMW. b. paragraph 102 – claiming that Datuk Seri Saravanan, Kavitha, Ruzita and Maybank had jointly and severally committed the tort of deceit. c. paragraph 103 – claim for breach of contract – that Datuk Seri Saravanan, Kavitha, Ruzita and Maybank had jointly and severally caused the breach of contract by RMW to repay the banking facilities. d. paragraph 106 – claim that there was a deviation of funds – that Datuk Seri Saravanan, Kavitha, and Ruzita had caused a deviation of RMW’s funds. e. paragraph 116 – conspiracy claim – that Datuk Seri Saravanan and Ruzita had conspired to conceal Maybank’s recovery proceeding suit no 1453 from the Plaintiff’s knowledge.

Upon perusal of the cause papers filed herein and upon reading the written submissions of the parties and hearing the oral submission I find that the Plaintiffs’ case is plain and obviously unsustainable for the reasons stated below.

Based on the facts stated in the pleadings in the counterclaim, I find the Plaintiff’s cause of action has been time-barred under section 6 of the Limitation Act 1953 against the 1st, 2nd and 3rd Defendants.

The Plaintiff’s pleaded case against the 1st, 2nd and 3rd Defendants inter alia are for the tort of deceit, breach of contract, and deviation of the RMW’s funds, whereby all the related events had taken place more than the 6 years before the counterclaim was filed on 01.10.2021. It is my considered view that the cause of action had accrued at the time when the Plaintiff was declared bankrupt on 30.08.2010 and in the case of fraud when he had discovered the fraud on 15.09.2015 upon receiving the documents from Maybank.

It is trite that a counterclaim is a separate and independent claim from the original claim. The Plaintiff cannot claim to have knowledge only upon receiving the writ and statement of claim filed by Datuk Seri Saravanan, the Plaintiff, in the original claim. His cause of action in the counterclaim is separate and independent from the cause of action in the main suit and it must be brought within the limitation period pursuant to the Limitation Act 1953.

Maybank obtained the AORO against the Plaintiff on 30.08.2010. The Plaintiff had admitted that he knew about the bankruptcy orders against him in the year 2013 (as stated in paragraph 61 of the counterclaim). Therefore, I find all reliefs sought in paragraph 131 of the counterclaim which are the consequences of his bankruptcy are clearly time-barred. However, it is also settled under the Bankruptcy law when AORO is ordered by the Court on 30.08.2010, the Plaintiff is deemed to have knowledge of his AORO and therefore the action was in fact time-barred by August 2016. In this case, since the Plaintiff had expressly pleaded that he knew about his bankruptcy in 2013, even at the very least, if this date was considered, his action would still be time-barred by 2019.

It is also the Plaintiff’s pleaded case that he had discovered the alleged tort of deceit and breach of contract in 15.09.2015 (as stated in paragraphs 79 and 80 of the counterclaim). Further, the Plaintiff lodged a police report for the forgery on 11.07.2015 (as stated in paragraph 100(5) of the counterclaim) whereby the 6 years period had well passed when the counterclaim was filed on 01.10.2021. It is trite the cause of action on a contract accrues on the date of the breach and in the case of actions founded on a contract, time runs from the breach. Whilst, the cause of action founded in tort accrues when the Plaintiff suffers damage (see: Ambank (M) Berhad v Abdul Aziz Hassan & Ors [2010] 3 MLJ 784; Aneka Melor Sdn Bhd v Seri Sabco (M) Sdn Bhd & Another Appeal [2016] 2 CLJ 563)

It was also admitted by the Plaintiff specifically in paragraphs 79 and 80 of the counterclaim that he had discovered the fraud and forgery by the Defendants against him for the first time when he received the documents on 15.09.2015. Therefore, pursuant to section 29(1)(a) of the Limitation Act 1953, the period of limitation shall begin to run when the Plaintiff discovered the said fraud on 15.09.2015 which would be time-barred by 14.09.2021.

I do not agree with the learned counsel for the Plaintiff’s submission that the Plaintiff ought to have knowledge about the fraud and forgery only upon perusal and reading the documents that he had obtained and not on the date he had received the said documents. I am of the view that the Plaintiff was deemed to have knowledge S/N Rl5qyDGg2UyshxpwvpX7uA about the fraud and forgery upon receiving the documents from the police on 15.09.2015. This is a well-settled position in law.

On the other hand, the Plaintiff claimed that his claim was not time-barred as he had only received the documents in late October 2015 or early November 2015. However, the Plaintiff had only raised the issue that he had only obtained the documents in late October or early November 2015 from the Police in his Affidavit in Reply. This was never raised in his pleadings. Paragraphs 79 and 80 of the counterclaim stated he first knew about the fraud and forgery on 15.09.2015 when he received the documents from the police. It is trite that any defect or omissions in the pleading cannot be made good by affidavit evidence. The Defendants should know from the writ and statement of claim what is the exact claim against them (see: United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd & Ors [1983] 1 MLJ 206; Pernas Sime Darby Holdings Sdn. Bhd. v M Poovanandran [1986] 1 MLJ 418; Hsu Seng v Chai Soi Fua [1990] 1 MLJ 300).

Further, the Plaintiff’s assertion that he had only obtained the documents in late October or early November 2015 from the police was unsupported by any evidence or particulars. Therefore, I find it is also in and of itself contradictory and remains a bare denial.

The Plaintiff’s relief amongst others is to invalidate the guarantees and to set aside the summary judgment entered by the 3rd Defendant on 05.07.2007 are also obviously time-barred.

Further, his relief to set aside the AORO (see paragraph 131(6) enclosure 8), to my mind is also Res Judicata as the Plaintiff’s application to annul the AORO was dismissed by the Court on 28.02.2018 and his appeal was dismissed on 26.06.2019.

The Plaintiff’s own pleaded case speaks volumes. There is a clear admission of his knowledge of his bankruptcy orders, fraud and forgery purportedly committed by the Defendants as mentioned above in paragraphs 61, 79, 80 and 100(5) of the counterclaim. He cannot now claim otherwise. The Plaintiff chose not to commence any action within the 6 years pursuant to section 6 of the Limitation Act.

It is also trite that when a defence of limitation is raised, the burden would shift to the Plaintiff to prove that the claim brought against the Defendants is well within the limitation period. However, upon perusal of the Plaintiff’s reply to the defence to counterclaim by the 1st, 2nd and 3rd Defendants (at enclosure 16 paragraph 7, enclosure 17 paragraph 7 and enclosure 18 paragraphs 53 & 54 respectively), I find the Plaintiff had only set up a bare denial (see enclosure 20 paragraph 4, enclosure 21 paragraph 4 and enclosure 25 paragraph 29) which could not be considered as proving the issue (see Ong Ah Bee v Hii Chung Siong, Robin [1993] 1CLJ 504). I also drew guidance from the case of Mohd Sari bin Datuk Okk Hj Nuar & Ors v Asia General Equipment and Supplies Sdn Bhd & Ors [2010] 5 MLJ 766, the Court of Appeal held: “[26] The defendants had raised the defence of limitation. That being the situation, the burden of proving that the S/N Rl5qyDGg2UyshxpwvpX7uA action was brought within the limitation period shifts to the plaintiffs, as was held in Ong Ah Bee v Hii Chung Siong, Robin [1364] MD 2; [1993] 1 CLJ 504 where Steve Shim Lip Kiong J said: Now it has been held that when the defence of limitation is raised, the burden of pleading and proving that the action was brought within the limitation period shifts to the plaintiff. In Cartledge (Widow and Administratrix of The Estate of Fred Hector Cartledge (deceased) and others v E Jopling & Sons, Ltd [1963] 1 All ER 341, Lord Pearce said: …I agree that when a defendant raises the statute of limitation, the initial onus is on the plaintiff to prove that his course of action occurred within the statutory period. When, however, a plaintiff has proved an accrual of damages within the six years… the burden passes to the defendants to show that the apparent accrual of a cause of action is misleading and that in reality the cause of action accrued at an earlier date. [27] …The Plaintiffs were well aware that the loan had become repayable, but had stood by idly and silently, without pursuing their rights. We find that the plaintiffs have not discharged their burden of proof on this limitation defence. We are also of the view that the learned judge had misdirected himself in not addressing this point directly but instead went around it by fallaciously applying the doctrine of estoppel to bar the defendants from raising what is their rightful statutory defence. S/N Rl5qyDGg2UyshxpwvpX7uA [28] We conclude by saying that this action is stale. Public policy demands that such an action be struck out and put to rest definitely.”

As to the allegation of conspiracy between Datuk Seri Saravanan and Ruzita, I find the Plaintiff had failed to plead any particulars as to how Ruzita had conspired with Datuk Seri Saravanan to conceal Maybank’s recovery proceedings vide suit No. D7-22-1453-2006 in the High Court at Kuala Lumpur from the Plaintiff.

The purpose of limitation statutes is to ensure litigants with a good cause of action pursue their claim with reasonable diligence, therefore the court should not assist those who sleep on their claims to recover their property. These principles were stated in the case of Aneka Melor Sdn Bhd v Seri Sabco (M) Sdn Bhd & Another Appeal (supra). The Court of Appeal held: “[18] In R. B. Policies at Lloyd's v. Butler [1950] 1 KB 76: [1949] 2 All ER 226 (KBD) Streatfeild J. stated that "one of the principles of the Limitation Act 1939 is that those who go to sleep on their claims should not be assisted by the courts in recovering their property. But another equally important principle is that there shall be an end to these matters and that there shall be protection against stale demands". [19] Further, in Board of Trade v. Cayzer, Irvine and Co. Limited [1927] AC 610 Lord Atkinson made the following observation: - The whole purpose of this Limitation Act is to apply to persons who have good causes of action which S/N Rl5qyDGg2UyshxpwvpX7uA they could if so disposed, enforce, and to deprive them of the power of enforcing them after they have lain by for the number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use. [20] To all these, we can add that the policy behind the statute of limitations is to prevent unreasonable delay in the enforcement of legal rights and to protect against the risk of injustice. The rule provides an objective, reliable, predictable and relatively definitive rule that has long governed this aspect of commercial repose of disputes” [emphasis added]

Based on the pleaded case of the Plaintiff, I find that the Plaintiff had slept on his claims in enforcing his legal rights. There was an unreasonable delay by the Plaintiff in bringing his action against the Defendants. In the circumstances of this case, to prevent the risk of injustice, this Court shall not and should not assist the Plaintiff who had chosen not to exercise its rights within the limitation period, thus there shall be an end to these matters.

Therefore, based on the reasons stated above I find that the Plaintiff’s claim (in the counterclaim) discloses no reasonable cause of action against the 1st, 2nd and 3rd Defendants (in the counterclaim) and it is scandalous, frivolous and vexatious and an abuse of the process of Court.

For the foregoing reasons, I, therefore, ordered that the 1st, 2nd and 3rd Defendant’s application (in the counterclaim) in enclosures 28, 30 and 31 respectively be allowed and the Plaintiff’s claim (in the S/N Rl5qyDGg2UyshxpwvpX7uA counterclaim) was struck out against the 1st, 2nd and 3rd Defendants with costs of RM7000.00 to each of the 1st, 2nd and 3rd Defendants. Dated: 29th day of November 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Plaintiff : Y H Yeo (Messrs Shui Tai) For the 1st & 2nd Defendants: Saraswathy Kandasami (Messrs S Kandasami, Sana Ahmad & Aswini) For the 1st Defendant : Premshangar s/o Venugopal in the counterclaim (Messrs Lewis & Co.) For the 2nd Defendant : Tharminder Singh in the counterclaim (Messrs Izral Partnership) For the 3rd Defendant : Hoi Jack S’ng & Tiffany Low Jia Qi in the counterclaim (Messrs Lee Hishammuddin Allen &