The fact that the Financial Statements make it clear that the purported amount advanced by the Defendant (Ganesan) to the Plaintiff is “unsecured, interest-free, and not subject to fixed terms of repayment”. As there is no fixed term of repayment, any repayment of such an advance must necessarily require the consent and agreement of the shareholders of the Plaintiff as he is not an ordinary creditor of the company. [19] In applying the trite principles laid out in Mobikom (supra), the learned counsel for the Plaintiff submits that the OS ought to be allowed as the Defendant (Ganesan) has clearly chosen to assert a substantially dispute debt against the Plaintiff by threatening to present a winding up petition. In this regard, the winding-up court is not the correct avenue for a party to assert a disputed claim. The learned counsel for the Plaintiff been guided with the High Court decision of Chong Chee Yan v Golden Dragon Garden Sdn Bhd [1999] 1 MLJ 573 at page 587. [20] The learned counsel for the Plaintiff had taught the Defendant (Ganesan) that the Defendant (Ganesan) instead ought to resort to an alternative procedure or course of action (i.e. the filing of a civil suit) to assert his claim (see the High Court decision of Ecofitz Hartz Sdn Bhd v. Poon Mun Cheong & Anor [2018] 1 LNS 947, High Court per Mohd Nazlan J at pages 32 – 34. [21] The learned counsel for the Plaintiff submits that this Court must consider the totality of the circumstances and, in particular, the underlying factual background of the case when determining a Fortuna Injunction Application and clearly the the Notice of Demand was issued by the Defendant (Ganesan) for a collateral purpose of exerting undue pressure on the Plaintiff and its shareholders. And also, that the Notice of Demand was issued by the Defendant (Ganesan) in response to or in retaliation to Suit 130 and is designed to exert pressure on the Plaintiff and its shareholders. Furthermore, the Plaintiff contends that the Alleged Debt is closely connected with the underlying dispute between the shareholders in Suit 130. [22] The learned counsel for the Plaintiff submits that this Court should also note that, at all material times, the Defendant (Ganesan) is not an ordinary creditor of the company. Instead, this is clearly a case where the director and shareholder of a company is threatening to wind-up the company whilst the shareholders of the company are in the middle of a dispute (i.e. vide Suit 130). [23] Pertaining to the issue whether the Plaintiff is Insolvent ir not, the learned counsel for the Plaintiff submits that despite the fact that the Plaintiff suffered losses in Financial Year 2022, the Plaintiff remains a commercially solvent company as it is able to meet its debts and obligations as and when they are due In fact, the Defendant (Ganesan) and his management team projected that the company would begin turning a profit in 2024. [24] Apart from the Defendant (Ganesan)’s Notice of Demand which is bona fide disputed, the learned counsel for the Plaintiff submits that the Defendant (Ganesan) is not able to show this Court that there are other financial obligations which the Plaintiff has failed to meet and thereby rendering it commercially insolvent. [25] Premised on the above, the learned counsel for the Plaintiff submits that as a company which is commercially solvent, it has the right to protect itself from winding-up petitions not bona fide and frivolous. The Plaintiff should not have to face such winding-up petitions and suffer more harm than necessary particularly when there are other available and more appropriate avenues for the Defendant (Ganesan) to assert his claim. (See: RHB Bank Berhad v. Gunasingam Ramasingam [2002] 5 CLJ 544) [26] Pertaining to the issue whether the Plaintiff would suffer irreparable damage, the learned counsel for the Plaintiff submits that it is trite that the presentation of a winding-up petition can cause irreparable damage onto a company’s reputation and business. Here, in the Plaintiff’s situation, the Plaintiff’s business and relationship with its suppliers, bank facilities and customers would certainly affect adversely by the presentation of a winding-up petition which is not bona fide. As such, it would be unjustified to subject the Plaintiff to the risk of such harm arising from a winding-up petition based on the Alleged Debt. [27] The learned counsel for the Plaintiff had compared and balanced between the Plaintiff and the Defendant, and based on the fact the balance of convenience lies in favour of the Plaintiff. [28] The learned counsel for the Plaintiff contends that the Defendant (Ganesan) suffers no prejudice in the event that this Fortuna Injunction Application is allowed as the Defendant (Ganesan) still has the alternative means to ventilate and assert his claim through a civil action against the Plaintiff. On the other hand, the damages and/or loss which might be suffered by the Plaintiff from the presentation of a winding-up petition would be far greater. Hence, this Court should allow the Fortuna Injunction Application in order to (i) maintain the status quo of the parties pending the disposal of the bona fide disputes between the parties in relation to the Alleged Debt; and (ii) relieve and/or protect the Plaintiff from oppression and damage caused by the presentation of a winding-up petition premised on a bona fide disputed debt. [29] In conclusion, the learned counsel for the Plaintiff submits that the intended winding-up petition should therefore be restrained by this Court. The Defendant’s submission [30] The learned counsel for the Defendant submits that since all persons are treated equally before the law, the fact that the Defendant is a director and shareholder of the Plaintiff is irrelevant. The Plaintiff is indisputably indebted to the Defendant in the sum of RM16,976,428.00. [31] The debt demanded by the Defendant is as early as 7.8.2023 the Defendant’s solicitor issued a letter to the solicitors of NJSB (Messrs Wong Lu Peen & Tunku Alina) the 51% shareholder of the Plaintiff demanding the payment of the sum RM16,976,428 by 21.8.2023. [32] NJSB is wholly owned by Salcon Berhad. Thus, the statutory demand for RM16,976,428.00 is not a retaliation by the Defendant to the Shah Alam Suit 130 as sought to be portrayed by the Plaintiff. It was also not sent to achieve a “collateral purpose” or to exert “undue pressure”. The sum of RM 16,976,428 is a debt simpliciter. Hence, the Defendant ought to be permitted to present the petition to wind up the Plaintiff. In the premises, the Defendant respectfully prays that enclosures 1 and 2 be dismissed with costs on an indemnity basis. Evaluation and Findings [33] This Court as early as the hearing of the application of the OS and CoU filed by the Plaintiff, has allowed an interim injunction to (i) maintain the status quo of the parties pending the disposal of the bona fide disputes between the parties in relation to the Alleged Debt; and (ii) relieve and/or protect the Plaintiff from oppression and damage caused by the presentation of a winding-up petition premised on a bona fide disputed debt. [33] The article title “The Fortuna Injunction” by Justice Wan Muhammad Amin bin Wan Yahya, Kuala Lumpur High Court in Journal of the Malaysian Judiciary, July 2023 at page 48 – 73, is refer to as follows: “[1] The Fortuna injunction is essentially a prohibitory injunction which is designed to restrain the presentation of a winding-up petition and with it, the prevention of abuse of the process of court. … [4] Upon receiving the threat of a winding-up petition being presented commonly via a statutory notice under section 466 of the Companies Act 2016 (“statutory notice”) the applicant will hasten to court to move the court usually on a certificate of urgency for an interim or interlocutory Fortuna injunction.”. [34] With that, this Court after reading the OS has allowed the Plaintiff application for interim Fortuna injunction. [35] The Defendant’s affidavit has showed that he is demanding a non-judgment debt from the Plaintiff. The relevant documents were filed in the Defendant’s affidavit in reply. [36] The Plaintiff in refusal to pay the Defendant’s debt has filed this OS asking for Fortuna injunction. The reasons listed already been reproduced in length. [37] As the Plaintiff states that the Alleged Debt is not bona fide and that the sum is not due and owing, this Court must not forget the principles as in the case of Tan Kok Tong (supra) that the debt must not only be bona fide disputed but disputed on substantial grounds. [38] The duty of the Court is to determine based on the documents and averments in the affidavits whether there is a bona fide disputed debt and more so whether it can be said that the intended winding-up petition has little or no chance of success. [39] In paragraph 38, the article title “The Fortuna Injunction” by Justice Wan Muhammad Amin bin Wan Yahya (supra) states – “[38] … The High Court also disapproved the “short-cut” taken by the creditor to seek to wind up the company instead of proceeding by way of a civil action and held as follows: Should this court rule that, to secure an injunction against the filing of a winding-up petition, the onus is on the company sought to be wound-up to satisfy that the creditor’s claim is “bound to fail”, most lotigants who claim to be creditors would take the short-cut petition for winding-up route to enforce their claims rather than to have recourse to the common law courts. Indeed, such heavy onus of proof if placed on the company would result in the companies’ court being inundated with a welter of winding-up petitions, which may lead to irretrievable damage to a company’s business and reputation, and far-reaching effects consequential upon the ensuing mandatory gazettal and advertisement entailed in a petition. The courts must firmly deprecate such proclivity for short-cuts in normal recovery of debts. …”. [40] This Court disagrees with the Plaintiff’s contentions that the Defendant is taking a “short-cut” by issuing the notice of demand for winding-up the Plaintiff. The documents attached in the Defendant’s affidavits are −