Govindasamy A/l Sellaiah v 1. ) ALH Industries Sdn Bhd (BA-22NCvC-431-11/2021)

1.

PENTADBIR TANAH PETALING PEJABAT DAERAH & TANAH PETALING …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The 1st Defendant applies to strike out the action brought by the Plaintiff pursuant to O. 18 r. 19(1)(a), (b) or (d) and/or O. 92 r.4 Rules of Court 2012, on the primary ground that the issues raised in this action had either been determined with finality or ought to have been raised in prior suits involving the Plaintiff 25/08/2025 10:34:09 BA-22NCvC-431-11/2021 Kand. 87 and the 1st Defendant. The present action is an attempt by the Plaintiff to re-litigate these issues which will be tantamount to allowing a multiplicity of proceedings. Salient facts [2] A history of litigation spanning 10 years precedes the present suit filed by the Plaintiff against ALH Industries Sdn. Bhd., the 1st Defendant. (“D1”). The narrative of prior events is as follows. [3] On 15.12.2004 parties entered into a sale and purchase agreement (“SPA”) in respect of a piece of property identified as H.S (M) 703, No. PT 7514, Tempat Bukit Cheraka, Mukim Bukit Raja, Daerah Petaling, Negeri Selangor Darul Ehsan (“said Land”). Arising from the SPA, a dispute arose when the Plaintiff refused to complete the sale after D1 had paid 20% of the purchase price. [4] On 13.4.2011, D1 filed a suit against the Plaintiff in the Shah Alam High Court vide BA-22NCVC-439-2011 (“Suit 439”) for inter alia specific performance of SPA. [5] On 21.6.2012, the High Court granted the specific performance by way of a judgment in default. Pursuant thereto, D1 performed his part of the bargain by paying the balance purchase price in compliance with the court order for specific performance. [6] On 27.9.2013, the Plaintiff applied to set aside the judgment in default granting the order for specific performance. He was unsuccessful when the High Court dismissed his application on 7.5.2014. [7] The Plaintiff appealed against the dismissal of his application to the Court of Appeal. However, he subsequently discontinued the appeal. [8] As the Plaintiff had discontinued his appeal, D1 then took steps to effect registration of the said property to itself by the necessary presentation at the land office, the office of the 2nd Defendant (“D2”). At the land office, D1 was informed that the said property had been transferred by the Plaintiff to one S. Shanmugam. The registration was effected on 10.3.2014 during the course of the proceedings by the Plaintiff to set aside the order for specific performance. [9] D1 had no knowledge nor was notified of the registration of transfer. [10] In view of the unexpected turn of events, D1 commenced action in the Shah Alam High Court vide BA-22NCVC-450-08/2015 (“Suit 450”) to recover the said property. S. Shanmugam and the Plaintiff were cited as Defendants. [11] The hearing of Suit 450 proceeded by way of trial with witnesses. On 5.6.2018, the High Court gave judgment for D1, wherein S. Shamugam’s name on the title was ordered to be removed and the Plaintiff was ordered to transfer the said property to D1. [12] Both S. Shamugam and the Plaintiff appealed to the Court of Appeal. Their appeal was dismissed on 1.4.2022. They then filed for leave to appeal to the Federal Court, but was unsuccessful when the Federal Court dismissed their leave application on 14.11.2022. [13] In view of the Plaintiff and S. Shanmugam’s refusal to abide with the decision in Suit 450, D1 was compelled to apply for an order in the same suit that vacant possession be handed over by them and that they effect transfer of the said property to D1. D1’s application was granted by the High Court on 29.11.2024. [14] After the decision of the High Court in Suit 450, the Plaintiff commenced the present action on 12.11.2021. The Plaintiff seeks to impeach the judgment in Suit 439 on the grounds that the judgment in default obtained therein was procured by fraud perpetrated on the court by D1 and/or its director one Ang See Chuan (“ASC”). [15] The particulars of fraud are as set out in paragraph 22-28 of the Plaintiff’s Amended Statement of Claim. The Plaintiff claims that ASC’s affidavit in support of the application for judgment in default failed to inform the court of material facts and also misrepresented pertinent facts as follows:-

that the Sale and Purchase Agreement dated 15.12.2004 was subject to Conditions Precedent which had not been fulfilled on the date the judgment in Suit 439 was pronounced. The Conditions Precedent are firstly, a court order was required to sell the said property to D1 pursuant to s. 60 of the Probate and Administration Act 1959 and secondly, a Consent to Transfer the said property to D1 must be issued by the land office;

(ii) that the said property no longer belonged to the estate of the deceased after 14.3.2006 as it had been vested in the name of Govindasamy a/l Sellaiah in his personal capacity;

(iii) that the Plaintiff had agreed to the terms of the letter dated 11.4.2010 sent by D1’s solicitors in that he would forward the original issue Document of Title and other relevant documents to D1’s solicitors following which, the balance purchase price will be released to the Plaintiff. The Plaintiff denies his purported acceptance of the terms in the letter dated 11.4.2010 denied as the signature of the Plaintiff’s agent therein is disputed by the Plaintiff and its agent;

(iv) that the Consent to Transfer purportedly dated 8.4.2010 (“Consent to Transfer”) issued by Pejabat Daerah dan Tanah Petaling is not genuine. The Plaintiff claims that the application for consent was made without his knowledge, consent or authorization. [16] The Plaintiff further alleges that the alleged fraud was discovered only sometime in August 2021. At the material time, the appeal in Suit 450 was pending in the Court of Appeal. Both S. Shanmugam and the Plaintiff had a meeting in the law office of Messrs. Amir & Rajpal Ghal to discuss a possible suit by S. Shanmugam against the Plaintiff for indemnity as the former stood to lose the land if the outcome of the appeal in Suit 450 was not in the Plaintiff’s favour. It is a pertinent fact that the Plaintiff never denied entering into a Sale and Purchase Agreement dated 15.8.2011 with S. Shanmugam. [17] It was at this meeting that the Plaintiff was advised that the Consent to Transfer dated 8.4.2010 was questionable as he did not sign any application for consent. [18] A further meeting on 2.9.2021 with a representative from the Pejabat Daerah Tanah Petaling appeared to confirm the fact that there was fraud in the issuance of the Consent to Transfer. [19] In the light of the discovery of fraud, the Plaintiff has filed the present suit seeking the following reliefs:-

A declaration that the Sale and Purchase Agreement dated 15.12.2004 was terminated ipso facto for non-fulfilment of the Conditions Precedent;

(ii) A declaration that the Sale and Purchase Agreement is terminated due to frustration because the estate of Sellaiah a/l Murugayan no longer owns the land;

(iii) That the judgment dated 21.6.2012 obtained by the 1st Defendant vide Shah Alam High Court Civil Suit No: BA- 22NCVC-439-2011 (Suit 439) be declared to have been obtained by fraud perpetrated by the 1st Defendant and/or its agent against this Honourable Court and the Plaintiff;

(iv) That the judgment dated 21.6.2012 obtained by the 1st Defendant vide Shah Alam High Court Civil Suit No: BA- 22NCVC-439-2011 against the Plaintiff be and is hereby impeached and set aside in its entirety;

A declaration that the Letter of Consent dated 8.4.2010 issued by the Pejabat Daerah dan Tanah Petaling to transfer the said Land to the 1st Defendant is null and void; and

(vi) General damages to be assessed against the Defendants. [20] D1 contends that the Plaintiff’s suit is an attempt to re-litigate issues which have been decided or which could have been raised in the earlier proceedings with reasonable diligence. His conduct of filing the present action amounts to bringing multiple suits. The circumstances of the present suit is scandalous, frivolous and vexatious as well as an abuse of the court’s process. Analysis and decision of this court [21] The law on striking out of pleadings is trite. This power is exercised to avoid the unnecessary time and expense of a trial. However, the courts have recognized that as this is a summary power, it is only to be exercised in plain and obvious cases and where the claim is obviously unsustainable. This principle has been restated in many cases and is trite law. (See: Bandar Builders Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36; Seruan Gemilang Makmur Sdn Bhd v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 1 CLJ 1). [22] The legal position in respect of striking out of pleadings was reiterated by the Federal Court in Tan Wei Hong (a minor suing through guardian ad litem and next friend Chuang Yin E) & Ors v Malaysia Airlines Bhd and other appeals [2019] 1 MLJ 59, where it was held, [17] The tests for striking out application under O 18 r 19 of the ROC, as adopted by the Supreme Court in Bandar Builder are, inter alia, as follows:

it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable;

it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 of the ROC; and

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. [23] I am also mindful that the striking out procedure is a summary one, hence the Court’s power to strike out a claim should be exercised sparingly, as stated by the Court of Appeal in Sivakumar a/l Varatharaju Naidu v Ganesan a/l Retanam [2011] 6 MLJ 70 which held, [13] The summary procedure under O 18 r 19 of the RHC should only be resorted to when it is conspicuously clear that the plaintiff's claim, on the face of it, is obviously unsustainable… [15] It must be borne in mind that the power to strike out must be exercised by the court sparingly (Roslan bin Abdullah v New Zealand Insurance Co Ltd [1981] 2 MLJ 324 (FC); Datuk Ir Che Amran bin Mohd Yusoff v Yayasan Melaka & Ors [2003] MLJU 7; Seng Huat Hang Sdn Bhd & Ors v Chee Seng & Co Sdn Bhd [1987] 1 MLJ 413; Mooney & Ors v Peat, Marwick, Mitchell & Co & Anor [1967] 1 MLJ 87; Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor and another appeal [1998] 2 MLJ 498 (CA); and Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corp Bhd). [16] It is a rule of thumb that if it can be shown that the pleadings do disclose some cause of action or that it has raised some question fit to be decided, then the case should be set down for argument notwithstanding that the chances of success are minimal (Saripah bte Manap & Ors v Emar Sdn Bhd (in dissolution) & Ors [1998] 1 MLJ 323). [17] Of pertinence would be this. That pleadings must be entirely hopeless, baseless or without foundation in law or in equity before they can be struck out. [24] Bearing in mind the principles as afore stated, it leaves me now to consider the merits of D1’s application to strike out the Plaintiff’s pleadings and to have the suit dismissed. Having given due consideration I am of the view that D1’s application ought to be allowed for the following reasons. [25] The Plaintiff’s cause of action is evident from paragraph 4 of its Amended Statement of Claim which states:-

The Plaintiff’s action herein is to impeach and/or set aside the impugned judgment of this Honourable Court dated 21.6.2012 obtained by the 1st Defendant against the Plaintiff vide Shah Alam High Court Civil Suit No. 22- NCVC-439-2011 (hereinafter referred to as “the Shah Alam High Court Civil Suit No. 22-NCVC-439-2011”) on the grounds that the judgment has been obtained by the 1st Defendant by way of fraud committed/perpetrated on this Honourable Court, and the 2nd Defendant by the 1st Defendant. [26] A suit premised on fraud does not automatically make it unchallengeable or incapable of being struck out summarily by way of an O. 18 r 19 Rules of Court 2012. The court is entitled to scrutinize the circumstances fraud is raised to decide whether there is ground not to allow the suit to proceed. [27] To my mind, the judgement in default in Suit 439 had been rendered a final judgment when the Plaintiff failed to have it set aside. His appeal against the dismissal of his application was withdrawn. Notwithstanding the course of action taken, he now mounts a challenge to the judgment by filing the present suit to impeach the judgment on grounds of fraud. [28] To recapitulate, the Plaintiff alleged concealment of the fact of non-fulfillment of the Condition Precedent in the SPA of 15.12.2004. As an administrator of the estate of Govindasamy a/l Sellaiah, the deceased, he was required to obtain a court order pursuant to s. 60 of the Probate and Administration Act 1959 [Act 97] prior to the sale of the said Land. [29] To my mind, the fact that a court order was required was a point could have been taken in the Plaintiff’s application to set aside the judgment in default. If this Condition Precedent was not fulfilled at the time of the judgment in Suit 439, the Plaintiff ought to have been aware. As the administrator of the estate of the deceased, he cannot feign ignorance as to the requirements of the law viz a viz s. 60 of Act 91. [30] The Plaintiff’s attempt to raise the non-fulfillment of this Condition Precedent as a reason to allege fraud on D1 some 9 years after the judgment of 21.6.2012 the attracts the application of the wider principle of res judicata. [31] The locus classicus for the principle of res judicata in Malaysia is the Supreme Court case of Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189. The Supreme Court explained the rationale for the principle lies in fact that it is in the public interest that there should be finality in litigation. Apart from precluding causes of action which had been litigated, the principle also covers issues which might have been and which were not brought forward to be decided by the court. [32] The relevant passage reads, The starting point ought to be the celebrated passage by Wigram VC in the case of Henderson v Henderson (1843) 3 Hare 100 at p 115 which is: The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time. [33] The judgment of the Federal Court in Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1 is also instructive on the application of the res judicata principle. The Federal Court held, [80] The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v Henderson (1843) 3 Hare 100) and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are:

a party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel);

if a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (ie to recover further damages);

the doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the claimant’s only right is the judgment itself;

a party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel);

(e)

(e)a party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the ‘Henderson v Henderson principle’); and

there is a general procedural rule against abusive proceedings. (See also: Arkitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 6 CLJ 93) [34] The Plaintiff had every opportunity to raise the issue of non-fulfillment of the Condition Precedent relating to a court order to sell the said Land, but for reasons best known to himself, he failed to. It is not open to the Plaintiff to now raise it in this suit in an attempt to set aside the judgment dated 21.6.2012. One cannot but surmise that the Plaintiff is attempting to have another bite at the proverbial cherry. [35] Apart from the absence of a court order, the Plaintiff pleaded that he did not apply for the requisite consent to transfer by the State Authority. [36] The stand taken by the Plaintiff in these proceedings that he did not apply for consent is inexplicable. It is totally contrary to the position he took in Suit 450. His evidence on oath given through his Witness Statement was as follows:- S 15: Adakah kamu membuat permohonan untuk mendapat kebenaran untuk pindahmilik hartanah tersebut kepada Plaintif (ALH Industries Sdn Bhd)? J: Ya, saya pernah membuat permohonan tersebut dan pada 8/4/2010 Surat Kebenaran Pihak Berkuasa Negeri telah dikeluarkan dan surat tersebut telah diterima oleh peguamcara Plaintiff lebih kurang pada 15/8/2010. [37] Clearly, his evidence in Suit 450 was that he applied for the Consent to Transfer. It is not open for him to now take a diametrically opposite stand by alleging otherwise. To do so will be to allow him to resile from his earlier stand. I find his about turn an untenable position to take. It renders his allegations of fraud that although he did not apply for the Consent to Transfer it was issued, suspect. [38] D1 submits that the judicial estoppel prohibits the Plaintiff from now taking a contrary position and reneging on his prior stance. In support of the argument of judicial estoppel, the case of Leisure Farm Corporation Sdn Bhd v Kabushiki Kaisha Ngu & Ors [2017] 5 MLJ 63 was referred to. The Court of Appeal held, [16] ….It is clear to this court that the object of judicial estoppel is to prevent a party who assumes a particular position in litigation to take an inconsistent position in later litigation… [17] Also cited by learned counsel in the course of his oral submission on this point is this court’s decision in the case of Zulpadli bin Mohammad & Ors v Bank Pertanian Malaysia Bhd [2013] 2 MLJ 915 in which it was held that the respondent’s own admission in the earlier suit as well as the amended statement of claim in the present suit showed that the appellants were innocent victims as much as the respondent was. The respondent was estopped from taking a position different from that pleaded in its defence in the earlier suit. Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery. Judicial estoppel seeks to address the incongruity of allowing a party to assert a position in one court and the opposite in another tribunal (Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] MLJU 273). [39] I find the submission of D1 to have merit upon considering the principle of judicial estoppel enunciated by the Court of Appeal. [40] Putting aside the Plaintiff’s inconsistent stand in Suit 450, the fact that he did not apply for the consent of the State Authority, and hence the Condition Precedent in the SPA was not fulfilled, is a point which again, ought to have been raised in Suit 439. That it was not can only suggest some want of diligence on his part. Res judicata applies to preclude the point being raised now. The court cannot condone inadvertence of a party and allow him to litigate what was missed in the earlier proceedings. [41] Finally, the fraud relied on by the Plaintiff also pertain to the letter of 11.4.2010 issued by Messrs LL Kee & Co. acting as D1’s solicitors, to the Plaintiff. (See: paragraphs 25-27 of the Amended Statement of Claim). This letter enclosed a CIMB cheque for the amount of RM 50,000.00 in favour of the Plaintiff, which was intended as part payment towards the purchase price of the said Land. The Plaintiff denies acknowledging receipt of the letter either by him personally or his agent. He also disputes accepting the terms stated in the said letter. [42] Once again, D1 demonstrated that the Plaintiff’s averment in his pleadings is totally contrary to his evidence in Suit 450. In his Witness Statement in Suit 450 the Plaintiff admitted to receiving the amount of RM 50,000.00 which was enclosed with the letter of 11.4.2010 from D1’s solicitors. The Plaintiff’s agent, one Renganathan a/l Velian also confirmed the same. Yet in these proceedings, the Plaintiff asserts to the contrary in paragraph 27 of his Amended Statement of Claim. Judicial estoppel operates to preclude him from so doing. [43] I cannot but find that the entire claim of the Plaintiff brought against D1 is an attempt to litigate matters which belong to Suit 439 and 450. Such conduct cannot be but an abuse of the process of the court. The court cannot condone improper use of its process to serve the questionable objectives of a litigant. [44] In this regard I refer to the case of Middy Industries Sdn Bhd & Ors v Arensi-Marley (M) Sdn Bhd [2013] 3 MLJ 511 where the Federal Court held, The phrase ‘abuse of process’ under r 19(1)(d) signifies that the process of the court must be used bona fide and properly and must not be abused. It includes consideration of public policy and interest of justice. The court will prevent any improper use of its machinery. It will prevent the judicial process from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed and will depend on all the relevant circumstances of the case. If an action was not brought bona fide for the purpose of obtaining relief but for some other ulterior or collateral purpose, it might be struck out as an abuse of the process of the court (see Gabriel Peter & Partners (Suing as a Firm) v Wee Chong Jin& Ors [1998] 1 SLR 374 and Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489). Conclusion [45] To conclude on the application by D1, I find the facts now raised by the Plaintiff to found its suit on fraud to impeach the judgment in Suit 439 are precluded by res judicata and judicial estoppel. The court cannot allow multiple suits to be brought where the issues have expired for failure to advance it in the earlier proceedings or where contrary stands are taken. [46] The Plaintiff’s attempt to set aside the judgment in Suit 439 therefore falls squarely within O. 18 r. 19 (b) and (d) of the Rules of Court 2012. In the result, the application of D1 in enclosure 66 to strike out the Plaintiff’s pleadings and have his action dismissed, is allowed. [47] As for the suit against the 2nd Defendant (“D2”), the issue pleaded is confined only to the issuance of the Consent to Transfer. This issue is however intertwined with the issues raised by Plaintiff in his suit against D1. In view of the outcome of enclosure 66, the suit against the 2nd Defendant can no longer stand and I exercise my discretion to similarly strike out the Plaintiff’s pleadings and dismiss his action against D2. I also order that the Plaintiff pay each of the Defendants costs of RM 5,000.00. Dated: 22nd August 2025 -sgd-Alice Loke Yee Ching Judge High Court In Malaya At Shah Alam Negeri Selangor Counsel for the Plaintiff: Encik Ahmad Amir bin Mahmood (Messrs Amir & Rajpal Ghai) Counsel for the Defendants: Dato’ Manpal Singh Sachdev (Mr. Tan Weng Hung with him) (Messrs. Manjit Singh Sachdev, Mohammad Radzi &