Kenanga Investors Berhad v Zulrafq Capital Sdn Bhd (WA-22NCC-140-03/2023)

ZULRAFQ CAPITAL SDN BHD (No. Pendaftaran: 202101012497 (1412796-A))

TAN SRI ZULHANSNAN BIN RAFIQUE (No. K/P: 540920-10-5911) …DEFENDAN-DEFENDAN (mengikut tindakan asal)

ZULRAFQ CAPITAL SDN BHD (No. Pendaftaran: 202101012497 (1412796-A))

TAN SRI ZULHANSNAN BIN RAFIQUE (No. K/P: 540920-10-5911) …PLAINTIF-PLAINTIF S/N xp/q3eRCukaV6BKVh9ag0g

KENANGA INVESTORS BERHAD (No. Pendaftaran: 199501024358 (353563-P))

MUHAMMAD TAQIUDDIN HALIM (No. K/P: 841208-14-5441)

DATUK WIRA ISMITZ MATTHEW (No. K/P: 741029-01-5387) …DEFENDAN-DEFENDAN (mengikut tuntutan balas) GROUNDS OF JUDGMENT (Enclosure 156) Introduction

On 11-2-2026, this Court dismissed an application filed by the Defendants in the main action and Plaintiffs in the counterclaim (“Zulrafq Parties”) on 24-12-2025 (Enclosure 156) for discovery pursuant to Order 24 Rules 3, 4 and 5 of the Rules of Court 2012 (“RC”).

Although reference is made to Order 24 Rule 3 of the RC, Enclosure 156 was framed and argued as an application for specific discovery of documents listed in Annexure A thereto (“Requested Documents”), said to be relevant to matters in issue in the main action. S/N xp/q3eRCukaV6BKVh9ag0g Background Facts

The main action by Plaintiff in the main action (“Kenanga”) against the Zulrafq Parties is grounded in breach of Option Agreements and a Personal Guarantee on their failure to comply with Kenanga’s demand that the Zulrafq Parties to buy 179,132,800 shares in KNM Group Berhad at the option price of

There is a related and substantially similar action in KLHC Suit No: WA-22NCC-489-07/2023 (“Suit 489”) concerning the same parties and form of agreements, but in relation to 190,476,190 shares of KNM Group Berhad at the option price of RM44,952,380.84. Suit 489 is also before this Court.

The pleaded defence and counterclaim in both the claims here and in Suit 489 is that the Option Agreements were part of a conspiracy by the 2nd and 3rd counterclaim Defendants (“Taqiuddin” and “Ismitz” respectively), to injure and defraud the Zulrafq Parties.

The factual premise of that allegation is that Taqiuddin is Kenanga’s true intended counterparty under the Option Agreements and that it was agreed and/or known to Kenanga through its representative, Ismitz, that it is Taqiuddin who is liable to make all payments thereunder.

On that basis, the Zulrafq Parties seek to vitiate the Option Agreement on grounds of illegality, undue influence and/or misrepresentation. S/N xp/q3eRCukaV6BKVh9ag0g Analysis and findings

The Requested Documents were described as follows in Enclosure 156:

The Zulrafq Parties are seeking information about payments that Kenanga received in connection with the Option Agreements, specifically vide 6 cheques for RM2.6 million and a separate sum of RM1,979,418.00, but did not in Annexure A, identify what specific documents they think such information might be found in.

This Court finds that the Requested Documents in the discovery application were not specifically identified and shown to exist, the first requirement of any application for discovery (Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581). Information in the abstract are not documents. S/N xp/q3eRCukaV6BKVh9ag0g

When this Court asked counsel for the Zulrafq Partners what “Statement of Account” referred to, he was equivocal about what it was referring to – whether it is Kenanga’s bank statements, a statement of the 1st Defendant’s account with Kenanga or any other statement of account.

Both Kenanga and Taqiuddin had filed affidavits to oppose Enclosure 156, also taking issue with the description of the Requested Documents. However, the issue taken was that the documents as described, presume that the payments were made by Taqiuddin through third parties, a fact which is denied.

Kenanga’s position under oath is that Taqiuddin did not make any payments on behalf of the Zulrafq Parties in relation to the Option Agreements and that all fees paid were paid by the Zulrafq Partners or third parties arranged by them. The inference is that the Requested Documents, as described, do not exist.

Further, Enclosure 156 is identical in form and substance to a prior application for discovery in Suit 489 (“Prior Discovery Application”), now also refiled as Enclosure 253 in Suit 489. The Prior Discovery Application had been considered and dismissed by Justice Atan Mustaffa Yussof Ahmad on 23-9-2024.

For reasons and on terms that are not entirely clear, the appeal by the Zulrafq Parties against the decision of 23-9-2024 to the Court of Appeal was withdrawn with liberty to file afresh. Kenanga did not take the point of functus officio or issue estoppel, though this Court S/N xp/q3eRCukaV6BKVh9ag0g is being asked revisit a matter already determined on the same facts.

For the record, Justice Atan delivered written grounds for the dismissal of the Prior Discovery Application. The learned Judge generously construed the Requested Documents as “documents relating to the payment transactions, including receipts and financial records showing details of the payments made under the Option Agreements.”

Even with the description of “documents” not explicitly identified as such from Annexure A of the Prior Discovery Application, the learned Judge identified 3 other reasons for the dismissal of the Prior Discovery Application that this Court readily aligns itself with: Improper shifting of burden of proof “[24] Having considered the submissions, I find that ordering discovery in this case would improperly shift the burden of proof from ZCSB and TSZ to KIB. Under Section 103 of the Evidence Act 1950, the burden of proving the existence of the alleged mutual understanding lies squarely with ZCSB and TSZ who are asserting it. Overly wide description of documents [32] I find that this discovery application amounts to an impermissible fishing expedition. While ZCSB and TSZ have provided some specific cheque numbers, their request extends beyond these to encompass all transaction details, S/N xp/q3eRCukaV6BKVh9ag0g receipts and payment information related to the agreements. No necessity for discovery [33] … if ZCSB and TSZ already possess these cheques and have exhibited them, it stands to reason that they already have access to the evidence needed to support their allegations.” Since the Prior Discovery Application, Kenanga has produced clearer images of the identified cheques totaling RM2.6 million that relates to fees payable under the Option Agreement pleaded in Suit 489. Conclusion

For all of the above reasons, this Court dismissed Enclosure 156 with costs of RM3,000.00 to Kenanga. Bertarikh: 02 Mac 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N xp/q3eRCukaV6BKVh9ag0g Peguam Untuk Plaintif (dalam tindakan asal): Shaikh Abdul Saleem bin Shaikh Abdul Karim (Jasmin Irisa binti Ahmad Mirza bersamanya) Tetuan Shaikh David & Co. Untuk Defendan-Defendan (dalam tindakan asal): Henry Poh Jun Yang Tetuan Jeeva Partnership Untuk Defendan Kedua (dalam tuntutan balas): Victor Pang Chee Siong Tetuan Justin Voon Chooi & Wing Untuk Defendan Ketiga (dalam tuntutan balas): John Aloysius Skelchy Tetuan James Monteiro S/N xp/q3eRCukaV6BKVh9ag0g