Empire Holdings Ltd (Seychelles Company No.: 037427) v 1. Ithmaar Development Company Ltd (Company No: 174295) (WA-22NCC-295-07/2021)

ITHMAAR DEVELOPMENT COMPANY LTD

ITHMAAR BANK B.S.C.

MAA GROUP BERHAD

TUNKU DATO’ YAACOB KHYRA

TURIYA BERHAD (COMPANY NO: 55576-A) …DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] The Plaintiff filed an application vide Enclosure 2 pursuant to Order 29 Rule 1 and/or 2 and/or Order 92 Rule 4 of the Rules of Court 2 2012, and/or Sections 50, 51 and/or 53 of the Specific Reliefs Act 1950, and/or Sections 201, 357 and/or 360 of the Capital Market and Services Act 2007, for the following orders:-

An Order that the 3rd Defendant, whether by themselves, their directors, officers, servants and/or agents or otherwise howsoever, be restrained and an injunction be granted restraining them from selling, transferring, pledging, exercising any rights including voting rights, or howsoever dealing with the 132,151,497 ordinary shares in the 5th Defendant held as security and/or by way of charge by the 1st Defendant and/or 2nd Defendant;

(ii) An Order that the 3rd Defendant, whether by themselves, their directors, officers, servants and/or agents or otherwise howsoever, be restrained and an injunction be granted restraining them from taking steps in any manner whatsoever under the Notice of Unconditional Mandatory Take-Over Offer to acquire shares in the 5th Defendant other than the Shares;

(iii) An Order that the 1st Defendant and the 2nd Defendant, whether by themselves, their directors, officers, servants and/or agents or otherwise howsoever, be restrained and an injunction be granted restraining them from exercising any and/or all rights of sale, disposal, assignment and/or enforcement howsoever, over all other shares and/or assets taken as security for the facility granted to the Plaintiff, until further order; 3

(iv) Costs of and incidental to this application; and

Further or other relief as this Honourable Court deems fit and just. [2] On 05.07.2021, an ex parte ad interim injunction order (‘Ad Interim Injunction’) was granted by this Court in favour of the Plaintiff restraining the 3rd Defendant from:

selling, transferring, pledging, exercising any rights including voting rights;

(ii) taking steps in any manner whatsoever under the Notice of Unconditional Mandatory Take-Over Offer to acquire shares in the 5th Defendant other than the Turiya Shares, until further order. [3] The Ad Interim Injunction restrained the 3rd Defendant from exercising any rights including voting rights as the registered and beneficial owner of the Turiya Shares to vote on any resolutions proposed by the 5th Defendant at any shareholder meetings, including the Annual General Meeting of the 5th Defendant. [4] The Ad Interim Injunction also restrained the 3rd Defendant from undertaking and completing the Mandatory General Offer (‘MGO’) as required by Paragraph 4.01 of Rule 4 of the Take Over and Merger Rules. [5] The Ad Interim Injunction further restrained the 3rd Defendant as a shareholder from voting against any resolution of the 5th Defendant 4 to prevent the frustration of the MGO under Paragraph 16.01 of Rule 16 of the Take Over and Merger Rules. [6] On 07.09.2021, the 3rd Defendant received the Notice of the 41st Annual General Meeting of the 5th Defendant to be held on 27.09.2021 at 9.00 am (‘AGM’) on a fully virtual basis from the Broadcast Venue at Conference Room, Suite 5.3, 5th Floor, Wisma Chase Perdana, Kuala Lumpur. [7] In Resolution 5 of Special Business of the AGM Notice the 5th Defendant has proposed that the shareholders of the 5th Defendant authorise the Board of Directors of the 5th Defendant to issue new shares up to 10% of the issued capital in the 5th Defendant (‘New Shares’) for such purpose as the Board of Directors of the 5th Defendant deem fit (‘Proposed Resolution’). [8] If the Proposed Resolution is passed at the AGM of the 5th Defendant, the Third Defendant is concerned that the issue of New Shares in the 5th Defendant by the Board of Directors of the 5th Defendant will dilute the 3rd Defendant’s controlling stake of 57.78% in the issued share capital of the 5th Defendant. [9] The 1st and 2nd Defendants have filed 3 applications, namely, Enclosure 59 which is the application for the Plaintiff to fortify its undertaking as to damages in the event Ad Interim Injunction is granted at the inter parte hearing, Enclosure 118 which is the application to stay and or vary the terms of the Ad Interim Injunction granted on 7.7.2021 and Enclosure 58 which is an application to set aside the ex parte Ad Interim Injunction. 5 [10] This judgment deals with the inter parte hearing of Enclosure 2 and Enclosures 58, 59 and 118 filed by the 1st and 2nd Defendants. Background Facts [11] The Plaintiff in this suit is seeking inter alia to have the sale of shares in the 5th Defendant by the 2nd Defendant (nominee of the 1st Defendant) to the 3rd Defendant pursuant to a Share Sale Agreement dated 22.6.2021 (‘Share Sale Agreement’) declared null, void, invalid and/or rescinded. [12] The subject matter shares in the Share Sale Agreement are the 132,151,497 shares in the 5th Defendant, equivalent to 57.78% of the total issued and paid-up ordinary share capital in the 5th Defendant (‘Turiya Shares’) [13] On or around 20.4.2008, the Plaintiff and the 1st Defendant entered into a Murabaha Facility Agreement (‘Facility Agreement’), whereby Islamic finance/banking facility was granted by the 1st Defendant to the Plaintiff for an amount of USD 83.3 million (‘Facility’). The Facility was to finance the Plaintiff’s voluntary take-over offers of the shares in the 5th Defendant (formerly known as Sitt Tatt Berhad) and in Chase Perdana Sdn Bhd (‘Offers’). The Plaintiff was required to repay USD 99,960,000.00 to the 1st Defendant by the maturity date on 15.4.2009. [14] In addition to the Facility Agreement, the following documents were also executed by the Plaintiff and 1st Defendant in connection with the grant of the Facility:- 6

Market Rate Agreement dated 20.4.2008;

Security Document (including the Share Charge Agreement);

the Guarantee (referred to in paragraph 9 below);

the documents constituting the Purchase Agreement as set out in the Notice of Identification of Assets, Seller Offer and Purchaser’s Acceptance dated 21.4.2008 under Ref: IDC-EHL-MFA-20.04.2008 [STB], and the Notice of Identification of Assets, Seller Offer and Purchaser’s Acceptance dated 21.4.2008 under Ref: IDC-EHL-MFA-20.04.2008 [CPD]. (collectively with the Facility Agreement referred to as the (‘Facility Documents’)) [15] The Facility Documents (including the Facility Agreement) were secured by a Share Charge Agreement dated 20.4.2008 entered into between the Plaintiff and the 1st Defendant (‘Share Charge Agreement’) whereby the Plaintiff:-

charged the shares it acquired pursuant to the voluntary take-over offers undertaken by the Plaintiff, including the Turiya Shares, to the 1st Defendant (‘the Charged

assigned to the 1st Defendant all rights, interest and claims (including voting rights) as beneficial owner of the Charged Securities, including the Turiya Shares (‘the Assigned Rights’) 7 [The Charged Securities and Assigned Rights (together with the Charged Moneys as defined in the Share Charge Agreement) are collectively the ‘Charged Assets’.] [16] The Share Charge Agreement was entered into and executed as a continuing security for the prompt payment, performance and discharge of the Secured Obligations (as defined in the Share Charge Agreement) by the Plaintiff, which includes the payment of all sums due or owing under or in connection with the Facility Agreement. [17] The Facility Agreement is also secured by the personal guarantee of Tan Sri Datuk Mohan MK Swami (‘TSM’) (‘the Guarantee’). [18] Pursuant to the Share Charge Agreement, the 1st Defendant is entitled at any time to sell the Charged Assets, including the Turiya Shares, without notice to the Plaintiff in the event of breach and/or default of the Facility Agreement and/or the Guarantee, which includes the failure by the Plaintiff to repay the outstanding sums owed to the 1st Defendant under or in connection with the Facility Agreement. [19] The Plaintiff and TSM failed to fully repay the outstanding sums of USD 99,960,000.00 owed to the 1st Defendant under the Facility Agreements and/or the Guarantee as at 15.4.2009, and were in breach of, in particular, the Facility Agreement, Share Charge Agreement and/or Guarantee. As a result, a civil suit was filed by the 1st Defendant at the Commercial Court in the United Kingdom 8 on 15.4.2010 against the Plaintiff and TSM for the outstanding sums (‘UK Suit’). [20] A Settlement Agreement dated 5.6.2010 (‘Settlement Agreement’) was thereafter entered between the Plaintiff, TSM and the 1st Defendant, whereby the parties agreed inter-alia that:-

the sum of USD 65,222,911.42 (USD 65,139,272.19 + USD 83,639.23) remained due and owing under the UK Suit;

a default judgement would be entered in the UK Suit against the Plaintiff and TSM for the outstanding sum of USD 65,222,911.42 and USD 2,208.98 = USD 65,225,120.40;

an additional sum of USD 16,075,949 remained due and owing under the Facility Documents (comprising of Facility Agreement, Market rate Agreement and Purchase Agreements) to the 1st Defendant;

that the total sums comprising of USD 81,215,221 shall be paid by instalments, with the last instalment being on or before 30 December 2010; and

that the late payment compensation accrued shall be paid on or before 30.12.2010 (that is, interest at 15% per annum from the date of the Settlement Agreement to the date the outstanding sums are repaid in full). [21] A final judgment was accordingly entered on 7.6.2010 by the 1st Defendant against the Plaintiff and TSM under the UK Suit for the 9 sum of USD 65,225,120.40, with judgment interest of 8% per annum until date of full payment (‘UK Judgment’). [22] The Plaintiff and TSM failed, refused and/or neglected to comply with the Settlement Agreement and/or UK Judgment, and are in breach thereof. The 1st Defendant had on 24.11.2010 registered the UK Judgment at the High Court of Malaya at Kuala Lumpur as a judgement of the High Court of Malaya (‘KLHC Judgment’). [23] Albeit with the entry of the UK Judgment and the KLHC Judgment, the Plaintiff and TSM still failed, refused and/or neglected to repay the outstanding sums (judgement sums), and are in breach thereof. [24] Consequently, the 1st Defendant commenced bankruptcy proceedings on or about 2.3.2016 against TSM (‘Bankruptcy Proceedings’) for the sum of USD 59,137,636.38. TSM was adjudged and declared a bankrupt by the High Court of Malaya at Shah Alam on 13.7.2017. [25] TSM remains an undischarged bankrupt as at 6.7.2021. [26] The Plaintiff had failed, refused and/or neglected to repay the outstanding judgement sums owed to the 1st Defendant under the UK Judgment and/or the KLHC Judgement, and remain in breach thereof. [27] The 1st Defendant had exercised its rights, which includes its rights pursuant to Clauses 3.1, 3.2, 3.4, 3.7, and 8 of the Share Charge 10 Agreement, to sell and/or dispose of the Charged Securities, namely the Turiya Shares, by the Share Sale and Purchase Agreement dated 22.6.2021 with the 3rd Defendant, for partial recovery of the outstanding sums owed by the Plaintiff. [28] A Share Sale and Purchase Agreement (‘Share SPA’) was entered into and executed between the 2nd Defendant and the 3rd Defendant on 22.6.2021. Pursuant to the Share SPA, the 3rd Defendant had acquired from the 2nd Defendant the 132,151,497 ordinary shares in the 5th Defendant (‘Turiya Shares’) at RM 0.18 per share, that is, for the total consideration sum of RM 23,787,269.46 (or approximately USD 5,663,635). [29] The purchase of the Turiya Shares by the 3rd Defendant from the 2nd Defendant was completed on 22.6.2021. Full payment for the Turiya Shares has been made by the 3rd Defendant to the 2nd Defendant and the 3rd Defendant is now the legally registered owner of the Turiya Shares. [30] An estimate by the 4th Defendant of the overdue and outstanding judgement debt owing by the Plaintiff is approximately USD 59,137,636.38 (equivalent to RM 249,785,548.55) as at 2.3.2016, plus continuing judgement interest thereon at the rate of 8% per annum until date of full payment. On a rough calculation, it is approximately USD 86,892,589 calculated up to March 2021 (this estimate was calculated by the 4th Defendant merely to provide an indication to the Honourable Court of the substantial amount involved and owing under the UK Judgment and/or KLHC Judgment). 11 [31] As at 22.6.2021, the total amounts overdue and owing by the Plaintiff remained unpaid, and continues to be so. There is no evidence that the Plaintiff was able to, and had readily available funds to make payment in full as at 22.6.2021, prior thereto or anytime thereafter. This is a significant fact as the Plaintiff had never offered to pay the First Defendant the full outstanding sums under the KLHC Judgment and or the UK Judgment to redeem the Charged Assets including the Turiya Shares. [32] In any event, the latest outstanding amount overdue and owing is approximately USD 84,360,125.64, as stated in the 1st Defendant’s and/or 2nd Defendant’s solicitors’ letter dated 28.6.2021.The above approximate judgment amount (less proceeds from the sale of the Turiya Shares, with judgment interest continuing thereon at 8% per annum until full payment, that is, approximately USD 6,498,316.32 per annum) is still overdue and owing by the Plaintiff as at to date. The UK Judgment and the KLHC Judgment remain unsatisfied. [33] The Plaintiff alleged that there was an agreement arrived at, and entered into via Whatsapp messages between TSM and Abdullah Taleb, a representative of the First Defendant which purportedly came about after the Share SPA was entered into and concluded on 22.6.2021. [34] The Plaintiff alleged that the market value of the Turiya Shares ought to be RM0.53 per share and that the sale of the Turiya Shares was at an undervalue price (the 132,151,497 Turiya Shares were sold at RM0.18 per share). 12 [35] It is not disputed that the amount of proceeds from the sale of the Turiya Shares if the said shares were valued and sold at RM0.53 per share would be RM 70,040,293.41 (or approximately USD 16,676,260), leaving approximately a judgment sum of USD 70,216,329, with judgment interest continuing thereon at 8% per annum until full payment, unpaid and owing by the Plaintiff. Court’s deliberation and decision [36] After perusing the written submissions and hearing oral submissions of counsel, I dismissed Enclosure 2 as I am is of the view that damages is adequate remedy in the event that the Plaintiff were to prevail at the trial of this action. Damages adequate [37] The Plaintiff’s main contention for the injunction rests on the argument that the Plaintiff is seeking, inter alia, to set aside the sale of the Turiya Shares between the 2nd Defendant and the 3rd Defendant and that the Turiya Shares represent a controlling block, therefore the said sale would result in the loss of the Plaintiff’s control of the 5th Defendant which it is contended is irreparable and cannot be compensated by monetary payment in the event the Plaintiff were to prevail at the trial. [38] The Plaintiff further premised its application for the injunction on the ground that an agreement has been reached between the Plaintiff and 1st and 2nd Defendants which entitled the Plaintiff to 13 redeem the Charged Assets including the Turiya Shares in consideration of a settlement sum of USD 54 million. [39] In the Statement of Claim, the Plaintiff’s causes of action against the Defendants are based on breach of a duty of care by the 1st and 2nd Defendants in the sale of the Turiya Shares to obtain a true and fair market price, unlawful use of insider information by the 4th Defendant, conspiracy to defraud, inducement of breach of contract, breach of section 188 and 217 of the CMSA and the Take-Over and Merger Code 2016 against all the Defendants. [40] All these causes of action are targeted at the ‘undervalue’ sale price for the Turiya Shares and not the 1st and 2nd Defendants’ right to sell the same, which learned counsel for the Plaintiff very candidly conceded, the 1st Defendant is entitled to do. [41] The Injunction is sought under Order 29, Sections 50, 51 and 53 of the Specific Reliefs Act, the inherent jurisdiction of the Court and under section 360(13) of the CMSA. [42] The Plaintiff has been in default of its obligations to pay the 1st Defendant the outstanding debts under the Facility Agreement since 2010. In fact from the period from 2010 until 2019, there was no attempt by the Plaintiff to settle the UK Judgment and or the KLHC Judgment debts at all. [43] Whilst there was some negotiations between the Plaintiff and the Bank during the period from September 2019 to September 2020, the Plaintiff had never offered to tender the payment of the entire 14 KLHC Judgment sum in order to redeem the Charged Assets including the Turiya Shares. This was notwithstanding the fact that the Plaintiff was aware that the Bank was negotiating with the 3rd Defendant on the sale of the Turiya Shares as early as February 2020 at the price of 0.18 sen per share. [44] In fact, even when Plaintiff found out that the 1st Defendant had disposed some 18,500,000 Turiya shares in the market sometime between 18.5.2021 to 10.6.2021, apart from making some enquiries, the Plaintiff did not offer to tender payment to redeem the Charged Assets or the Turiya Shares. [45] It is not in dispute that the Bank sold the Turiya Shares to the 3rd Defendant on 22.6.2021 and the sale was completed on the same day. The Turiya Shares have been duly registered in the name of 3rd Defendant. In short, the Share SPA has been performed and completed. [46] It is my judgment that upon the 1st Defendant exercising its power of sale in selling the Turiya Shares, the Plaintiff had in law lost its equitable right of redemption in respect of the Turiya Shares. The Federal Court in Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2006] 5 MLJ 21 at page 34 paragraph 36 established this proposition:- “In other words, since, in a mortgage, the title passes to the mortgagee with the mortgagor retaining the right of redemption, when the mortgagor defaults in the payment of the mortgage debt, the mortgagor "forecloses" i.e. bars the mortgagor from exercising the right of redemption....” (emphasis ours) 15 [47] Similarly, in Canopee Investment Pte Ltd & Ors v Landmarks Holdings Bhd & Ors [1989] 2 MLJ 469 at page 473 (B-C) which is a case that shows similar facts to our current case where the Plaintiff obtained loans from 3 banks and shares were pledged to the banks. The Plaintiff was subsequently in default under the loan agreement and liabilities had arisen thereunder. The High Court held that:- “In the present case I am unable to understand the plaintiffs' reference to interference with their equity of redemption. As long as the shares are not sold and still remain in the hands of the lenders, the plaintiffs can redeem by paying off the loan and proper charges. If they cannot do so, they should not be heard to complain if the lenders exercise their legitimate rights which have arisen by reason of the default of the plaintiffs. The situation may have been otherwise if the lenders were seeking to exercise their rights before the liabilities fell due but that is not the case here.” (emphasis ours) [48] In truth, the Plaintiff’s challenge in respect of the sale of the Turiya Shares to the 3rd Defendant is not premised on any assertion that it has been deprived of its equitable right of redemption (since the Plaintiff had not even attempted to pay the outstanding debt right up to the time of the sale), but rather that the price for the sale was at an undervalue. [49] The contention by learned counsel for the Plaintiff that by reason of the Defendants’ ‘inequitable conduct’, somehow the Plaintiff’s equitable right of redemption is resurrected or prevails to allow the Plaintiff to redeem the Turiya Shares has, with respect, no legal 16 basis. Once the 1st Defendant had exercised its rights of sale to 3rd Defendant, the Plaintiff’s equitable right of redemption is extinguished. In any case, it is not the Plaintiff’s case that it is prepared to pay the Bank the entire outstanding sums due under the KLHC Judgment. [50] Learned counsel for the Plaintiff’s contention is that the Turiya Shares should be sold at a premium given that they constitute a ‘controlling block’. Instead, the Plaintiff argued that the sale price was at a discount from the market price. [51] Assuming that the Plaintiff is able to prevail at the trial with this point, what this means is that the 1st Defendant would have to account to the Plaintiff the difference between the sale price and the ‘premium price’. The sum, if any, is quantifiable. [52] In fact, even if the Turiya Shares are sold at 0.53 sen per share which represents the net asset value for the share, the total consideration for the Turiya Shares will still not be close to the total outstanding sums owed by the Plaintiff to the 1st Defendant under the KLHC Judgment. [53] As regards the Plaintiff’s claim that the Injunction ought to be granted as an agreement has been concluded on 23.6.2021 which entitled the Plaintiff to redeem the Turiya Shares upon payment of the ‘settlement sum of USD 54 million within 2 weeks upon the nominal sum being paid’, I regret to state that I am of the view that the evidence simply do not support the existence of any such agreement at all. A simple perusal of the WhatsApp messages will 17 show that this claim does not even meet the necessary threshold to raise a serious question to be tried. [54] The ‘agreement’ was said to be have been concluded following WhatsApp exchanges between TSM and Abdullah Taleb. [55] However, before going into the contents of the WhatsApp messages, I must address the common contention by learned counsel for the Defendants regarding TSM’s capacity to negotiate with the 1st Defendant. TSM is an undischarged bankrupt and it is not disputed that TSM was not authorised by the Director General of Insolvency under section 38(1)(d) and 139 of the Insolvency Act to ‘… directly or indirectly taking part in the management of any company’. In this regard, there is no dispute that TSM is the sole shareholder of the Plaintiff and the ‘decision maker’ of the Plaintiff. [56] Section 38 of the Insolvency Act 1967 provides: ‘(1) Where a bankrupt has not obtained his discharge-

the bankrupt shall not, except with the previous permission of the Director General of Insolvency or of the court, enter into or carry on any business either alone or in partnership, or become a director of any company or otherwise directly or indirectly take part in the management of any company;’ [57] The Court of Appeal in Lee Soo You v Pembinaan Wincon Sdn Bhd & Ors [2012] 1 LNS 1085, had affirmed the above provision and held as follows:- 18 “PW1 asserted the fact that he had the permission of the OA [now the Director General of Insolvency ("the DGI") under the current provisions of the Bankruptcy Act 1967] to conduct business for the Plaintiff ie, his spouse, and to manage Ak Piling ie, the business owned by his spouse. The burden of proof is on PW1 to prove that he had the previous permission of the DGI to work as the Plaintiff's Manager and to enter into and carry on his wife's business. No such evidence was adduced. It can be concluded that PW1 did not have the previous permission of the DGI and was therefore entering into and carrying on the business of the Plaintiff, and taking part directly or indirectly in the management of Ak Piling in contravention of s. 38(1) of the Bankruptcy Act 1967 (see also Topps Co. Inc v. Mally Jaya Sdn. Bhd. [1998] 2 CLJ SUPP 235; [1998] 5 MLJ 744 and the Court of Appeal decisions in Leasing Corporation Sdn. Bhd. v. Indah Lestari Sdn. Bhd. [2007] 6 CLJ 548; [2007] 7 MLJ 506 and Lee Nyan Hon & Bros Sdn. Bhd. v. Metro Charm Sdn. Bhd. [2009] 6 CLJ 626 [2009] 1 LNS 866; [2009] 6 MLJ 450). That being the case, therefore PW1 was not legally competent to act for the Plaintiff and Ak Piling. Following the principles in the above 3 cases, it also means that PW1's evidence in Court, regarding his management and the carrying on of the business of Ak Piling with the Defendants in his capacity as an undischarged bankrupt, cannot be accepted”. [58] Therefore, based on the authorities above and Section 38(1) of the Insolvency Act 1967, TSM, as an undischarged bankrupt, is incompetent and has no legal capacity to enter into any arrangement, contract or agreement on behalf of the Plaintiff with Abdulla Taleb and/or the 1st Defendant and the 2nd Defendant. 19 [59] Whilst I accept that the 1st Defendant was fully aware of TSM’s status as a bankrupt, nevertheless, TSM had no capacity in law to negotiate and to conclude any agreement between the Plaintiff and the 1st Defendant. This was the reason why Abdullah Taleb had requested TSM to procure the Plaintiff’s solicitors to write to the 1st Defendant with the Plaintiff’s proposal for settlement. This was what led to the letter dated 26.6.2021 from Plaintiff’s solicitors to the 1st Defendant. [60] The contents of the letter however referred expressly to the WhatsApp messages as basis for a ‘concluded agreement’. This means that the Plaintiff had relied upon TSM to conclude the contract on its behalf. But this is precisely what TSM could not do as an undischarged bankrupt – to negotiate and conclude a contract on his own and or on behalf of another. On this ground alone, the Plaintiff’s reliance on the existence of the ‘agreement’ must fail. [61] Even if I am wrong and the Plaintiff’s solicitors’ said letter can be treated as the Plaintiff’s ratification of TSM’s action (without the DGI’s consent), it is still necessary to examine from the WhatsApp messages whether there was indeed a concluded contract or at the very least a serious question to be tried with regards to this issue. [62] When the Whatsapp messages are examined, it is abundantly clear that there could not be any concluded agreement as many of the important and fundamental terms had not even been agreed upon including the settlement sum. It is also unclear how the 20 Turiya Shares which had already been sold to 3rd Defendant are to be dealt with under the alleged ‘agreement’. The sum of RM 500,000.00 that was paid by the Plaintiff to the 1st Defendant purportedly in performance of the ‘agreement’ was in fact rejected. Even the purpose for the payment was not stated to be pursuant to any agreement but for ‘foreign worker fund’. [63] The relevant portions of the WhatsApp messages are reproduced below: “[23/6/21, 10:17:38 PM] ms: There is possibly a way out of all these amicably and with justice if the balance debt is paid to Ithmaar within two weeks and you return all the pledged shares and companies intact including Turiya. Funds are ready and available. [23/6/21, 10:22:16 PM] Abdulla Taleb: Didn’t understand? [23/6/21, 10:23:18 PM] Abdulla Taleb: Are you suggesting paying the whole outstanding of USD 54miliion++ * in 2 weeks time? [23/6/21, 10:25:46 PM] ms: Is the balance USD 54? Any way of having waiving part of interest? If so, yes, the amount will be repaid in 2 weeks.* [23/6/21, 10:27:32 PM] Abdulla Taleb: Will you put this in writing by the lawyer with earnest money to be paid immediately* [23/6/21, 10:27:35 PM] Abdulla Taleb: ? [23/6/21, 10:27:58 PM] Abdulla Taleb: In the next 2 days you pay a token amount* [23/6/21, 10:30:05 PM] ms: Yes law firm can send the letter tomorrow. I have a new legal firm now [23/6/21, 11:08:58 PM] Abdulla Taleb: What about the immediate payment?* 21 [23/6/21, 11:09:09 PM] Abdulla Taleb: How much you will pay now?* [23/6/21, 11:10:24 PM] ms: Can I inform tomorrow after I meet Dato Ilyas and his lawyer? They must be sleeping now. [24/6/21, 4:10:21 PM] Abdulla Taleb: But you really need to arrange for immediate payment [24/6/21, 4:10;28 PM] Abdulla Taleb: Before the 2 weeks [24/6/21, 4:18:26 PM] ms: Our side are ready with the settlement within 2 weeks once settlement agmt is agreed by you.* [24/6/21, 4:23:31 PM] ms: I have already discussed this and require yr kind assistance on the figures.* [25/6/21, 2:13:52 AM] Abdulla Taleb: The most important is your commitment to settle all the outstanding overdue facility Tan Sri [25/6/21, 2:18:10 AM] ms: Yes. It’s there. Tuku and MAA’s announcements last two days was a setback to the funders but your assurance that we can get back all our Turiya shares is the best news so far. [25/6/21, 2:23:26 AM] Abdulla Taleb: More than USD 55 million is overdue for more than 10 years* Tan Sri requires your immediate action [25/6/21, 2:29:30 AM] ms: Can you decide on a small haircut?* (*emphasis added) [64] Accordingly, I agree with learned counsel for the Defendants that there is no credible evidence before this Court to give rise to a serious issue to be tried in respect of the Plaintiff’s claim of a concluded agreement to settle the Plaintiff’s indebtedness to the 1st Defendant. 22 [65] In any case, even if the allegation of a concluded agreement can give rise to a serious question to be tried, the Plaintiff can seek specific performance of the agreement. The agreement does not give rise to any equitable right of redemption to the Plaintiff which was already extinguished when the Share SPA was entered into. Balance of Convenience [66] Apart from damages being an adequate remedy, the balance of convenience also lies in favour of not granting the Injunction as prayed. If the Injunction is granted and in the event the Plaintiff fails at the trial, the 3rd Defendant would be deprived of the opportunity to exercise its proprietary rights over the Turiya Shares, in particular, its voting rights at general meetings of the 5th Defendant. This may result in the minority shareholders of the 5th Defendant which include the Plaintiff being able to control or influence the outcome of any resolutions that are put to votes at such meetings. The prejudice that the 3rd Defendant will suffer arising from the aforesaid will be difficult to quantify. [67] In addition, the 3rd Defendant’s purchase of the Turiya Shares has triggered a Mandatory General Offer (‘MGO’). An injunction to restrain the MGO until the trial will have the effect of ‘suspending’ the MGO for at least 6 to 9 months or maybe even longer. In the event the Plaintiff’s claims are set aside at the trial, it is unclear if the MGO can still be carried out without prejudicing either the 3rd Defendant and or the minority shareholders. The uncertainty will give rise to loss of confidence in our securities market. Such damages will be difficult to assess. 23 [68] Further, the 5th Defendant will convene its Annual General Meeting on 27.9.2021 and one of the proposed resolution is to issue new shares of up to 10% of the total issued share capital of the company. If the 3rd Defendant is restrained from exercising its voting rights, the resolution could potentially dilute its shareholding. [69] On the other hand, if the Injunction is not granted and the Plaintiff were to prevail as the trial, even if the sale of the Turiya Shares is set aside, these shares would revert back to the 1st/2nd Defendants to be sold again albeit perhaps at a higher price. In this regard, it is pertinent to state the Plaintiff’s never had any management rights in the Turiya Shares after the same was charged to the 1st Defendant as the same had been assigned to the 1st Defendant. Thus, the complaint that the Plaintiff would be prejudiced in not being able to exercise its voting rights is purely illusory. [70] Also, notwithstanding that the MGO has been triggered and the Plaintiff is seeking to set aside the Share SPA, the 3rd Defendant is opposing the grant of the Injunction. This means that the 3rd Defendant is prepared to accept the risks of proceeding with the MGO and the consequences of its purchases of the shares from the minority shareholders in the event the Share SPA is set aside at the trial. Section 360 of CMSA [71] Learned counsel for the Plaintiff has also relied on section 360 of the CMSA as an alternative basis for the Injunction. This injunction based on statute, according to learned counsel for the Plaintiff 24 does not require to meet the same tests as set out in Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1955] 1 CLJ 293. [72] It is the Plaintiff’s case that the sale of the Turiya Shares is in breach of the CMSA and the Malaysia Take-Over and Merger Code 2016 issued pursuant to section 217 of the CMSA. Any person aggrieved by a breach of Part VI of the CMSA (including section 217 and the Code) may commence civil proceedings to recover the loss under section 357 of the CMSA and apply for various remedies under section 360 (d) of the CMSA. The Plaintiff also relied on section 188 of the CMSA claiming that D3’s acquisition of the Turiya Shares was unlawfully procured using insider information which attracts civil liability under section 201 of the CMSA. This insider information was used to acquire the Turiya Shares at an undervalue price. [73] In respect of this contention, the Court of Appeal in Lai Soon Onn Chew Fei Meng and other appeals [2019] 2 MLJ 96 and Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2017] 4 CLJ 587 have already determined that in respect of section 357 of the CMSA, there must first be a determination by the Securities Commission before a person can institute any civil remedies under the said section. [74] In Lai Soon Onn v Chew Fei Meng and other appeals [2019] 2 MLJ 96, the Court of Appeal held:- 25 “[43] Gleaning through the provisions of the CMSA, it is the intention of the Act that the bodies established under the Act are regulatory bodies and it is not the function of the court to usurp their function nor to second guess their decisions. In R v International Stock Exchange of UK and Ireland Ltd, ex parte Else Ltd [1993] 1 QB 534, Lord Bingham observed that “the court will not second guess the informed judgment of responsible regulators steeped in knowledge of their particular market.” This court applied the same principle in Shahidan Shafie (supra) in arriving at its decision when interpreting section 153 of the SCA. To interpret otherwise would result in a situation where there would be two decisions, one of the court and the other from the SC. That cannot be the position in law (refer to paragraph 29 of Shahidan Shafie (supra). The courts have shown a reluctance to interfere with the decision of regulatory bodies in carrying out its objective in the absence of mala fide or acting in excess of jurisdiction. A similar stance was taken by this court in Bursa Malaysia Securities Berhad (supra) and also in Khiudin bin Mohd & Anor v Bursa Malaysia Securities Bhd and another application [2012] 6 MLJ 131 which had referred to various commonwealth jurisdictions, which demonstrated the attitude of the courts in reviewing the decision made by the regulators in different jurisdictions. Therefore, it is not within this court’s jurisdiction to interfere with the duties mandated to the market regulatory bodies in maintaining and promoting the interests of the public in dealing on the exchange and these bodies should be left to carry out its objective as stipulated under the Act. [44] Therefore, a person who has suffered loss or incurred damage may institute a civil action to recover the amount of the loss or damage after a contravention of any provision or any regulations made under the CMSA has 26 been determined by the SC. It is not necessary for the courts to adjudicate whether there is a contravention of the Act before section 357 (1) of the CMSA can be applied. All that is required is for the SC first to determine whether there was a contravention. : : It makes more sense if we are to construe that section 357 of the CMSA can only be invoked once there is a ruling from the SC as to whether there is a contravention rather than be left to the civil courts to make such findings. Shahidan Shafie (supra) had addressed the problem that could be encountered if prior ruling from the SC was not obtained as follows: “[29]…….Our interpretation reconciles s 153 with the other provisions in the SC Act and that is the private cause of action for breach of statutory duty is preserved to the extent only after the Securities Commission has made a specific ruling. This would avoid a situation where there would be two decisions, one of the court and the other the Securities Commission. This scenario would bring uncertainty to the business world which must be avoided. Our interpretation allows only one decision at one time and that is the decision of the Securities Commission until the same is either set aside or substituted by the courts.” [65] The Court in Mak Siew Wei (supra) also failed to consider section 41 of the SRA as to the existence of the rights of the Plaintiff therein in seeking for a declaration that the 7 Defendants were acting in concert to obtain control of the 8th Defendant (company), that they had contravened section 218(2) of the CMSA and section 9 (1) of the Take-Over Code for their failure to undertake a MGO for the shares in the 8th Defendant. Like in our present case, the Defendants therein also submitted 27 that the Plaintiff’s claim on the tort of unlawful conspiracy could not be sustain premised on the same alleged breach of the CMSA and the Take-Over Code, which, following from Shahidan Shafie (supra) was only actionable if there was a prior ruling of the same by the SC.” [75] Further in Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2017] 4 CLJ 587, the Court of Appeal held :- “[26] It is our view that premised on the aforesaid provisions, it can be said that it is the intention of Parliament for the Securities Commission to be tasked to supervise, regulate, issue rulings from time to time and enforce the practices of companies bound by the SC Act 1993 and the Take-Over Code. The learned judge in the High Court in fact found that the only remedy available to the plaintiff was to complain to the Securities Commission about the conduct of the defendants and if the Securities Commission failed to act or makes a ruling unfavourable to the plaintiff, his only option was to apply to the court for judicial review of the decision of the Securities Commission. In short, the plaintiff's remedy was one of public law”. [76] The Court of Appeal in Shahidan Shafie v Atlan Holdings Sdn Bhd & Anor [2017] 4 CLJ 587 further held:- “[29] If we were to adopt the interpretation of s. 153 of the SC Act of the plaintiff, it would amount to the court stepping into the shoes of the Securities Commission which is tasked to supervise and regulate the conduct of companies. As we have said earlier, that is not and cannot be the intention of Parliament. Our interpretation reconciles s. 28 153 with the other provisions in the SC Act and that is the private cause of action for breach of statutory duty is preserved to the extent only after the Securities Commission has made a specific ruling. This would avoid a situation where there would be two decisions, one of the court and the other the Securities Commission. This scenario would bring uncertainty to the business world which must be avoided. Our interpretation allows only one decision at one time and that is the decision of the Securities Commission until the same is either set aside or substituted by the courts”. [77] I am also of the view that the civil remedies availing to the Plaintiff under sections 201 and 357 of the CMSA, if any, are confined to loss and or damages only. [78] As regards section 360, the Court of Appeal in Lai Soon Onn v. Chew Fei Meng and other appeals (supra) has also decided that the said provision is only available to any breach or contravention of the provisions in the CMSA where the words ’relevant requirement’ appear. The Court of Appeal has specifically excluded sections 217 to 220 of the CMSA from the application of section 360. [79] I am bound by the decisions and accordingly, the Plaintiff’s reliance of section 360 of the CMSA for the Injunction is also dismissed. 29 Conclusion [80] For the reasons stated above, the Plaintiff’s application under Enclosure 2 is dismissed with costs. [81] Following from the dismissal of Enclosure 2, there is no need to deal with Enclosure 59 which is the application by 1st and 2nd Defendants for the Plaintiff to fortify its undertaking as to damages in the event an Injunction is granted. Neither is there a need for this Court to consider Enclosure 118 which is the application by the 1st and 2nd Defendants to stay and or vary the terms of the Ad Interim Injunction granted on 7.7.2021. [82] By reason of my finding above, I am also allowing Enclosure 58 which is the application by 1st and 2nd Defendants to set aside the ex parte Ad Interim Injunction granted on 7.7.2021. Dated the 1st day of October 2021 ONG CHEE KWAN Judicial Commissioner High Court of Kuala Lumpur, NCC2 30 COUNSEL:

Tan Sri Tommy Thomas together with Mr. Ganesan A/L

Datin Jeyanthini Kannaperan together with Mr. Dhinesh Bhaskaran, Mr. Koo Yin Soon and Ms. Chong Yun Xin for 1st and 2nd Defendants

Mr. Prem Anand S/O Theruvengadam together with Mr. Joseph Michael Raj A/L Joseph Alexander and Mr. Sathish A/L Mavath Ramachandran for 3rd Defendant

Mr. Christopher Leong Sau Foo together with Mr. Ng Jack Ming for 4th Defendant

Mr. Poh Choo Hoe for 5th Defendant Messrs. Shook Lin & Bok (Kuala Lumpur)

Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd [2006] 5 MLJ 21

Canopee Investment Pte Ltd & Ors v Landmarks Holdings Bhd &

Ors [1989] 2 MLJ 469 Lee Soo You v Pembinaan Wincon Sdn Bhd & Ors [2012] 1 LNS 1085 31

Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1955] 1 CLJ 293

Lai Soon Onn Chew Fei Meng and other appeals [2019] 2 MLJ 96

Shahidan bin Shafie v Atlan Holdings Bhd & Anor [2017] 4 CLJ 587

Order 29 Rule 1 and/or 2 and/or Order 92 Rule 4 of the Rules of Court 2012 2. Sections 50, 51 and/or 53 of the Specific Relief Act 1950 3. Sections 188, 201, 217 to 220, 357 and/or 360 of the Capital Market and Services Act 2007 4. Section 38(1)(d) and 139 of the Insolvency Act1967