E-Komoditi Sdn Bhd v Century Software Sdn Bhd (BA-12B-28-03/2024)

Enclosure 20 is an Amended Notice of Appeal by the defendant/ judgment debtor against the decision of the learned Session Court Judge on 1.2.2024.

On 6.3.2025, the appeal is dismissed with costs.

The plaintiff obtained a Judgment against the defendant on 29.1.2022 vide Suit No: BB-B52NCVC-3-02/2021. Upon obtaining the Judgment, the plaintiff proceeded to file for an application for a Judgment Debtor Summons.

The Session Court Judge then granted an order for the Judgment Debtor Summons to be issued against the directors who are liable, as follows – MAKA ADALAH PADA HARI INI DIPERINTAHKAN bahawa Pemiutang Penghakiman/plaintif diberi kebenaran untuk mengeluarkan Saman Penghutang Penghakiman terhadap Dr. lee oi Kum (No.K/P: 520216-08-5998) dan Sadasivan Sivaji (No. Pasport: Z678618) yang bertanggungan sebagai pengarah-pengarah di syarikat Penghutang penghakiman/defendan.

Furthermore, it is noted from the Records of Appeal that the judgment debtor did not contest the aforementioned Order, thereby rendering the Order conclusive against them.

The director of the judgment debtor, Dr Lee Oi Kum, appeared in Court on behalf of the judgment debtor and was examined.

The Session Court Judge allowed the judgment creditors’ application in the Judgment Debtor Summons and decided as follows – MAKA ADALAH DIPERINTAHKAN seperti berikut-i. Penghutang Penghakiman membayar kepada Pemiutang Penghakiman jumlah Penghakiman sebanyak RM516,412.10 termaksud faedah dan kos sehingga 15 Ogos 2023 (faedah masih berterusan) dalam tempoh 14 hari dari tarikh Perintah ini; ii. Satu perintah komital dikeluarkan terhadap Pengarah-Pengarah Syarikat Penghutang Penghakiman iaitu Dr Lee Oi Kum (No. K/P : 520216-08-5998), Ng Kah Hoh (No. K/P: 770411-14- 5329) dan Sadasivan Sivaji (No. K/P : Z4678618) untuk penghinaan dan tidak mematuhi Perintah ini jikalau terdapat sebarang keingkaran atau kegagalan dalam pembayaran penuh jumlah Penghakiman yang dinyatakan di perenggan (i) seperti dinyatakan dalam Saman Penghutang Penghakiman Lampiran 2; iii. Kos sebanyak RM3,000.00 dibayar oleh Penghutang Penghakiman.”

Dissatisfied with the decision, the defendant filed an appeal before this Court.

The appellant's primary argument is that the Session Court Judge erred in concluding that the appellant had the means to satisfy the judgment dated 29.12.2022, despite the documentary evidence proving otherwise. C. APPLICABLE LAW

In the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, the Federal Court held as follows -

It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is 'the plainly wrong test' principle; see the Federal Court in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (at p 10) per Steve Shim CJ (Sabah & Sarawak). More recently, this principle of appellate intervention was affirmed by the Federal Court in UEM Group Bhd v Genisys Intergrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 where it was held at p 800: It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence (see Chow Yee Wah & Anor v Choo Ah Pat [1978] 1 LNS 32; Watt v Thomas [1947] AC 484; and Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309). D. ANALYSIS AND FINDING

The main issue is whether the Session Court Judge is plainly wrong in allowing the judgment creditors’ application.

After reviewing the appeal records and the grounds of judgment presented by the Session Court Judge, as well as considering the submissions made by both parties, I conclude that the Session Court Judge assessed the evidence submitted by Dr. Lee during the evaluation of the appellant's ability to satisfy the judgment.

The assessment conducted by the Session Court Judge aligns with Order 48, rule 1 of the Rules of Court 2012, which provides the following-

Order for examination of judgment debtor (O.48 r.1)

Where a person has obtained a judgment or order for the payment of money by some other person (who is referred to as ‘the judgment debtor’ in this Order), the Court may, on an application made ex parte by a notice of application supported by an affidavit in Form 95 by the person entitled to enforce the order, order the judgment debtor, or, if the judgment debtor is a body corporate, an officer thereof, to attend before the Registrar, and be orally examined on the questions-

whether any and, if so, what debt owing to the judgment debtor; and

whether the judgment debtor has any and, if so, what other property or means of satisfying the judgment or order, and the Court may also order the judgment debtor or officer to produce any books or documents in the possession of the judgment debtor relevant to the questions aforesaid at the time and place appointed for the examination. [14] In the case of Kwek Seow Kee & Anor v KT Packaging Sdn Bhd (No.2) [1998] 3 CLJ SUPP 244, it was held as follows – The sting of O.48 of the Rules of High Court 1980 is to provide a process for the examination of the judgment debtor as to gather information as to his means of paying the judgment and flowing from it the judgment creditor will be able to determine the appropriate mode of enforcement. [15] I am satisfied that the Session Court Judge referred to the relevant financial document belonging to the judgment debtor, showing the debtor's current assets as of 31.8.2023. [16] This Court also refers to section 4 of the Debtors Act, which provides that the court may order the judgment debtor to satisfy the judgment, either by instalments or otherwise. In this appeal, the Session Court Judge has ordered the defendant to pay the plaintiff RM516,412.10 (inclusive of interest and costs) in a lump sum. [17] In the grounds of judgment, the Session Court Judge has explained the basis of her decision. It is clear to me that the Session Court Judge has directed her mind to consider the evidence given by Dr Lee before the Court and finds that after the judgment dated 29.12.2022, the appellant has assets of RM239,721.68 as of 31.8.2023. However, after the judgment was entered against the appellant in January, March, and August 2023, the total sum of RM228,566.80 was transferred to Dr Lee. [18] The judgment debtors’ counsel submitted that the Session Court Judge erred in determining that Dr Lee and the appellant acted as a single entity. On the other hand, counsel for the judgment creditor stated that none of the arguments presented in this appeal hearing were put before the Session Court Judge by the judgment debtors’ lawyer during the trial. Mr. Chris Lim represented Dr Lee during the trial, and the company remained unrepresented. No submission was made by the judgment debtor regarding procedures before the Session Court Judge. [19] The Session Court Judge in her grounds of judgment states as follows – para 18, 19 and 20. [18] Mahkamah mendapati penghutang penghakiman menyalurkan wang RM228,556.80 pada tahun 2023 kepada Dr Lee Oi Kum selepas penghakiman diperolehi dan sejurus sebelum pendengaran SPP. [19] Apa yang menarik ialah Dr Lee Oi Kum menyatakan bahawa beliau bukannya syarikat penghutang penghakiman/ defendan dan beliau adalah identiti berbeza dengan syarikat penghutang penghakiman. [20] Mahkamah mendapati semasa pemeriksaan dijalankan jawatan Dr Lee Oi Kum dalam syarikat penghutang penghakiman ialah pengarah dan pemegang saham tunggal yang mengawal Lembaga sebagai pengerusi. [20] It is clear that the Session Court Judge has reached a sound conclusion and provided reasonable justification to support her findings. Her decision is consistent and within subsections 4(1) and (6) of the Debtors Act. What is more important is that the Session Court Judge considers the means and ability of the judgment debtor to pay the judgment sum. She continues to justify her decision based on the fact that the judgment debtor remains capable of paying RM100,000 to Ng Khar Ho for an allowance. In December 2022, the judgment debtor had RM300,000, which was paid to Dr Lee. [21] The learned Session Court Judge found that the judgment debtor employed a tactical manoeuvre to avoid paying the judgment creditor, where she stated as follows – Ini menunjukkan bahawa penghutang penghakiman sengaja memperlekehkan dan memperkotak-katikkan penghakiman Mahkamah yang Mulia ini yang diputuskan oleh Tuan Hakim MS dan menggunakan pelbagai cara mengelak daripada membayar hutangnya. [22] This Court agrees with the counsel for the judgment creditors' submission that Order 74 of the Rules of Court is tight with section 4 of the Debtors Act and Order 48 of the Rules of Court. [23] I find no errors in the order made by the learned Session Court Judge that warrant interference by this Court. E. CONCLUSION [24] Based on the reasons above, the appeal is dismissed with costs of RM6,000.00 subject to allocator. Dated: 27 May 2025. Signed ........................................................... HAZIZAH KASSIM

For the Appellant : Tee Xue Ying Messrs Chih-Jen & Associates (Federal Territory of Kuala Lumpur)

For the 1st Defendant : Chandrasekar dan S. Seenivasagam Messrs Azariah & Associates (Klang, Selangor)