Jki Development Sdn Bhd v 1. ) Chandra Vathan A/L Krishman (WA-24NCC-217-05/2024)

CHANDRA VATHAN A/L KRISHMAN

VERONICA A/P GUNASEKARAN (NRIC NO.: 871012-14-5594)

The Plaintiff seeks an order for a declaration that the Statutory Notice dated 29-4-2024 issued by the Defendants against the Plaintiff is an abuse of the Court’s process and that the Defendants be restrained from filing a winding-up petition against the Plaintiff. S/N b0boFyjdbk6gfFh0UfsK3Q B. Background Facts 2. It is important to note that the Sessions Court on 31-5-2023 had entered judgment against the Plaintiff in favour of the Defendants in the Civil Suit bearing number WA-B52NCVC-256-07/2022. This Judgment was affirmed by the High Court on the 11-12-2023. A stay of execution of the order of the Sessions Court was not allowed on 17-4-2024 by the High Court pending an appeal to the Court of Appeal.

The Plaintiff dissatisfied with the order of the Sessions Court and the High Court had then filed an appeal to the Court of Appeal.

The total judgment sums due and payable by the Plaintiff to the Defendants amount to RM 603, 553.39. It is important to note that the Sessions Court directed the Plaintiff to repay the purchase price of the property sold to the Defendants, costs, nominal damages and interests.

I also note that garnishee proceedings have been commenced against the Plaintiff by the Defendants. S/N b0boFyjdbk6gfFh0UfsK3Q

The Defendants contend that due to the failure of the Plaintiff to pay the sums ordered by the Sessions Court as confirmed by the High Court, the Defendants had issued a Statutory Notice dated 29-4-2024. C. Decision of this Court 7. I refer to the decision of the Court in Triterra Metropolis Sdn Bhd v Qinjian Holding Group (Malaysia) Sdn Bhd [2022] 1 LNS 966: - “To summarise the principles applicable for the grant of a Fortuna Injunction in so far as they are applicable to the present case, the following must be considered: i) Whether there is a bona fide and substantial dispute as to debt; ii) Whether the said dispute as to the debt is such that it would affect the likelihood or chances of success of the intended Winding Up Petition; iii) Whether the presentation of a Winding Up Petition would cause irreparable damage to the Plaintiff given that the debt is disputed and there is a suitable alternative procedure which could have been taken; and S/N b0boFyjdbk6gfFh0UfsK3Q iv) Whether the Plaintiff is solvent.”

I am of the opinion that the Plaintiff’s complaint solely lies on its disagreement with the decision of the Sessions Court as confirmed by the High Court. The issue of whether the said decision is correct or otherwise is not to be determined by this Court and must be respected and followed unless it is set aside or varied by the Court of Appeal. The decision of the Sessions Court was confirmed by the High Court. As such, this Court cannot consider the merits of the claim that was decided by the Sessions Court.

Therefore, it cannot be said that the Judgment debt is disputed. The Plaintiff is entitled to challenge the decision of the Sessions Court and the High Court before the Court of Appeal. This does not however entitle the Plaintiff to claim that the said Judgment sum is disputed to justify the Fortuna Injunction sought in this case. The dispute between the Plaintiff and the Defendants has been crystalized into a judgment. The Sessions Court has directed that the judgment sum be paid to the Defendants and this decision must be respected and complied with. S/N b0boFyjdbk6gfFh0UfsK3Q

In the circumstances, I find that the Plaintiff is not entitled to the orders prayed for in this case. I also find that prayers 1 to 3 as it appears in the Originating Summons is a clear backdoor attempt to have this Court review the merits of the decision of the Sessions Court. This goes beyond the powers of this Court as the merits of the said decision have been reviewed by another High Court exercising its appellate jurisdiction. Therefore, this Court finds that the said orders prayed for cannot be allowed in the circumstances of this case.

I also find that the Plaintiff has not shown to this Court that it is a solvent entity. The accounts of the company were not produced in its affidavit in support or any report to show that it is financially solvent. More importantly is that the fact that there is a judgment entered against the Plaintiff which remains unpaid indicate to me that the company is unable to pay its debts as when they arise. That entitles the Defendants to issue the said statutory notice. All the Plaintiff has to do now is either pay the said sums or contest the said statutory notice before the winding up Court.

Therefore, I find that having failed to even satisfy the first threshold justifying a Fortuna Injunction, this Court cannot grant the orders as prayed for by the Plaintiff. S/N b0boFyjdbk6gfFh0UfsK3Q

I do not believe that the Plaintiff is entitled to the declaratory orders prayed for in the circumstances of this case. As I said earlier, to do otherwise would mean that this Court will be interfering with the decision of another High Court that had disallowed the Plaintiff’s appeal against the decision of the Sessions Court.

Nonetheless, as the Plaintiff’s counsel argues that it has a good arguable case before the Court of Appeal and is able to pay the sums claimed by the Defendants, I believe that the Injunctive order sought may be granted only on the condition that the full judgment sum be paid into a joint stakeholder’s account. This sum will be retained pending the outcome of the decision of the Court of Appeal. If the said sum is not paid then the Plaintiff shall not be entitled to the Fortuna Injunction order. The said sums must be paid within 30 days of the date of the decision of this Court. S/N b0boFyjdbk6gfFh0UfsK3Q

Each party shall bear their own costs. Dated 21st May 2024 Dato’ Indera Mohd Arief Emran bin Arifin Judge High Court of Malaya Kuala Lumpur NCC 5 S/N b0boFyjdbk6gfFh0UfsK3Q Counsel Dalveena Korotana for the Plaintiff Messrs. Arnold Andrew & Co. Advocates & Solicitors M Pani for the Defendant Messrs. Pani Normala & Co. Advocates & Solicitors S/N b0boFyjdbk6gfFh0UfsK3Q