To indemnify the Plaintiff against any and all losses, damages, expenses, claims or costs. Defendant’s admission of debt and settlement proposal [17] By two letters dated 22.2.2024, the Defendant acknowledged that the Buyer failed to purchase the Rapid Option Shares and the YNH Option Shares. [18] The Defendant had also authorized the Plaintiff to set-off the sum of RM 1,000,000.00 as part of the premium payment from his account maintained with the Plaintiff. [19] The Defendant also undertook to pay the balance premium amount by 15.3.2024 and sought for the Plaintiff’s indulgence to settle the outstanding sum with a reduced premium. Summary of the Plaintiff’s case (in supporting Enclosure 9) [20] The Plaintiff argues that the Defendant is bound by the terms of the Rapid Guarantee and the YNH Guarantee, and that the Defendant has no defence in this action. There is also a settlement agreement entered into between the Plaintiff and the Defendant. The parties have agreed on a repayment schedule and the Defendant had given his unconditional acceptance to the terms therein. The Defendant had also paid the first instalment. [21] On the issue raised by the Defendant that the Rapid Option Agreement and the YNH Option Agreement are illegal S/N NMhNT0/QlkyxhxLhGIx5ww moneylending agreement which contravenes the Moneylenders Act 1951, the Plaintiff argues (pursuant to clause 9 of the Rapid Guarantee and the YNH Guarantee) that the Defendant has accepted the guarantees upon obtaining his own legal advice and he has perfectly understood the terms therein. Therefore, the Defendant should not be allowed to absolve himself of a bargain which he knowingly entered into. [22] On the issue that the consideration were retrospective and insufficient (the Rapid Guarantee and the YNH Guarantee were dated 17.10.2023, whereas the Rapid Put Option Period and the YNH Put Option Period were two months from 25.10.2023), the Plaintiff argues that valid consideration was clearly given. This can be seen from the first paragraph of the Rapid Guarantee and the YNH Guarantee. On the reading of the Rapid Guarantee and the YNH Guarantee in its entirely, the Defendant has also clearly agreed to a continuing obligation. Summary of the Defendant’s case (in opposing Enclosure 9) [23] The Defendant pointed out that the Plaintiff is suing the Defendant (as guarantor) in one suit and separately suing the Buyer (as principal) in a different suit. The Defendant argues that this anomaly (of suing the principal and guarantor separately) may lead to conflicting decisions. Therefore, the Defendant submits that the summary judgment application ought to be dismissed pursuant to Order 14 rule 3(1) of the Rules of Court 2012. S/N NMhNT0/QlkyxhxLhGIx5ww [24] The Defendant also pointed out the fact that in a separate suit No WA-22NCC-105-02/2024 (“the Dreambig Suit”), Dreambig Potato Sdn Bhd had sued the Plaintiff. In the Dreambig Suit, the Plaintiff had sought to include the Buyer into the counterclaim (for breaches under the Rapid Option Agreement and the YNH Option Agreement). However, the Plaintiff did not succeed in its application. [25] The Defendant now argues that since the Plaintiff has failed to sue the Buyer in the Dreambig Suit, the Plaintiff should now be estopped from proceeding with this current claim against the Defendant. Therefore, the Defendant submits that the summary judgment application ought to be dismissed under Order 14 rule 3(1) of the Rules of Court 2012 based on the issue of estoppel. [26] The Defendant also argued that the guarantee is a conditional bond, whereby the guarantor becomes liable only upon proof of a breach of the terms of the main contract by the principal. This means that the guarantor’s liability will only arise as a result of the principal’s default. Therefore, the Defendants submits that the summary judgment application ought to be dismissed under Order 14 rule 3(1) of the Rules of Court 2012 based on the issue of the conditional performance bond. [27] The Defendant also raises the fact that there is a staggering loan sum of RM 318,080,575.00 granted to a single individual. The Defendant argues that the Buyer is not an individual of high net worth to be eligible for such an amount. Therefore, the Defendant submits that, the fact that there is a staggering loan amount made S/N NMhNT0/QlkyxhxLhGIx5ww to a single individual, this case needs to be investigated under Order 14 rule 3(1) of the Rules of Court 2012. [28] The Defendant also argues that the sum of RM 318,080,575.00 was not for business purposes. Instead, the purpose is for share market speculation, disguised as “investment”. As the share price plummeted, such speculations or “investment” rendered specific performance by the Buyer impossible. The Defendant argues that it is exorbitant and unconscionable and that the whole transaction is an illegal moneylending. The Defendant submits that this issue needs to investigated under Order 14 rule 3(1) of the Rules of Court 2012. [29] The Defendant also argues that there is no valid settlement agreement. This is because paragraph (6) of the settlement agreement states that the “acceptance portion will have to be executed by the Buyer”. The Defendant argues that the settlement agreement did not materialise as the Buyer did not sign the acceptance portion. [30] The Defendant had also argues that the Supplemental Rapid Option Agreement and the Supplement YNH Option Agreement has discharged the Rapid Guarantee and the YNH Guarantee. Section 86 of the Contracts Act 1950 states that any variation made without the surety’s consent discharges the surety as to transactions subsequence to the variance. As the Plaintiff had failed to secure the prior consent of the Defendant for the Supplemental Rapid Option Agreement and the Supplemental YNH Option Agreement, the guarantees were no longer valid. S/N NMhNT0/QlkyxhxLhGIx5ww [31] Lastly, the Defendant argues that there was no consideration provided for the guarantee. The Plaintiff must prove the payment of RM 10.00 consideration. The recital clauses in the guarantee are not conclusive evidence as to whether the RM 10.00 has actually been made. Section 26 of the Contract Act 1950 states that an agreement without consideration is void. The Defendant argues that he has already adduced evidence to show that the said recitals are false, therefore the burden of proof now shifts to the Plaintiff. Since that Plaintiff has failed to discharge the burden of proof, the guarantees are considered void for lack of consideration. Findings by the Court [32] I am not able to accept the Defendant’s argument for the summary judgement application to be dismissed just because the Plaintiff is suing the guarantor and the principal separately. The discretion on who to sue lies with the Plaintiff. It is for the Plaintiff to decide how he intends to conduct his own case and to decide the person or persons he chooses to take action on or how he intends to structure the legal proceedings as a matter of strategy. [33] I am also unable to accept the argument that the anomaly of suing the principal and guarantor separately will lead to conflicting decisions. It would be undesirable to assume that there will be conflicting decisions, as each case turns on its own fact. I am also not able to agree to the Defendant’s suggestion that the Plaintiff is estopped from continuing this suit just because the Plaintiff has failed to include the Buyer in its counterclaim in the Dreambig Suit. S/N NMhNT0/QlkyxhxLhGIx5ww These are two separate suits. The Dreambig Suit has no relevance and bearings to this current claim. [34] I am also unable to agree to the Defendant’s suggestion that the guarantee is conditional performance bond. The terms of the guarantee clearly shows that the Defendant had expressly agreed to irrevocably and unconditionally guarantee and be liable as if he was the principal debtor and not merely as surety. [35] I am also not able to understand the relevance of the issue of the staggering loan sum of RM 318,080,575.00 and whether the transactions are share-market speculation disguised as an investment. In the commerce world, individuals and companies are free to enter into any contract, regardless of the value involved. In this case, the Defendant, having guaranteed the obligations as the principal debtor for such a sum, cannot now plead ignorance of the arrangement. [36] On the issue of the settlement, the Defendant does not actually deny signing the settlement agreement. Instead, the Defendant argues that the settlement agreement “did not materialise” and that there is “no valid settlement agreement”, by reason that the Buyer did not execute the unconditional acceptance of the terms. I find that it is very clear that there exists a settlement agreement between the Plaintiff and the Defendant. The parties have also agreed on a repayment schedule. The Defendant had also made payment. Therefore, it is difficult to accept the fact that the settlement agreement did not materialise. S/N NMhNT0/QlkyxhxLhGIx5ww [37] In Malaysia Airports Sdn Bhd v APFT Land Sdn Bhd [2018] 10 MLJ 257, Mohd Shariff JC, in finding that there was an admission which secures the plaintiff’s claim for summary judgment, referred to the decision of Abdul Malik Ishak J in Malayan Banking Berhad v Red Box (Malaysia) Berhad (2000) MLJU 108 which states as follows: “… An admission of a particular fact may either be express or implied. In whatever form it takes, the admission must be clear and unequivocal (Ellis v Allen (1914) 1 Ch 904, at p 909; Ash v Hutchinson & Co. (Publishers) Ltd (1936) Ch 489, at p 503; and Technistudy v Kelland