Jayatrade Manufacturing Sdn Bhd v Dato Adam Primus Varghese Bin Abdullah as Receivers & Manager of Aman Jaya Minerals (M) Sdn Bhd (WA-22NCC-819-11/2025)

AND DATO ADAM PRIMUS VARGHESE BIN ABDULLAH (NRIC: 550131-08-5849) (sued in his capacity as the former Receiver and Manager of Amman Jaya Minerals (M) Sdn Bhd) (No. 200801002407) (803691-U) (Receivers and Managers Appointed)

ALLIANZ GENERAL INSURANCE COMPANY (MALAYSIA) BHD [Company No. 200601015674 (735426-V)] … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 8 — 1st Defendant's Application to Strike Out under Order 18 rule 19 of the Rules of Court 2012) I. INTRODUCTION [1] Before this Court is Enclosure 8, the application of the 1st Defendant to strike out the Writ and the Statement of Claim filed against him pursuant to Order 18 rule 19(1) (a), (b) and (d) of the Rules of Court 2012, together with the inherent jurisdiction of this Court. [2] The Plaintiff, Jayatrade Manufacturing Sdn Bhd, is the purchaser of an industrial property comprising land, buildings, plant and machinery formerly belonging to Amman Jaya Minerals (M) Sdn Bhd ("Amman Jaya"). The 1st Defendant, Dato Adam Primus Varghese Bin Abdullah, is sued in his capacity as the former Receiver and Manager of Amman Jaya, he having been appointed by SME Bank pursuant to a debenture. The 2nd Defendant, Allianz General Insurance Company (Malaysia) Bhd, is the co-insurer of the property; the 2nd Defendant has not filed any affidavit in reply and is not directly concerned with the present application. [3] The Plaintiff's claim is for the sum of RM8,456,649.41, being the alleged value of plant, equipment and machinery said to have gone missing or been damaged at the property. The cause of action pleaded against the 1st Defendant is one of negligence and breach of a duty of care. [4] The central question for this Court is whether, upon the pleadings and the documents relied upon, the claim against the 1st Defendant personally discloses a reasonable cause of action, or whether it is plainly and obviously unsustainable such as to warrant summary disposal without the need for a trial. [5] Having considered the pleadings, the affidavits filed, the submissions of counsel, both written and oral, and the authorities cited, this Court has arrived at the conclusion that the claim against the 1st Defendant is plainly and obviously unsustainable and falls to be struck out. The reasons are set out below. II. BACKGROUND FACTS [6] The material facts are largely a matter of documentary record and are not seriously in dispute. The chronology is as follows:

On 23.5.2019, the 1st Defendant was appointed Receiver and Manager of Amman Jaya by SME Bank pursuant to a debenture. Clause 9.3 of the debenture provides that the Receiver shall be deemed to be the agent of the company.

On 1.6.2020, the 1st Defendant, acting in his capacity as Receiver and Manager, accepted the Plaintiff's offer to purchase the property on an "as is where is" basis at the purchase price of RM4,111,888.92.

On 3.6.2020, the Plaintiff inspected the property and took photographs, it being the Plaintiff's case that the equipment was then intact.

On 4.6.2020 and again on 9.6.2020, in response to the Plaintiff's enquiries on security, the 1st Defendant confirmed that the existing security arrangement (two guards by day and two by night) would be maintained at the Plaintiff's cost, afforded the Plaintiff the option of appointing additional guards at the Plaintiff's own cost, and wrote to the security company requesting an increased guard presence.

On 18.6.2020, the Sale and Purchase Agreement ("the SPA") was executed. The SPA is, on its face, a contract between the Plaintiff as purchaser and Amman Jaya as vendor, the 1st Defendant signing on behalf of the vendor in his capacity as Receiver and Manager.

On 10.12.2020, the Plaintiff paid the full balance of the purchase price.

On 14.12.2020 and 15.12.2020, on the Plaintiff's pleaded case, the Plaintiff visited the property, asserted discovery of missing items, and lodged a police report on 15.12.2020.

On 16.12.2020, vacant possession of the property was delivered to the Plaintiff.

On 5.5.2021, the 1st Defendant ceased to act as Receiver and Manager of Amman Jaya, which was subsequently wound up.

The Writ and Statement of Claim were filed on 25.11.2025. [7] This Court pauses to observe that the Plaintiff's own materials place the alleged loss at varying points in time. Taking the Plaintiff's case at its highest and adopting, as this Court does, the date of the police report as the pleaded date of discovery, the alleged loss is to be placed on 14–15.12.2020. On that date, the Plaintiff had already paid the full balance of the purchase price, but vacant possession had not yet been delivered. III. PARTIES' SUBMISSIONS A. The 1st Defendant's Submissions [8] Learned counsel for the 1st Defendant submitted, in sum, that:

The 1st Defendant acted at all material times solely as the Receiver and Manager of Amman Jaya. By Clause 9.3 of the debenture, he was deemed the agent of the company. He was not a contracting party to the SPA in any personal capacity.

Clause 16.14 of the SPA expressly excludes the personal liability of the Receiver. The clause is set out in full below.

The property was sold on an "as is where is" basis. Recital E and Clause 12.3 of the SPA, read with Clause 6.9(f) of the Information Memorandum, operate to pass all risk of loss or damage to the Plaintiff upon acceptance of the offer on 1.6.2020.

The Plaintiff was expressly afforded the option of appointing additional guards at its own cost but did not exercise that option.

The proper defendant, if any, is Amman Jaya (in liquidation) or its liquidator, not the 1st Defendant personally. No letter of demand was issued against either the company or the 1st Defendant prior to suit.

In support, the 1st Defendant relies upon Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd (on the threshold for striking out), Tee Siew Kai v Machang Indah Development Sdn Bhd (on the limited personal liability of an R&M), and Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka (on an agent contracting without personal liability). B. The Plaintiff's Submissions [9] Learned counsel for the Plaintiff submitted, in opposition, that:

Striking out is a draconian remedy to be granted only in plain and obvious cases, citing Bandar Builder.

The Plaintiff's pleaded case raises triable issues of law and of fact, in particular the 1st Defendant's alleged personal negligence in failing to provide adequate security while retaining physical control of the property. Reliance was placed upon Linde Gas Malaysia Sdn Bhd v Pasifik Utama Sdn Bhd & Anor.

Clause 16.10 of the SPA is an entire agreement clause. The SPA supersedes the Information Memorandum. The 1st Defendant is accordingly precluded from relying upon Clause 6.9(f) of the Information Memorandum on the passing of risk. Reliance was placed upon Segi Astana Sdn Bhd v Pusrawi Pharmacy & Health-Pro Sdn Bhd.

Clause 12.2 of the SPA confirms that the vendor retained right, title and interest in the property until the completion date. The 1st Defendant therefore retained physical possession, custody and control of the property until vacant possession on 16.12.2020, such control founding an independent duty of care in tort.

The 1st Defendant himself acknowledges that a Receiver and Manager may be personally liable where negligence is proved. That is precisely what the Plaintiff has pleaded.

The Plaintiff relies upon the police report dated 15.12.2020 and the 1st Defendant's letter of 9.6.2020 directing additional security. [10] This Court pauses to note one matter on the conduct of the submissions. The argument from the Bar that the Plaintiff cannot approbate and reprobate was not foreshadowed in the 1st Defendant's Affidavit in Reply. This Court has considered it with that qualification in mind; it does not form a principal ground of this Court's decision. IV. ISSUES FOR DETERMINATION [11] The issues that fall for determination are: a) Whether the threshold for striking out under Order 18 rule 19 of the Rules of Court 2012, as articulated in Bandar Builder, has been met. b) Whether, upon the pleadings and the undisputed documents, the 1st Defendant is personally liable to the Plaintiff in contract. c) Whether, upon the pleadings and the undisputed documents, the 1st Defendant owed the Plaintiff an independent duty of care in tort such as could survive the contractual regime of the SPA and the statutory agency of the Receiver. d) Whether Clause 16.10 of the SPA, the entire agreement clause, operates to neutralise the risk-allocation provisions of the SPA and the Information Memorandum in the manner contended for by the Plaintiff. e) Whether the suit against the 1st Defendant personally, in the face of the statutory and contractual regime and the existence of an alternative proper defendant, is in any event an abuse of the process of the Court. V. PRINCIPLES OF LAW A. The Striking-Out Jurisdiction [12] Order 18 rule 19(1) of the Rules of Court 2012 provides: "The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that—

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be." [13] As to the threshold, it is trite that the summary jurisdiction to strike out is to be exercised only in plain and obvious cases where the claim is, upon its face, obviously unsustainable. In Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court affirmed that the Court's power to strike out will be exercised only where the pleading discloses no reasonable cause of action and is obviously unsustainable. A pleading will not be struck out merely because the case is weak or unlikely to succeed; but where the claim is bound to fail in law upon the documents relied upon, it is not rescued by the mere formal statement of a cause of action. [14] The threshold does not require this Court to shut its eyes to the pleadings, to the documents pleaded upon, and to the legal effect of those documents. Where those materials demonstrate that the claim is in law bound to fail, it is the duty of this Court to strike it out. Otherwise, the summary jurisdiction would be reduced to a formality. B. The Personal Liability of a Receiver and Manager [15] The law on the personal liability of a Receiver and Manager is settled. An R&M appointed by a debenture holder ordinarily acts as the agent of the company. It is the company, not the Receiver, who is bound by transactions entered into on its behalf. Prima facie, the Receiver is shielded from personal liability. [16] That protection is not absolute. Personal liability may attach to a Receiver and Manager in narrowly-defined circumstances, including where he steps outside the scope of his authority, where he assumes a personal undertaking or guarantee, or where he commits actionable fraud or negligence of a character which the law recognises as giving rise to personal liability notwithstanding his office. This is the proposition for which Tee Siew Kai v Machang Indah Development Sdn Bhd stands. C. An Agent Contracting Without Personal Liability [17] Where an agent contracts on behalf of a disclosed principal and the contract expressly excludes the personal liability of the agent, the agent is not personally bound by the contract. This is the proposition for which Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka stands and, insofar as that proposition applies to a Receiver and Manager signing as agent of the vendor company, this Court adopts it. D. The Material SPA Provisions [18] Three provisions of the SPA are of central importance and must be noted at the outset: a) Recital E records that the property is sold on an "as is where is" basis. b) Clause 12.2 provides that the Vendor retains right, title and interest in the property until the completion date; Clause 12.3 provides that all risk of loss or damage shall pass to and vest in the purchaser upon acceptance of the offer. c) Clause 16.14 expressly excludes the personal liability of the Receiver and Manager under the SPA. [19] This Court notes that Clauses 12.2 and 12.3 address two different concepts. Title and risk may, and frequently do, pass at different moments in time. The SPA allocates risk on acceptance of the offer and title on completion. These provisions are not in conflict; they are complementary. VI. ANALYSIS AND FINDINGS [20] This Court begins with a note on burden. The burden on an application of this nature rests on the applicant, the 1st Defendant, to demonstrate that the claim is plainly and obviously unsustainable. The standard is a stringent one. The Plaintiff's pleaded case must be taken at its highest, and all pleaded facts assumed to be true. Only where, so taken, the claim cannot succeed in law may it be struck out. This Court has applied that standard with care throughout the analysis that follows. The substantive issues in the suit, as and when they fall to be decided, would of course be decided on the balance of probabilities as articulated in Miller v Minister of Pensions; but the present inquiry is a preliminary and legal one. Issue (a) — The Bandar Builder Threshold [21] This Court fully accepts that the threshold for striking out is a high one and that the jurisdiction is to be invoked sparingly. The Plaintiff's reliance on Bandar Builder for this proposition is accepted. This Court does not strike out merely because a case appears weak or unpromising. This Court strikes out where, assuming every pleaded fact to be true and taking the Plaintiff's case at its highest, the claim cannot in law succeed against the 1st Defendant personally. The present is such a case, for the reasons that follow. Issue (b) — No Contractual Liability in Personal Capacity [22] The SPA is the governing instrument. On its face, the SPA is a contract between the Plaintiff as purchaser and Amman Jaya as vendor. The 1st Defendant is not a contracting party in any personal capacity. He signed the SPA as the Receiver and Manager of Amman Jaya, acting on behalf of the vendor company and within the authority conferred by the debenture. [23] Clause 16.14 of the SPA, as noted above, expressly excludes the personal liability of the Receiver under the agreement. The clause is clear and unambiguous. It mirrors and reinforces the common-law position affirmed in Tee Siew Kai and Pernas Trading. [24] The Plaintiff has pleaded no fact which, if proved, would take the 1st Defendant outside the scope of his agency or outside the protection of Clause 16.14. There is no pleaded personal undertaking. There is no pleaded personal guarantee. There is no pleaded fraud. What there is, is the bare assertion that the 1st Defendant retained "physical control" of the property between offer acceptance and vacant possession. That assertion is addressed under Issue (c). It does not, however, convert him into a contracting party to the SPA in his personal capacity. [25] In contract, therefore, the claim against the 1st Defendant is on its face unsustainable. Issue (c) — No Independent Tortious Duty of Care [26] The substance of the Plaintiff's case is pleaded in tort. The Plaintiff submits that the 1st Defendant, by reason of his physical custody of the property between 1.6.2020 and

16.12.2020, owed the Plaintiff an independent duty of care which is untouched by the contractual regime of the SPA and which survives his agency for Amman Jaya. That contention is the fulcrum of the Plaintiff's opposition to the present application. This Court has given it careful consideration. For the reasons below, the contention must be rejected. [27] First, the 1st Defendant's physical handling of the property was not in a personal capacity. It was in his capacity as Receiver and Manager of Amman Jaya. The property belonged to Amman Jaya. Any custodial obligation in respect of the property was an obligation of Amman Jaya, discharged through the 1st Defendant as its agent under Clause 9.3 of the debenture. An obligation arising from the agent's management of the principal's property is the principal's obligation, not the agent's personal one. To hold otherwise would be to invert the settled law of agency and the express terms of the debenture. [28] Secondly, the carve-out in Tee Siew Kai for "actionable negligence" does not operate upon the mere fact of physical control. It operates where the Receiver has done something, or omitted to do something, which the law recognises as giving rise to personal liability independent of his office. The pleaded acts and omissions of the 1st Defendant — engaging security guards, corresponding with the security company, delivering vacant possession at the appointed time — are all acts within the scope and in the course of his duties as Receiver and Manager. None is capable, even when the Plaintiff's case is taken at its highest, of founding personal liability in tort. [29] Thirdly, the Plaintiff's contention that physical control alone creates a personal tortious duty proves too much. Carried to its logical end, it would mean that every Receiver and Manager of every vendor company in every sale of company property would attract personal liability for every loss or damage occurring on the premises prior to completion, regardless of the terms of the sale contract and regardless of the statutory agency under the debenture. That is not the law and cannot be the law. The law is as stated in Tee Siew Kai: personal liability attaches only on the well-recognised carve-outs, and the routine discharge of custodial functions as agent of the vendor company is not one of them. [30] Fourthly, the pleaded facts are, in any event, inconsistent with the imposition of any duty of the character contended for. The 1st Defendant did not retain custody of the property gratuitously or in his personal interest. He retained it in the discharge of his duties as R&M. When the Plaintiff raised concerns on security, the 1st Defendant confirmed that the existing guards would be maintained, afforded the Plaintiff the express option of engaging additional guards at the Plaintiff's own cost, and himself wrote to the security company on 9.6.2020 requesting an increased guard presence. The Plaintiff did not exercise the option afforded to it. Far from demonstrating a breach of any duty, those pleaded facts demonstrate the 1st Defendant discharging the functions of his office with reasonable care. The Plaintiff's reliance on the letter of 9.6.2020 as evidence of a voluntary assumption of personal responsibility is, with respect, misconceived. The letter is an act of the Receiver in the course of his office, not an assumption of personal liability. Agents do not, by acting within their agency, thereby become personally liable for the subject-matter of their agency. [31] Fifthly, the SPA itself allocates the risk of loss or damage to the Plaintiff. Recital E records the "as is where is" basis of the sale. Clause 12.3 passes risk on acceptance of offer. The Plaintiff submits that Clause 12.2 (passing of title on completion) contradicts Clause 12.3. This Court has addressed that submission at paragraph 19 above. Title and risk are separate concepts. They pass at different moments, and the SPA provides expressly for each. The risk, on the plain terms of the SPA, lay upon the Plaintiff from 1.6.2020 onwards. It is not open to the Plaintiff to recast what is substantively a loss-allocation grievance as an independent tortious claim against the Receiver personally. [32] In tort, therefore, the claim against the 1st Defendant is also on its face unsustainable. Issue (d) — The Entire Agreement Clause [33] The Plaintiff, relying on Segi Astana Sdn Bhd v Pusrawi Pharmacy & Health-Pro Sdn Bhd, submits that Clause 16.10 of the SPA supersedes the Information Memorandum, and that the 1st Defendant cannot therefore rely upon Clause 6.9(f) of the Information Memorandum on risk passing. This Court accepts, as a matter of general principle that an entire agreement clause operates to exclude reliance on prior representations and agreements in the construction of the concluded contract. That much is uncontroversial and this Court does not depart from Segi Astana. [34] However, the submission does not advance the Plaintiff's case, for two reasons. [35] First, the 1st Defendant's defence to the present application does not depend on the Information Memorandum. The SPA itself, upon its own terms — Recital E, Clause 12.3, and Clause 16.14 — is sufficient to exclude personal liability and to allocate risk to the Plaintiff. The Information Memorandum is corroborative and contextual only; it is not the foundation of the defence. [36] Secondly, even were the Information Memorandum set aside entirely and treated as if it had never existed, the SPA's own structure remains fatal to the claim against the 1st Defendant personally. The SPA is between the Plaintiff and Amman Jaya. The SPA contains its own risk clause. The SPA contains its own exclusion of Receiver's personal liability. The Segi Astana point therefore bears no fruit, because there is nothing in the Information Memorandum which, if excluded, rescues the pleaded claim against the 1st Defendant. Issue (d) (ii) — Linde Gas Distinguished [37] The Plaintiff further relies upon Linde Gas Malaysia Sdn Bhd v Pasifik Utama Sdn Bhd & Anor for the proposition that where issues of law and fact arise, they should be determined at trial and not on a striking-out application. This Court respectfully accepts the general proposition. [38] The proposition does not, however, assist the Plaintiff on the present facts. Linde Gas presupposes the existence of a bona fide triable issue. The present case does not present such an issue. It presents, instead, a claim that upon the very documents the Plaintiff itself relies upon, is bound to fail in law. No amount of oral evidence at trial can alter the legal effect of the SPA, the debenture, or the pleaded facts. Linde Gas does not transmute a legally unsustainable claim into a triable one, nor does it require this Court to send to trial a matter which must fail. Issue (e) — The Proper Defendant and Abuse of Process [39] On the materials before this Court, the proper defendant in respect of any claim arising out of the SPA or any custodial obligation owed by the vendor is Amman Jaya (in liquidation) or its liquidator. The Plaintiff has not pursued Amman Jaya. The Plaintiff has not pursued the liquidator. No letter of demand was issued to either the Receiver or the company prior to the institution of the suit. [40] This Court is alive to the seriousness of a finding of abuse of process and does not make such a finding lightly. It is not strictly necessary to decide Enclosure 8 on the (d) limb of Order 18 rule 19, the claim having already been found plainly unsustainable under limb (a). This Court nonetheless records that the targeting of the former Receiver personally, in the face of express contractual exclusions, the statutory agency under the debenture, and the existence of an available alternative defendant, reinforces the conclusion that this is not a claim that ought to occupy the trial list of this Court.

— Obiter Observation [41] By way of observation only and not forming part of this Court's ratio: this Court notes the following further difficulties in the Plaintiff's case, none of which this Court decides but each of which reinforces the conclusion already reached. The Plaintiff paid the full balance of the purchase price on 10.12.2020 and took delivery of vacant possession on 16.12.2020, notwithstanding its asserted discovery of missing items on 14–

15.12.2020, without formal protest or reservation of rights. The 2nd Defendant's insurance assessment is said to have concluded that the machinery had been non-operational and unattended for a period of some eleven years prior to the sale, a conclusion which the Plaintiff has not directly rebutted on affidavit. No letter of demand preceded the Writ. Taken together, these matters suggest that even were the claim permitted to proceed to trial, its prospects would not be strong. These observations are made for completeness and do not form part of the ratio; the ratio is confined to the legal unsustainability of the pleaded claim against the 1st Defendant personally, for the reasons set out at paragraphs 22 to 38 above. VII. CONCLUSION AND ORDERS [42] For the reasons set out above, this Court finds that the Statement of Claim against the 1st Defendant discloses no reasonable cause of action and is plainly and obviously unsustainable within the meaning of Order 18 rule 19(1) (a) of the Rules of Court 2012. In the circumstances, it is strictly not necessary to determine the grounds under Order 18 rule 19(1)

and (d), though this Court observes that the pleaded case would not, in any event, survive scrutiny on those limbs for the reasons set out at paragraphs 39 and 40 above. [43] Accordingly, this Court makes the following orders:

Enclosure 8 is allowed.

The Writ and Statement of Claim as against the 1st Defendant are struck out.

The Plaintiff shall pay the 1st Defendant costs in the sum of RM10,000, subject to allocatur. The sum is fixed having regard to the nature and length of the application, the volume of the materials, and the submissions; this Court is not persuaded that the case is one warranting costs on the indemnity basis.

For the avoidance of doubt, this order does not affect the Plaintiff's claim as against the 2nd Defendant, which shall proceed in the ordinary course. VIII. APPRECIATION [44] This Court records its appreciation to counsel on both sides for their careful and helpful submissions, both written and oral. Dated 19hb May 2026 (MOHAMAD REDZUAN BIN IDRUS) JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT NCC 5 WILAYAH PERSEKUTUAN KUALA LUMPUR APPEARANCES For the Plaintiff: Kandasivam Sivakolunthu (Lawrence Hisham & Co. (Kuala Lumpur)) For the 1st Defendant: Saritha Devi A/P Kirupalani & Katrina Ellen A/P Rameshvaran (Firoz Julian (Kuala Lumpur)) For the 2nd Defendant: Lau Zhi Ying & Kimberly Yap Mei Chyi (Othman Hashim & Co. Kuala Lumpur)) CASES REFERRED TO:

Bandar Builder Sdn Bhd & Ors v United Malayan Banking

Tee Siew Kai (sebagai pelikudasi bagi Merger Acceptance Sdn Bhd) (dalam likudasi) v Machang Indah Development Sdn Bhd (dahulu dikenali sebagai Rakyat Corp Sdn Bhd [2018] MLJU

Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 4. Linde Gas Malaysia Sdn Bhd v Pasifik Utama Sdn Bhd & Anor [2011] 5 CLJ 40 5. Segi Astana Sdn Bhd v Pusrawi Pharmacy & Health-Pro Sdn Bhd 6. Miller v Minister of Pensions [1947] 2 All ER 372

Rules of Court 2012 — Order 18 rule 19 2.