Intermedeco Sdn. Bhd. v Exelle Medical Sdn. Bhd. (WA-28NCC-192-02/2024)

Enclosure 1 is a Petition to wind-up the Respondent based on a Statutory Notice served on the Respondent on 10.01.2024. Service of the Statutory Notice is not disputed.

The Petitioner claims for a sum of RM127,007.58 allegedly due from the Respondent based on transactions under a Sub-Distribution Agreement.

It is noted that the Petitioner did not obtain any judgment against the Respondent prior to filing this Petition. The Petitioner’s claim is solely based on the Purchase Orders, Delivery Orders and Invoices issued by the Petitioner (see exhibits E, F and G of Enclosure 1).

Prior to the filing of this Petition, the Parties have filed the following civil suits both in the Sessions Court and the High Court respectively: 3 a) A Kuala Lumpur Sessions Court suit case number of WA-A52NCC- 4316-10/2023 (“Sessions Court Suit 4316”) filed by the Petitioner on 16.10.2023 against the Respondent claiming for the debt allegedly owed by the Respondent for the sum of RM127,007.50 (“Alleged Debt”) being the exact sum in the Petition filed herein. b) A Kuala Lumpur High Court suit filed by the Respondent on 27.10.2023 bearing the Suit No.: WA-22NCC-785-10/2023 (“High Court Suit 785”) against MK Medilance (first defendant), Petitioner (second defendant) and Chin Keh Joo (third defendant) for the losses and damages suffered, in the sum of RM2,731,453.70 (“Respondent’s Claim”) being the special damages and general damages. The Respondent's causes of action in the High Court Suit 785 are for (i) the breach of the Sub-Distribution Agreement by MK Medilance and (ii) the conspiracy to injure the Respondent's business and interests by the Petitioner, MK Medilance and Chin Keh Joo.

Enclosures 13, 18 and the Respondent's Reply Affidavit (“AIR”) filed herein equally reflects the Respondent's causes of actions in the High Court Suit 785 and its defence in the Sessions Court Suit 4316.

A summary judgment application filed by the Petitioner against the Respondent in the Sessions Court Suit 4316 over the same claim as in this Petition, for the sum RM127,007.50 was dismissed by the Sessions Court on 09.05.2024 with costs of RM3000.00 to be paid to the Respondent. Suit 4316 is now pending trial. The Respondent maintains its position that the Alleged Debt in the Sessions Court Suit 4316 and the sum claimed herein (sum identical to the Alleged Debt) are altogether derived from the same and/or series of transactions pursuant to the Sub-Distribution Agreement.

The Petitioner contends that the sum claimed in this Petition was never disputed because the Respondent failed to reply to the Statutory Notice issued and served upon it.

The Petitioners further contends and I quote verbatim its’ submission at paragraph 18 of its’ submission in reply:

Referring to paragraph 29 of the Respondent’s submission, the petitioner submits that Suit 785 ought not to be considered by this Honourable Court as it involves different issues at large in which the debt claimed by the Petitioner is this Petition is not being claimed in suit 785. Thus, it cannot be considered as a bona fide dispute on the debt. [9] Again at para 19 the Petitioner submits:

Referring to paragraphs 30, 31, 32, 33 and 34 of the Respondent’s Submission, the petitioner reiterates the above paragraph that Suit 785 do not involve the debt claimed in this Petition at all. Moreover, the Petitioner has the statutory right to initiate this proceeding against the Respondent due to the Respondent’s failure to reply and/or deny the said Notice of Demand. [10] In addressing Paragraphs 4 and 10 of Enclosure 26, the Respondent submits that any commercial terms (if any) were agreed upon BETWEEN MK Medilance and the Respondent and NOT with the Petitioner, as alleged. In fact, this position was admitted by the Petitioner in their defence in the High Court Suit 785. Thus, the Respondent submits that this Petition is obviously unsustainable. The Respondent contends that this Petition is unsustainable from the outset, as the Petitioner lacks the locus standi to issue the Statutory Notice of Demand and initiate this Petition. FINDINGS OF THIS COURT [11] I accept the Respondent submissions that the Petitioner lacks locus to file the Petition since the Petitioner was not a party involved in the agreement on the commercial terms for the Sub-Distribution Agreement. [12] While the Petitioner asserts in paragraphs 18 and 19 of its submission in reply contends that Suit 785 does not involve the “debt” claimed in this Petition, it fails to mention Sessions Court Suit 4316, which involves the same documents that form the basis of the alleged debt in this Petition. [13] The principles applicable to a winding-up under Section 465 1(c) and

of the CA 2016 is well settled. The Petitioner must prove on a balance of probabilities that the debt claimed in not bona fide disputed on substantial grounds. What amounts to a bona fide dispute on substantial grounds has been explained by the Court of Appeal (“COA”) in the case of Anjakan Rezeki Sdn Bhd v UI Lead Sdn Bhd

1 LNS 1601, where the court held, inter alia, as follows: “the dispute must be premised on substantial grounds and the respondent must advance a prima facie case which is sufficient to satisfy the court that there are contestable issues that requires adjudication in an action or in some other proceedings. The dispute must be on substantial not frivolous grounds.” [14] The Sessions Court in Suit 4316 found that the Respondent had successfully raised triable issues regarding the Petitioner’s claim, which was based on the same documents as in this Petition. Consequently, the Sessions Court dismissed the Petitioner’s summary judgement application. This dismissal serves as clear evidence of a bona fide dispute on substantial grounds. [15] This court is persuaded by the decision of Justice Lee Swee Seng JC (now JCA)’s pronouncement in the High Court case of Christopher Michael Cheow v ANS Builders Sdn Bhd [2012] 10 MLJ 359 [TAB 23 RBOA (2)] where the JC state as follows: “[24]…..On a conflict of affidavit evidence this court is not in a position to say which of the two versions is more plausible or probable save that it is UNSAFE to have the respondent company wound up on a disputed debt. Were it not so, the respondent companies would always be at the mercy of mercenaries whose method of bringing a respondent company to its knee would be to threaten to wind it up should it refuse to pay what is ostensibly a disputed debt, maligning its good name in the process. [25] If the Petitioner is so confident that there is no bona fide dispute on the debt, he is always free to pursue a summary judgment application in a writ action and then obtain judgment after which he would stand solidly as a creditor with the locus to present a winding up petition.” [16] In the present matter, the Petitioner did in fact file a summary judgement application in Suit 4316. The application was dismissed by the learned Sessions Court Judge. On that ground alone I find the Respondent has successfully raised a bona fide dispute on substantial grounds. [17] Therefore for the reasons aforesaid I dismiss this Petition with costs. Dated 26 February 2025 ……………t.t………………. Ahmad Murad Bin Abdul Aziz Judge High Court of Malaya Kuala Lumpur COUNSEL FOR THE PETITIONER: AHMAD SYIIMIR WITH MOHD SYAHRYSHAM SOLICITORS FOR THE PETITIONER: TETUAN AMAR SYIIMIR IZZAT & SHAM COUNSEL FOR THE RESPONDENT: HASRINA HAKIMI, ZAIDATUL IZYAN, FARAH SYAZWIN WITH MOHD YUSRI SOLICITORS FOR THE RESPONDENT: TETUAN HASRINA HAKIMI Cases Referred to: ➢ Anjakan Rezeki Sdn Bhd v UI Lead Sdn Bhd (2018) 1 LNS 1601 ➢ Christopher Michael Cheow v ANS Builders Sdn Bhd [2012] 10 MLJ 359 Legislation Referred to: ➢ Companies Act 2016 Decision date: 14 January 2025