Kalai Chelvi A/p Perumal (Sebagai Orang Yang Dilantik Untuk Mewakili Harta Pusaka Krishnakumar A/l Muniandi, Simati Yang Telah Mendakwa Untuk Dirinya Sebagai Waris Dan Pentadbir Harta Pusaka Ramayee A/p Govindan (Simati)) v MATHURAI A/L PARASURAMAN (BA-22NCvC-450-07/2017)

The Defendant filed the Notice of Application (Enclosure 62) on 25th August 2023 to seek consequential order pursuant to Order 92 (4) Rules of the High Court 2012 and based on a Court of Appeal order dated 14th March 2019 and Federal Court order dated 18th January 2023. 15/05/2024 11:56:30 BA-22NCvC-450-07/2017 Kand. 85

Ramayee a/p Govindan is the registered proprietor of land held under Mukim LM 1354, Lot 4417, Mukim Tanjong Dua Belas, Daerah Kuala Langat Negeri Selangor (referred to as the said land).

Defendant and Ramayee entered into a Sale and Purchase Agreement (SPA) on 26th September 2011 for the sale of the said land for the sum of RM206,326.00.

The Defendant had paid the purchase price to Ramayee, children of Ramayee and paid the full redemption sum of RM51,500.00 owing to Public Bank Berhad to discharge the said land.

However, on 21st November 2011, Ramayee passed away.

Messrs Noriah & Harnaik, the solicitors representing both parties in the SPA submitted the consent to transfer executed by the deceased at Kuala Langat Land Office.

The land office held an inquiry before the consent could be approved since the deceased had passed away.

After the inquiry, the Land Office told Messrs Noriah & Harnaik that the consent shall be processed and approved after Plaintiff’s Affidavit Bersumpah for the consent is received by the Land Office.

In July 2017, Krishnakumar a/l Muniandy, acting on behalf of Ramayee’s estate filed this suit in Shah Alam High Court seeking among others a declaration that the SPA was null and void on the basis of fraud. The court allowed the Plaintiff’s action. However, the Plaintiff did not issue termination letter to the Defendant before terminating the Sale and Purchase Agreement.

Defendant appealed against the said decision to the Court of Appeal. On 14th March 2019, the Court of Appeal allowed the Defendant’s appeal. The relevant parts of the Order of the Court of Appeal are as follows – “(a) Satu Perintah dan/atau deklarasi bahawa Perjanjian Jual Beli adalah sah disisi undang-undang dan Defendan mempunyai hak dan kepentingan sebagai benefisiari sah ke atas hartanah yang dipegang di bawah Hakmilik No. PM 3832, Lot No. 4417, Mukiim Tanjung Dua Belas, Tempat Sungai Kelambu, Daerah Kuala Langat, Selangor Darul Ehsan dan yang mengikat kesemua waris-waris simati termasuk Plaintif;

Secara alternative satu Perintah dan/atau injunksi terhadap Plaintif sebagai Pentadbir Harta Pusaka Simati untuk mengambil langkah-langkah sewajarnya untuk memindahmilik hartanah yang dipegang di bawah Hakmilik No. PM 3832, Lot No. 4417, Mukim Tanjung Dua Belas, Tempat Sungai Kelambu, Daerah Kuala Langat, Selangor Darul Ehsan kepada Defendan;

Secara alternative, satu Perintah Pelaksanaan Specifik terhadap Plaintif sebagai Pentadbir Harta Pusaka Simati melaksanakan dan menyempurnakan Perjanjian Jual Beli tersebut”. [11] On 1st January 2020, the Plaintiff passed away and Plaintiff’s widow named Kalai Chelvi obtained Letter of Administration dated 27th August 2020 for the Plaintiff’s estate. [12] Kalai Chelvi as the Administrator filed Leave Application to the Federal Court. By order dated 18th May 2022, the Federal Court made an Order that Kalai Chelvi is bound by the Court of Appeal Order dated 14th March 2019. [13] In allowing Kalai Chelvi’s application for substitution, the Federal Court ordered – “(c) Mendiang Pemohon Kalai Chelvi a/p Perumal sebagai pemohon yang mengganti sebagai wakil/Pentadbir Harta Pusaka Krishnakumar a/l Muniandi akan melaksanakan segala obligasi seperti yang diperintahkan dibawah Perintah Mahkamah Rayuan bertarikh 14th March 2019 jikalau kebenaran untuk merayu ke Mahkamah ditolak dan/atau Rayuan ditolak”. Salient points from the Respondent’s Submission [14] Enclosure 62 was filed by the Defendant because Kalai Chelvi as the representative refused to execute the Consent Application Form, Statutory Declarations and Memorandum of Transfer and to commence the transfer process as ordered by the Court of Appeal. [15] Defendant had no option, except to seek consequential order so as to give effect to the Judgments handed down by the Court of Appeal and the Federal Court. [16] Kalai Chelvi is responsible of defying Orders of Court of Appeal and Federal Court in refusing to execute the said documents. [17] Messrs Noriah Harnaik had submitted the relevant documents to Kalai Chelvi on 26th May 2023 and requested the same to be returned within 14 days. However, Kalai Chelvi failed to do so. Salient points from the Plaintiff Submission [18] Plaintiff submitted that the Court of Appeal has reversed the judgment of the High Court and held that the sale and purchase agreement entered between the plaintiff and defendant is valid. [19] According to Plaintiff, under clause 3.4 of the SPA, Ramayee was obliged to apply for consent within one year from the date of the agreement. Even though Ramayee or her estate took no steps to obtain consent from the relevant land office, Defendant did not enforce his rights under the SPA against the estate of Ramayee. [20] The Plaintiff also alleged that doctrine of res judicata is applicable to Defendant’s application. Analysis [21] The Federal Court Leave Application filed by Kalai Chelvi was dismissed on 18th January 2023. Hence, Kalai Chelvi’s obligations to comply with the Court of Appeal Order only arose on 18th January 2023. [22] The SPA is valid, binding and enforceable as affirmed by the Federal Court. [23] Therefore, the submission by the Plaintiff that the SPA can be terminated by referring to the 14th March 2019 date is misconceived. [24] This Court is of the view that the Defendant has liberty to file this application as ordered by the Court of Appeal. [25] The Plaintiff also contended that this Court has no powers to hear Enclosure 62. The right quorum according to the Plaintiff is the Court of Appeal. [26] The Federal Court in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 decided that – “[19] …. The superior Courts possess a residual inherent jurisdiction to, inter alia, clarify the terms of an order and to make ancillary Orders primarily to give effect to the decision of Judgment handed down. It is a necessary jurisdiction to enable a Court to ensure that substantive between the parties is served, so as to give effect to its primary decision, through the dispensing a procedural justice” [21] and the form in which the exercise of such inherent jurisdiction is effected is via the “liberty to apply” rule. The general principles that all Court Orders carry with them the inherent liberty to apply, although this right is often expressly reserved in relation to final Orders”. [27] Hence, this Court possesses the powers and jurisdiction to grant reliefs as sought by the Defendant in Enclosure 62. [28] With regards to the applicability of doctrine of res judicata to the consequential order application under the “liberty to apply” rule, the Federal Court in Stone World referred to Kanawagi s/o Seperumaniam v Penang Port Commission [2001] 5 MLJ 433 and stated as follows – “[34] The Court went on the examine the principle of finality and concluded that the application did not attract “the rule of res judicata” and corollary to its the rule of issue estoppel and functus officio”. Importantly the Court pointed out that the application for consequential order was neither a re-hearing nor a re-opening of the case.”

[29] Accordingly, based on the reasons above, the Court allows the Defendant’s application in paragraph (a), (b), (c) and (d) of Enclosure 62. [30] Costs of RM3,000.00 to be paid by the Plaintiff to the Defendants, subject to the allocator fee. Dated : 15 May 2024 Signed .….….............................................................. DATO’ HAZIZAH KASSIM Judicial Commissioner Shah Alam High Court (NCvC10) The decision was delivered on 18 March 2024. To the parties’ solicitors:

For the Plaintiff : Manoharan Malayalam Anis Salihah binti Abd Malek Messrs M Manoharan & Co. (Kuala Lumpur)

For the Defendant : Silas S Munianty a/l Seenivasagam K. Chandrasekar Messrs Azariah & Associates (Klang)