Jr Joint Resources Holdings Sdn. Bhd. v 1. Technochase Sdn. Bhd. (JA-22NCVC-25-02/2016)

TECHNOCHASE SDN BHD

MD SALLEH BIN BADRI

MOHD ZAINI BIN MD LAJIS (NO. K/P: 740101-01-6335) `````````````````````````````````````````````````````` Page 2 of 29 GUAMAN NO. JA-22NCVC-26-02/2016 Antara AMINUL ISLAM BIN ABDUL NOR (No. K/P: 670508-79-5039)

TECHNOCHASE SDN BHD

GOOI YU HOH (NO K/P: 720702-04-5103) `````````````````````````````````````````````````````` Page 3 of 29 GUAMAN NO. JA-22NCVC-27-02/2016 Antara JR JOINT RESOURCES HOLDINGS SDN BHD

JALALUDIN BIN SULAIMAN

GOOI YU HOH

NORASIAH BINTI SULAIMAN (NO K/P: 760324-01-7012) ``````````````````````````````````````````````````````` JUDGMENT CHOO KAH SING Judge High Court Johor Bahru Date: 11.11.2018 Page 4 of 29 Introduction [1] This judgment serves as the reasons for the decisions for 3 suits which were jointly heard. For ease of reference, the 3 suits will be referred to in this judgment respectively as shown in Table A below: Case Number: Reference: JA-22NCVC-25-02/2016 Suit 25 JA-22NCVC-26-02/2016 Suit 26 JA-22NCVC-27-02/2016 Suit 27 Table A [2] The parties’ counsels in all 3 suits had agreed that the 3 suits be heard together because they involved some common parties, facts and evidence of similar nature, except those specifically mentioned and referred to in the parties’ pleadings respectively. Parties’ Counsels [3] Table B below depicts the parties’ counsels respectively for all 3 suits. Suit No. Plaintiff’s counsel 1st Defendant’s counsel 2nd Defendant’s counsel 3rd Defendant’s counsel 25 Sukhdev Kaur Hanif Hassan Hanif Hassan Hanif Hassan 26 Sukhdev Kaur Hanif Hassan 27 Sukhdev Kaur Hanif Hassan Table B Page 5 of 29 [4] The parties have gone through a full trial. On 21.8.2018, this Court, in broad terms, made the following orders in the 3 suits:

The plaintiffs’ claims in all 3 suits be dismissed with costs.

(ii) The 2nd defendant’s counterclaim in Suit 26 be dismissed without costs.

(iii) This Court ordered that the 1st defendant in Suit 25 refund a sum of RM4,100,658.00 to the plaintiff in Suit 25. (Note: For item (iii), the sum to be refunded to the plaintiff is in respect of all 3 suits. There was a calculation error in respect of the said sum which will be explained in the later part of the judgment). [5] The reasons for the decisions of this Court for all 3 suits are set out as below. The Background Facts Introduction to the Respective Parties [6] The plaintiffs in Suits 25 and 27 are the same party, i.e. JR Joint Resources Holdings Sdn. Bhd. (hereinafter ‘JR Joint Resources’). [7] The plaintiff in Suit 26 is Aminul Islam Bin Abdul Nor (hereinafter ‘Aminul Islam’) who is the President and Chief Executive Officer (CEO) of JR Joint Resources. The Table C below depicts the plaintiffs in the 3 suits. Page 6 of 29 Suit No Plaintiff 25 JR Joint Resources 26 Aminul Islam 27 JR Joint Resources Table C [8] The 1st defendant in both Suits 25 and 26 is the same party, i.e. Technochase Sdn. Bhd. (hereinafter ‘Technochase’); whereas, the 1st defendant Jalaludin Bin Sulaiman (hereinafter ‘Jalaludin’) in Suit 27 is the majority shareholder and managing director of Technochase. The Table D below depicts the main defendants in the 3 suits. Suit No 1st Defendant 25 Technochase 26 Technochase 27 Jalaludin Table D The Background Facts that Led to the 3 Suits [9] On the surface, the facts seem to be convoluted. However, upon examination, the salient facts of the 3 suits could be condensed and explained as below. [10] Aminul Islam and Jalaludin were friends. Upon a request made by Jalaludin to Aminul Islam, Aminul Islam had advanced a personal loan to Jalaludin. Page 7 of 29 [11] Jalaludin was unable to pay back Aminul Islam. Jalaludin then made an offer to Aminul Islam to pay back the personal loan by way of set-off of his personal properties and his company Technocase’s properties. Aminul Islam was reluctant to accept the offer initially, but later agreed to it. [12] The total value of all the set-off properties was higher than the personal loan sum. As such, Aminul Islam and/or JR Joint Resources had to top-up the difference. [13] Aminul Islam and Jalaludin then entered into a series of sale and purchase agreements for the transfer of Jalaludin’s and Technochase’s properties. [14] Aminul Islam had used his company JR Joint Resources as purchaser for the properties in Suits 25 and 27; whereas Aminul Islam was named as the purchaser for the properties in Suit 26. [15] In the midst of the sale and purchase transactions, a dispute arose between Aminul Islam and Jalaludin. On one hand, Aminul Islam and his company JR Joint Resources contended that they had paid in full the purchase prices for the purchase of all the properties to Jalaludin and/or Technochase. On the other hand, Jalaludin and/or Technochase denied that Aminul Islam and/or JR Joint Resources had fully settled the purchase prices of all the properties. [16] Jalaludin and Technochase averred that Aminul Islam and/or JR Joint Resources had failed to pay in full the purchase prices of the Page 8 of 29 properties, as such, they had terminated the sale and purchase agreements, and they were free to sell the said properties to 3rd parties. [17] Technocase had then sold two of its properties; one to the 2nd defendant, and another one to the 3rd defendant in Suit 25. Technochase also had sold one of its properties to Mr. Gooi Yu Hoh (hereinafter ‘Mr. Gooi’) in Suit 26. With regard to Jalaludin, he had sold one of his properties to Mr. Gooi in Suit 27. [18] Based on the above disputes, Aminul Islam and JR Joint Resources brought the 3 suits against Jalaludin personally and against Jalaludin’s company Technochase, and also against the 2nd and 3rd defendants in Suit 25 and Mr. Gooi in Suits 26 and 27. [19] The 2nd and 3rd defendants in Suit 25 and Mr. Gooi in Suits 26 and 27 had contended that they were bona fide purchasers for value of the properties which they had purchased from Jalaludin and/or Technochase respectively, and they had no knowledge of the earlier sale and purchase agreements entered into between the Aminul Islam and/or JR Joint Resources and Jalaludin and/or Technochase. [20] Aminul Islam and/or JR Joint Resources claimed for specific performance against Jalaludin and/or Technochase to transfer the properties to them or in the alternative Jalaludin and/or Technochase to pay damages in lieu of specific performance. [21] With regard to the 3rd defendant, Norasiah Binti Sulaiman, in Suit 27, the plaintiff had abandoned its claim against her. Page 9 of 29 [22] In gist, the above are the broad facts of the 3 suits. [23] For ease of reference, the parties will hereinafter be referred to as follows: i. Aminul Islam and JR Joint Resources will collectively be referred to as ‘the Plaintiffs’; ii. Jalaludin and Technochase will collectively be referred to as ‘the Defendants’; iii. The 2nd and 3rd defendants in Suit 25 and Mr. Gooi as the 2nd defendant in both Suits 26 and 27 will collectively be referred to as ‘the 3rd parties’. Peculiar Facts in the 3 Suits [24] It is pertinent to note that there are two peculiar facts in all 3 suits. [25] The first peculiar fact is that in so far as the Plaintiffs’ cases (Suits 25, 26 and 27) are concerned, JR Joint Resources and Aminul Islam were treated as if they were a single entity. This is because the Plaintiffs pleaded that they, without specifying who paid for what, had paid a total sum of RM9,567,525.92 (hereinafter ‘the total paid sum’ which is based on the payment vouchers adduced in court, except exhibits P8 and P13; see para [84] below) to the Defendants for the purchase of the Defendants’ properties in all 3 suits. Page 10 of 29 [26] The Plaintiffs had adduced a total of 37 payment vouchers (see Exhibits P1 to P40, except Exhibits P8 and P13, and P39) evidencing the payments of the total paid sum. It is to be noted that the Plaintiffs had relied on the same Exhibits, i.e. the payment vouchers, in all the 3 suits to prove their cases. [27] The Plaintiffs could not specify which payments were for which particular properties and for which particular suit. It is because of this peculiar fact that the plaintiffs wanted all 3 suits be heard together. [28] The second peculiar fact is that the Defendants also treated themselves as if they were a single entity. Although they had argued Technochase was a separate legal entity and Jalaludin was an individual; the manner in which the Defendants had defended their cases were as if they were one. The Findings of This Court Suit 25 [29] In Suit 25, JR Joint Resources, the plaintiff, averred that it had entered into a sale and purchase agreement dated 31.7.2009 (hereinafter ‘SPA – Suit 25’) with Technochase for the purchase of 7 properties for a total sum of RM420,000.00. Each property was valued at RM60,000.00. [30] JR Joint Resources asserted that it had paid in full the total purchase price of RM420,000.00 to Technochase. However, it is observed that JR Joint Resources was not sure when it actually settled Page 11 of 29 fully the total purchase price. JR Joint Resources merely claimed that it had settled the full purchase price before the expiry of 3 months from the date of the sale and purchase agreement in October 2009. [31] The 7 properties were not transferred to JR Joint Resources, although JR Joint Resources claimed that it had settled the full purchase price since October 2009. [32] About 6 years later, on 24.8.2015 Technochase sold one of the 7 properties to MD Salleh Bin Badri (DW2 / 2nd defendant), and the said property was registered in the name of DW2 on 22.9.2015. [33] On 28.8.2015, Technochase also sold another property out of the 7 properties to one Mohd Zaini Bin MD Lajis (DW3 / 3rd defendant), and the said property was registered in the name of the DW3 on 5.11.2015. [34] Technochase contended that the actual sale price of the 7 properties was RM1,260,000.00, instead of RM420,000.00 as claimed by JR Joint Resources. Each property was valued at RM180,000.00, instead of RM60,000.00. [35] On one hand, JR Joint Resources adduced a set of SPA dated 31.7.2009 (P50) evidencing the sale and purchase price of the 7 properties was RM420,000.00. On the other hand, Technochase adduced a set of SPA which is the same as P50, but the page (schedule page) reflecting the sale price was different, and it stated the sale price for the 7 properties was RM1,260,000.00. Page 12 of 29 [36] JR Joint Resources’s representative Aminul Islam (PW1) admitted that he had signed / initialled on all the pages of P50, including the page reflecting the sale price of the 7 properties as RM1,260,000.00. [37] There were two sets of facts before this Court. One revealed the sale price for the 7 properties was RM420,000.00, and the other set of facts revealed the sale price was RM1,260,000.00. Hence, the issue for this Court to determine, as agreed by the parties, is which agreement, i.e. the agreement with the price of RM420,000.00 or RM1,260,000.00 is valid and enforceable. [38] The burden lies with the plaintiff to prove its case since it was the plaintiff who had brought the suit. According to Aminul Islam, he said that initially the parties agreed that the sale price for the 7 properties was RM1,260,000.00. As such, he had initialled on the page reflecting the sale price of the 7 properties as RM1,260,000.00. [39] Aminul Islam explained that Jalaludin then approached him and told him that Technochase would not want to pay so much Real Property Gain Tax (RPGT) for the sale of the 7 properties. As such, he agreed that the sale price for the 7 properties to be valued at RM420,000.00, that is, RM60,000.00 each. It was on that understanding the sale price was changed from RM1,260,000.00 to RM420,000.00. It was on this basis that JR Joint Resources contended that the first sale price of RM1,260,000.00 was no longer applicable, and the actual sale price became RM420,000.00. [40] Technochase’s version was that Aminul Islam requested the sale price to be stated as RM420,000.00 in the sale and purchase Page 13 of 29 agreement, instead of RM1,260,000.00. The reason was that JR Joint Resources, as the purchaser, would not want to pay so much chargeable stamp duty for the transfer of the said 7 properties. On that basis, Jalaludin had instructed his staff Nor Aishah Binti Osman (DW4) to exchange the relevant page in the sale and purchase agreement to reflect the sale price for the 7 properties as RM420,000.00, and used the same document to submit for valuation of stamp duty at the Lembaga Hasil Dalam Negeri (LHDN). [41] This Court is inclined to reject JR Joint Resources’ version of the story. First, it is not logical that JR Joint Resources in order for Technochase to avoid paying RPGT, Technochase would willing to agree to lower the selling price of its 7 properties from RM1,260,000.00 to RM420,000.00. [42] If JR Joint Resources’ story was true, it means Technochase agreed to forgo a sum of RM840,000.00 to avoid paying RPGT of the 7 properties (RM1,260,000.00 – RM420,000.00 = RM840,000.00). [43] If based on maximum 30% chargeable real property gain tax for the sum of RM1,260,000.00 being imposed on Technochase (as a company), it would amount to RM378,000.00 (RM1,260,000.00 x 30% = RM378,000.00). This calculation is based on an assumption Technochase acquired the 7 properties for free (i.e. 100% gain) and disposed them within 3 years from the date it acquired the said 7 properties. [44] In such a scenario, the chargeable RPGT of RM378,000.00 (on maximum scale) is still less than the purported sum of RM840,000.00 Page 14 of 29 that it allegedly forgo. No reasonable vendor would agree to sell his property at a substantially low price just to avoid RPGT if the amount discounted is more than the taxable amount. [45] Secondly, in the event JR Joint Resources through Aminul Islam agreed to a purchase price of RM1,260,000.00, and acted on Jalaludin’s request to avoid paying higher RPGT, by stating a purchase price of RM420,000.00 in the sale and purchase agreement so as to help Technochase to avoid paying a higher RPGT, this would mean that the actual intended selling price was RM1,260,000.00. On a balance of probabilities, Technochase’s version of the story was more probable than JR Joint Resources’ story – the parties stated a lower purchase price was because it would attract a lower chargeable stamp duty. [46] Thirdly, JR Joint Resources asserted that it had paid in full the purchase price (whether it was RM420,000.00 or RM1,260,000.00) in October 2009, but did not give a reasonable explanation why JR Joint Resources did not take action against Technochase from 2009 until

Why JR Joint Resources wait until February 2016 to bring this action against Technochase? JR Joint Resources through Aminul Islam informed the Court that he had left everything to Jalaludin to handle. The reason given by Aminul Islam was not convincing and reasonable. No reasonable purchaser would take so long to enforce its right after a lapse of more than 6 years. [47] Lastly, there was no cogent evidence that JR Joint Resources had paid in full the purchase price (whether RM420,000.00 or RM1,260,000.00) because all the payment vouchers (see Exhibits P1 to P40, except Exhibits P8 and P13) adduced by JR Joint Resources do Page 15 of 29 not prove the payments were in fact for the purchase of the 7 properties, the payments could be for other properties. [48] Based on the above, this Court is of the considered view that it would be more probable than not that the sale and purchase price of the 7 properties was for a sum of RM1,260,000.00. This Court is also of the considered view that JR Joint Resources (as the plaintiff in Suit 25) could not prove that it had paid in full the purchase price. This is because JR Joint Resources failed to convince this Court its payment vouchers reflected the payments of the purchase price for the 7 properties. This Court finds that JR Joint Resources had failed to prove its case in Suit 25 on a balance of probabilities. [49] Consequent to the above findings, JR Joint Resources’ claims against the 2nd and 3rd defendants must fail. Hence, it was unnecessary to decide the issue whether they were bona fide purchasers or not. Suit 26 [50] Suit 26 concerns two sale and purchase agreements which were entered into between Aminul Islam, as purchaser, and Techonochase, as the vendor. [51] The first sale and purchase agreement dated 31.7.2009 (hereinafter ‘the first SPA - Exhibit P51) was for two properties, namely, GM 1375 Lot 3491 and GM 711, Lot 3492, both at Mukim Plentong, Daerah Johor Bahru, Negeri Johor. Page 16 of 29 [52] The second sale and purchase agreement was also dated 31.07.2009 (hereinafter ‘the second SPA - Exhibit P52), and it was for a property known as HSD 12284, Lot 2894, Mukim Api-Api, Derah Pontian, Negeri Johor [53] Aminul Islam’s version of the story was that the sale and purchase price for two properties in the first SPA was RM3,500,000.00, and as for the property in the second SPA, the sale and purchase price was RM1,800,000.00. [54] Aminul Islam contended that he had paid in full the purchase prices in the two sale and purchase agreements (the first SPA and second SPA), and that Technochase failed to transfer the three properties to Aminul Islam. [55] Technochase’s version of the story was that the actual sale and purchase price of the first SPA was RM7,000,000.00, and it was not RM3,500,00.00 as contended by Aminul Islam. Technochase’s version of the first SPA was adduced and marked as Exhibit D53. [56] As for the second SPA, Technochase admitted that the sale and purchase price for the property was indeed RM1,800,000.00. [57] Technochase contented that for the first SPA, Aminul Islam had failed to pay in full the balance purchase price (based on RM7,000,000.00) upon the expiry of the completion date and/or the extended completion date. Hence, the first SPA was terminated. Page 17 of 29 [58] With regard to the second SPA, Technochase took the position that it was Aminul Islam who had repudiated the second SPA when he failed to pay the stamp duty charges of RM48,000.00 to LHDN. [59] Technochase admitted that in both first SPA and second SPA, it had received from Aminul Islam 10% of the sale and purchase prices which amounted to RM880,000.00 (RM700,000.00 + RM180,000.00). [60] The issue to be determined by this Court in Suit 26 was whether the sale and purchase price for the first SPA was RM3,500,000.00 or RM7,000,000.00, and whether the Plaintiffs had repudiated the second SPA? [61] Aminul Islam contended that the reason the sale price was reduced from RM7,000,000.00 to RM3,500,000.00 was upon the request of Jalaludin as Technochase did not want to pay so much RPGT for the sale of the two properties in the first SPA. Again, this reason alluded by Aminul Islam is hard to believe. [62] If it holds any truth, it means Technochase was willing to slash half the price for the two properties, i.e. give discount of RM3,500,000.00 to Aminul Islam just to avoid paying a lesser sum for RPGT. In the event the full scale of taxable amount for the RPGT was imposed on Technochase, it would only amount to RM2,100,000.00 (RM7,000,000.00 x 30%). [63] The maximum taxable amount is still lower than the purported discounted amount. No reasonable vendor would agree to slash the sale price by half just to avoid RPGT. It just does not make sense. It Page 18 of 29 would be more probable that a lower sale and purchase price was recorded so as to avoid paying a higher transfer stamp duty fee. [64] With regard to the second SPA, Technochase contended that Aminul Islam failed to pay the transfer stamp duty as such the agreement was terminated. The property in the second SPA was later sold to the 2nd defendant Mr. Gooi. In so far as the plaintiff’s evidence is concerned, this Court is of the considered view that the plaintiff Aminul Islam failed to adduce proper evidence in support of his case that the chargeable transfer stamp duty was paid. There was also no evidence in support of the plaintiff’s case that the balance purchase sum (i.e. RM1,620,000.00) was fully settled. There was no specific evidence to prove that payments were in fact made toward the balance purchase price of this particular property. [65] This Court, therefore, finds that Aminul Islam had failed to prove his case for Suit 26 on a balance of probabilities. Suit 27 [66] In this Suit 27, JR Joint Resources, as the purchaser, entered into a sale and purchase agreement dated 31.07.2009 with Jalaludin, as the vendor, for the sale and purchase of 8 properties for a total sum of RM811,500.00 (based on JR Joint Resources’ version). [67] Jalaludin’s version of the story was that the total sale and purchase price for the 8 properties was RM2,035,000.00. Page 19 of 29 [68] As far as JR Joint Resources was concerned, its claim in this Suit 27 was only in relation to 5 properties, the other 3 properties were considered as already transferred to JR Joint Resources. One of these 5 properties was later sold to the 2nd Defendant Mr. Gooi by Jalaludin. [69] JR Joint Resources adduced a sale and purchase agreement that stated the sale price for the 8 properties was RM811,500.00 (P54) in support of its contention. Jalaludin also adduced another sale and purchase agreement that stated the sale price for the 8 properties was RM2,035.000.00 (D61). Both parties admitted they had signed the two conflicting documents. [70] Again, JR Joint Resources alluded that the reason why there was a lower sale and purchase price for the 8 properties was because Jalaludin did not want to pay a higher chargeable tax for RPGT. Again, this Court could not accept this illogical explanation as if it is true, Jalaludin would have discounted a total sum of RM1,223,500.00 (RM2,035,000.00 – RM811,500.00) for the 8 properties. It does not make any sense for a prudent vendor to sell a greatly discounted price just to avoid paying RPGT. [71] After applying the same reasoning and making the findings as it did in the two earlier suits in this suit, this Court finds that JR Joint Resources had failed to prove its case for Suit 27 on a balance of probabilities. The Overall Findings For All 3 Suits Page 20 of 29 [72] Based on the above findings, this Court holds that the Plaintiffs have failed to prove their cases in all 3 suits. [73] This Court is inclined to accept the Defendants’ version of the story as more probable than the Plaintiffs’ story. The Defendants’ story is the purchase price for the properties were the higher sums as mentioned earlier, and that the Plaintiffs had failed to pay the full purchase price for the properties, hence, the transfers of the properties were not effected. The Defendants argued that they were entitled to forfeit the deposits for all the agreements as provided in the agreements because the Plaintiffs had breached the agreements. [74] This Court holds that the Defendants were entitled to forfeit the deposit sum (10%) for each of the agreements. The total forfeited sum would be RM1,209,500.00. The said forfeited sum is tabulated as in Table E below: Suit Sale and Purchase Price 10% 25 RM1,260,000.00 RM 126,000.00 26 RM7,000,000.00 RM1,800,000.00 RM 700,000.00 RM 180,000.00 27 RM2,035,000.00 RM 203,500.00 Total RM1,209,500.00 Table E [75] As for the payments allegedly made by the Plaintiffs to the Defendants, this Court finds that the payment vouchers and other documents adduced by the Plaintiffs that prove payments were made by the Plaintiffs or Amirul Islam’s related company JR Global Technology Sdn Bhd. to the Defendants are those listed in Table F below: Page 21 of 29 Exhibit Date Amount (RM) Remarks – proof of payment see Exhibits bundle at page(s)

7.

4.2009 700,000.00 see cheque deposit receipt and the corresponding transaction as showed in the bank statement of the account of JR Global Technology SB 20-21

10.

4.2009 300,000.00 see instruction letter to Bank to pay Technochase 22-23 P40 14.4.2009 510,158.00 see JR Global Technology’s bank statement and the amount was transferred to an account which belonged to Technochase 64

23.

7.2009 500,000.00 See instruction letter to Bank to pay Technochase 25-26

28.

7.2009 850,000.00 See instruction letter to Bank to pay Technochase 27-28

3.

8.2009 900,000.00 See instruction letter to Bank to pay Technochase 29-30

4.

8.2009 200,000.00 See instruction letter to Bank to pay Technochase 31-32

5.

8.2009 300,000.00 See payment voucher which corresponds with statement of account 33-34 ID27 11.8.2009 100,000.00 See payment voucher, PB remittance application form and bank statement of JR Joint Resources 36-38 P28 11.8.2009 100,000.00 See payment voucher and MBB application for remittance form 39-40 P29 14.8.2009 50,000.00 See payment voucher and bank statement which corresponds with the clearing of cheque # MBB 384344 41-42 P30 18.8.2009 200,000.00 See payment voucher, MBB cheque 407836 and MBB application remittance form which the beneficiary was Technochase 43-45 Page 22 of 29 P31 28.8.2009 300,000.00 See payment voucher, MBB cheque 407938 and MBB application remittance form which the beneficiary was Technochase 47-49 P33 4.9.2009 200,000.00 See payment voucher and instruction letter 52-53 P34 7.10.2009 100,000.00 See payment voucher and instruction letter to CIMB Bank 54-55 P35 13.11.2009 50,000.00 See payment voucher and instruction letter to CIMB Bank 56-57 Total amount paid to Technochase 5,360,158.00 Table F [76] The Defendants’ witnesses’ evidence could not refute that the money was paid to them, whether it came from JR Joint Resources or JR Global Technology Sdn Bhd. [77] The Defendants’ witness Jalaludin testified that he could not remember his own company’s bank account number. The Court observes that the witness had selective memory when giving oral evidence in Court about the payments made by or on behalf of the Plaintiffs. Hence, this Court was not convinced that the payments as stated in Table F were not received by the Defendants. [78] In any event, the Defendants had argued that the Plaintiffs failed to settle the full purchase price for all the properties. The Court observes that the total amount paid by the Plaintiffs was insufficient to satisfy the full purchase price for all the properties, i.e. RM12,095,000.00. [79] Based on the Court’s findings that the Plaintiffs had only proven a sum of RM5,360,158.00 was paid to the Defendants, and that the Page 23 of 29 Defendants were only entitled to forfeit a sum of RM1,209,500.00, therefore, based on s. 71 of the Contracts Act1950, the Defendants ought to return the excess amount paid which amounts to RM4,150,658.00 (RM5,360,158.00 - RM1,209,500.00). [80] On 21.8.2018, when this Court pronounced its decisions for the 3 Suits, this Court ordered a sum of RM4,100,658.00 to be returned to JR Joint Resources by Technochase. This Court made an error of calculation in the pronouncement. The correct amount to be refunded to JR Joint Resources ought to be RM4,150,658.00, instead of RM4,100,658.00. [81] This Court finds that there were some alleged payments which were not proved by the Plaintiffs to have been made to the Defendants. Those payments are as listed in Table G below: Exhibit Date Amount (RM) Remarks see Exhibits bundle at page(s) P1 2009 228,000.00 Cash voucher; no evidence it was received by Technochase or Jalaludin; no date stated 1 P2 2009 200,000.00 Cash voucher; no evidence it was received by the Defendants; it stated for levy refund payment. 2 P3 2009 62,000.00 Cash voucher, no evidence the Defendants received the payment; purpose of payment stated as salary (loan) 3 P4 16.3.2009 300,000.00 Petty cash voucher; no evidence it was received by Technocase 4 P5 23.6.2009 100,000.00 Petty cash voucher; no evidence that Jalaludin or 5 Page 24 of 29 Technochase received the money P6 3.9.2009 300,000.00 Petty cash voucher; no evidence the amount was received by Technochase 6 P7 11.9.2009 60,000.00 Payment voucher; no evidence it was received by Technochase; it stated 10,000 for Dato Zain. 7 P10 15.9.2009 350,000.00 Petty cash voucher; no evidence the amount was received by Technochase 10 P32 3.9.2009 300,000.00 Payment voucher issued by one Gold Base Setters (M) Sdn Bhd; there was no evidence Technochase received the amount 50 P11 20.10.2009 500,000.00 Petty cash voucher; no evidence to show that Technochase received cash of half a million; 11 P12 26.10.2009 400,000.00 Payment voucher; no supporting document to show the money was t/t into Technochase account 12 P9 7.10.2009 350,000.00 Payment voucher; no evidence Technocase received the money 9 P14 19.11.2009 10,000.00 Petty cash voucher; no evidence that Jalaludin or Technochase received the money 14 P19 20.11.2009 40,000.00 Payment voucher; no supporting document that the amount was t/t into Technochase 19 P15 18.12.2009 200,000.00 Payment voucher; no evidence that Technochase received the cash 15 P16 3.5.2010 104,660.00 Petty cash voucher; no evidence Technochase received the cash 16 P17 15.8.2010 500,000.00 Petty cash voucher; no evidence Technochase received the cash 17 P18 12.11.2010 32,707.92 Petty cash voucher; no evidence Technochase received the amount 18 P36 1.12.2009 50,000.00 Payment voucher; not supported by clear evidence 58-59 P37 3.2.2010 100,000.00 Payment voucher; it seems like a cash deposit, Page 25 of 29 but the documentation in support of the payment was not clear 60-61 P38 3.2.2010 30,000.00 Payment voucher; payment by way of PBB cheque; but unable to show that it was made payable to Technochase although it was stated in the payment voucher it was paid to Technochase; the bank statement could not establish the amount was paid to Technochase 62-63 Total Less Final unproved amount RM4,217,367.92 RM10,000.00 paid to Dato Zain (see P7) RM4,207,367.92 Table G [82] The total amount which was not proven by the Plaintiffs to have been paid to the Defendants is RM4,207,367.92. The payment vouchers adduced by the Plaintiffs were mostly not supported by any evidence that Technochase or Jalaludin had received the money. [83] This Court observes that there were several transactions in which the purported payments were paid in large sum of cash (see P11, P15, P17). It is illogical for such huge sums of money to be paid out in cash, yet, there was no proof of payment was received by the Defendants or any acknowledgement of receipt on the payment vouchers by the Defendants. Who would pay half a million cash to someone without proper documentation such as evidence of receipt of payment? Page 26 of 29 [84] This Court observes that if the Plaintiffs’ contention that all sums including the unproved payments were actually paid to the Defendants is true, the total sum paid by the Plaintiffs to the Defendants would be RM9,567,525.92 (RM5,360,158.00 + RM4,207,367.92). [85] However, based on the Plaintiffs’ version of the story, the total amount for the purchase price for all the properties was RM6,531,500.00 (RM420,000.00 + RM3,500,000.00 + RM1,800,000.00 + 811,500.00). The Plaintiffs had adduced all the payment vouchers (proved and unproved) amounted to RM9,567,525.92 (exclude exhibits P8 and P13 because those payments were for stamping fees). [86] The question that arises would be why would the Plaintiffs over pay a sum of RM3,036,025.92 (RM9,567,525.92 - RM6,531,500) to the Defendants? The Plaintiffs did not offer any explanation for the excess payment of RM3,036,025.92. [87] If there was in fact overpayment, this would support the Defendants’ version of the story. The total purchase price for all the properties according to the Defendants was RM12,095,000.00 (RM1,260,000.00 + RM7,000,000.00 + RM1,800,000.00 + RM2,035,000.00). Hence, the Plaintiffs had to pay RM12,095,000.00 to the Defendants. If it is true that the Plaintiffs had paid RM9,567,525.92 (proved and unproved amount) to the Defendants, there is still a shortfall of RM2,527,474.08 which was not paid based on the total purchase price of RM12,095,000.00 (the Defendants’ version). [88] This Court had considered all other evidence which is not specifically mentioned in this judgment. Those evidence could not affect Page 27 of 29 the outcome of the final findings of this Court. For example, the evidence of Ms. Fook Yneh Ming (PW2 in Suits 25, 26, 27), she merely acted under the instruction of Aminul Islam to prepare the payment vouchers and the instruction letters to the Bank to make payments to the Defendants, and the company’s resolutions would not affect the ultimate findings of this Court. Conclusion [89] Based on the above reasoning, this Court has made the following orders: In Suit 25 i. The plaintiff’s claim is dismissed with costs of RM30,000.00 to be paid by the plaintiff to the defendants, i.e. RM10,000.00 for each defendant; ii. The 1st defendant (Technochase) is to refund a sum of RM4,150,658.00 to the plaintiff (JR Joint Resources) within one month from the date of this Order; (Note: the sum RM RM4,150,658.00 to be refunded by the 1st defendant to the plaintiff is for all 3 suits) In Suit 26 i. The plaintiff’s claim is dismissed with costs of RM10,000.00 to be paid by the plaintiff to each defendant; Page 28 of 29 ii. The 2nd defendant’s counterclaim is dismissed without costs; In Suit 27 i. The plaintiff’s claim is dismissed with costs of RM10,000.00 to be paid by the plaintiff to each defendant; Sgd. ………………………………………… (CHOO KAH SING) Judge High Court Johor Bahru Page 29 of 29 Suit 25 Counsel for the plaintiff : Sukhdev Kaur Tetuan Shukor Baljit & Partners Counsel for all the Defendants : Hanif Hassan Tetuan Hanif Hassan & Co. Suit 26 Counsel for the plaintiff : Sukhdev Kaur Tetuan Shukor Baljit & Partners Counsel for the 1st Defendant : Hanif Hassan Tetuan Hanif Hassan & Co. Counsel for the 2nd Defendant : Tetuan Lim Wong & Partnes Suit 27 Counsel for the plaintiff : Sukhdev Kaur Tetuan Shukor Baljit & Partners Counsel for the 1st Defendant : Hanif Hassan Tetuan Hanif Hassan & Co. Counsel for the 2nd Defendant :