Muhammad Zahir Sanjay Bin Abdullah (yang Beramal Atas Nama dan Gaya Tetuan Muhammad Zahir) v 1. ) Mega Taikun Holdigs Sdn Bhd (WA-12ANCvC-126-08/2023)

MEGA TAIKUN HOLDINGS SDN BHD

EURASIA VENTURE SDN BHD

RAJA MANAKIAM A/L A PONUSAWMY ... RESPONDENTS IN THE SESSIONS COURT AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CIVIL SUIT NO.: WA-B52-22-04/2021

MEGA TAIKUN HOLDINGS SDN BHD (COMPANY NO.: 201401017531 (1093618-W) 18/10/2024 08:58:57

EURASIA VENTURE SDN BHD

RAJA MANAKIAM A/L A PONUSAWMY … PLAINTIFFS

1.

BIG ADVISORY SDN BHD

BIG BLUE BERHAD

MUHAMMAD ZAHIR SANJAY BIN ABDULLAH (YANG BERAMAL ATAS NAMA DAN GAYA TETUAN MUHAMMAD ZAHIR) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] This is an appeal by the Appellant who is the 4th Defendant (‘D4’) in the Sessions Court Civil Suit No. WA-B52-22-04/2021 (‘Suit 22’) against the decision of the learned Sessions Court Judge (‘SCJ’) on 2.8.2023 in allowing the Respondents’ application for discovery. S/N K/vUptnY06z6lgQ0T3o0w [2] After having considered the Record of Appeal and submissions of the parties, I allow D4’s appeal only in part for the reasons as elaborated in the succeeding part of these Grounds of Judgment (‘GoJ’). [3] The parties shall be referred to as they are in Suit 22. Background Facts [4] The 1st Plaintiff (‘P1’) is a company incorporated in Malaysia with its registered address at Suit 15-1, Wangsa Link, Jalan Wangsa Delima 10, Wangsa Maju, 55300 Kuala Lumpur and business address at No. 7, Jalan Putri 2, Taman Segamat Jaya, 85000 Segamat, Johor. [5] The 2nd Plaintiff (‘P2’) is a company incorporated in Malaysia with its registered address at Suit 15-1, Wangsa Link, Jalan Wangsa Delima 10, Wangsa Maju, 55300 Kuala Lumpur and business address at 108- 1, Jalan SBC 3, Taman Sri Batu Caves, 68100 Batu Caves, Selangor. [6] The 3rd Plaintiff (‘P3’) is P2’s director and the former director of P1. P3 is also a shareholder in P1. [7] The 1st Defendant (‘D1’) is the President and Advisor of the 2nd Defendant (‘D2’). [8] D2 is a company incorporated in Malaysia with its registered address at No. 16-2, Jalan 1/76D, Desa Pandan, 55100 Kuala Lumpur and S/N K/vUptnY06z6lgQ0T3o0w business address at Unit 121, Level 4, Wisma Central Jalan Ampang, 50450 Kuala Lumpur. [9] The 3rd Defendant (‘D3’) is a company incorporated in Malaysia with its registered address at No. 16-2, Jalan 1/76D, Desa Pandan, 55100 Kuala Lumpur and business address at Unit 121, Level 4, Wisma Central, Jalan Ampang, 50450 Kuala Lumpur. [10] The 4th Defendant (‘D4’) had previously practiced as an advocate and solicitor under the name of Messrs. Muhammad Zahir. [11] In the Statement of Claim dated 1.4.2021, the Plaintiffs pleaded that, in a discussion between P3, D1, Sanggaran a/l Subramaniam and Dato’ Seri Jalil on 31.12.2019, D1 is said to have made a representation that he would be able to obtain a contract for cleaning services business from KLCC and/ or Petronas, for P1. [12] It was also pleaded that, in order for D1 to be able to secure the contract, D1 made representations that P1 has to comply with the following terms and conditions:

P1 and D2 are to merge as a Joint Venture Covenant to obtain the contract;

D2 has to take the necessary steps to obtain the contract and confirm that the contact is to be executed by the parties within four months from the letter dated 2.1.2020;

P1 has paid for the registration of services with KLCC/ Petronas;

D1 is to obtain the contract with KLCC/ Petronas based on the agreed rate and agrees to be a consultant for P1 to ensure that all services are perfectly provided to KLCC/ Petronas;

D1 is to ensure that KLCC/ Petronas comply and cooperate with P1 for the services given under the contract;

D1 is to advance a sum of RM450,000.00 per month for five months or for a time period as required by P1 from the commencement of the contract as an investment fee or a loan, whereby the amount shall be returned to D1 on the 6th month after P1 has received payment from KLCC/ Petronas;

P1 is to deposit a sum of RM950,000.00 to D1’s solicitor i.e. D4 after the agreement is signed; and

the sum which is deposited is to be paid to D1 after the contract with KLCC/ Petronas is executed by the parties. [13] P1 alleged that it had, through P3, paid a sum of RM500,000.00 to D4 as stakeholder, which was acknowledged by D4 vide the letter dated 17.10.2020, in the following manner:

RM200,000.00 via Public Bank Banker’s cheque no. 186683 dated 6.1.2020;

RM100,000.00 via Public Bank Banker’s cheque no. 186687 dated 7.1.2020;

RM100,000.00 via RHB Banker’s cheque no. 021358 dated 7.1.2020; and

RM100,000.00 via RHB Bank Banker’s cheque no. 021370 dated 10.1.2020. [14] Further, vide the letter dated 7.2.2020 which was given by D1 to P1 and P3, Petronas confirmed the offer to appoint P1 as the contractor for building cleaning services at Suria KLCC. However, P1 or P3 did not sign any contract with Petronas. [15] Some discussions were held between the parties between 7.2.2020 until July 2020, but no steps were taken by D1, D2 and D3. [16] P1 and P3 then, in the letter dated 21.7.2020, informed that they do not wish to proceed with the contract for services as promised by D1, D2 and D3. [17] In a discussion held on 6.8.2020 between the Plaintiffs and D1, D1 purportedly made another representation that a new application was made to KLCC/ Petronas to obtain the contract under D3’s name. Consequently, P2 and P3 instructed D4 to release the sum of RM500,000.00 to D3. S/N K/vUptnY06z6lgQ0T3o0w [18] As P3 did not receive any contract from D1, D2 and D3, P3 appointed a solicitor to send a letter of demand. Vide the letters dated 23.11.2020 and 22.12.2020, D4 was asked to give a written explanation as to whom and how the sum of RM500,000.00 was released. However, no explanation was forthcoming from D4 and D4 is accused of having breached its duty as a stakeholder. [19] The Plaintiffs claimed that all the Defendants had conspired to cheat and made fraudulent representations to the Plaintiffs. [20] In addition, P1 had, from time to time, transferred a sum of RM350,000.00 to D1 for the purpose of obtaining another contract for sanitizing service at KLIA1. However, D1 failed or refused to obtain the contract for P1. [21] The Plaintiffs prayed for, among others, the sum of RM500,000.00 and RM350,000.00 or alternatively, for general damages to be assessed by the court. [22] In D4’s Defence and Counter Claim dated 25.5.2021, he pleaded that he had released the sum of RM500,000.00 to D1, D2 and D3. [23] On 7.7.2021, the Plaintiffs filed a Notice to Produce Documents Referred to in Pleadings or Affidavits (encl. 10) pursuant to O. 24, r. of the Rules of Court 2012 (‘RC 2012’) namely, “… dokumen berkenaan butir-butir pembayaran wang sebanyak RM500,000.00 oleh Defendan Ke-empat kepada Defendan-Defendan yang disebut di S/N K/vUptnY06z6lgQ0T3o0w perenggan 17, 19(b) dan 21.”. However, D4 did not reply or respond to the said Notice. [24] This resulted in the Plaintiffs’ application dated 19.7.2021 against D4

there is a document which details how and when the sum of RM500,000.00 was given or withdrawn to D1, D2 and D3;

the document is relevant to prove that the sum of money was paid to Messrs. Muhammad Zahir on instructions of the Defendants and that it is D4’s responsibility as an advocate and solicitor to provide details as to how and when the money was given to any party; and

the document is in the possession, custody and power of D4 as he is the advocate and solicitor who had received the sum of RM500,000.00 from the Plaintiffs. D4 must produce the monthly statements of the clients’ account and the cheques which were issued to the Defendants. [28] Hence, the SCJ allowed prayers (c), and (d) in encl. 11 with costs of RM2,000.00 to be paid by D4 to the Plaintiffs. [29] This appeal is the second appeal by D4. On 28.7.2021, the SCJ at that time had allowed the Plaintiffs’ application without allowing D4 to file any affidavit (see the SCJ’s GoJ in Appendix 1 to D4’s written submission in encl. 8). [30] D4’s appeal against the SCJ’s decision was dismissed by the High Court on 28.10.2021 (see the GoJ in Appendix 2, encl. 8 and Muhammad Zahir Sanjay bin Abdullah (yang beramal atas nama dan S/N K/vUptnY06z6lgQ0T3o0w gaya Tetuan Muhammad Zahir) v Mega Taikun Holdings & Ors [2021] MLJU 2987). [31] D4 then appealed to the Court of Appeal and on 24.11.2022, it was ordered by consent that the appeal be allowed, the decisions by the High Court and Sessions Court be set aside and the case be remitted to the Sessions Court for encl. 11 to be heard before another SCJ. The Legal Principles on Appellate Intervention [32] All appeals to the High Court shall be by way of re-hearing (see s 29 of the Courts of Judicature Act 1964 [Act 91] and O. 55, r. 2 of the RC 2012). [33] It is settled law that an appellate court will not intervene with the decision of the court at first instance unless the court below is shown to be plainly wrong in arriving at the decision. A decision which was arrived at without judicial appreciation of the evidence or which cannot reasonably be explained or justified and one which no reasonable judge could have reached, is susceptible to appellate intervention (see Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 (FC) for the central feature of appellate intervention and Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC) for a comprehensive discussion of the case authorities on the legal principles). S/N K/vUptnY06z6lgQ0T3o0w The Grounds of Appeal [34] Essentially, D4 raised three grounds of appeal which are discussed below. 1st Ground : The SCJ failed to state whether the Order he gave was made pursuant to O. 24, r. 10 or O. 92, r. 4 of the RC 2012 [35] The provisions of the RC 2012 which are related to the 1st Ground of Appeal are re-produced for the ease of reference: “Inspection of documents referred to in pleadings and affidavits (O. 24, r. 10)

10.

Any party to a cause or matter shall be entitled at any time to serve a notice in Form 41 on any other party in whose pleadings or affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies of that document.

The party on whom a notice is served under paragraph (1) must, within four days after service of the notice, serve on the party giving the notice, a notice in Form 42 stating a time within seven days after the service thereof S/N K/vUptnY06z6lgQ0T3o0w at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which of the documents he objects to produce and on what ground.” “Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”. [36] D4 submitted that the SCJ’s failure to state under which provision of the RC 2012 that the Order was made renders the Order dated 2.8.2023 as flawed, defective and irregular. [37] While it is true that in his GoJ, the SCJ did not make such statement, nevertheless in paragraph 9 of the GoJ, he was mindful that the Plaintiff’s application was made pursuant to O. 24, r. 10 of the RC 2012 when he said: “Oleh itu, plaintif telah melalui peguamcaranya memohon untuk diserahkan dengan butir-butir bayaran yang dibuat kepada defendan pertama, defendan kedua dan defendan ketiga tersebut melalui notis untuk mengemukakan dokumen yang disebut dalam pliding atau affidavit dibawah Aturan 24 S/N K/vUptnY06z6lgQ0T3o0w kaedah 10 Kaedah-Kaedah Mahkamah 2012 bertarikh 7.7.2021.” [38] The SCJ did not mention O. 92, r. 4 RC 2012 at all. It can thus be safely presumed that the SCJ had O. 24, r. 10 RC 2012 in mind when he made the Order. The effect of this provision is that the court has jurisdiction to order discovery of a document referred to in a pleading, whether or not the document is in the possession, custody or power of the party in whose pleading the reference is made. The party requesting inspection must satisfy the court that inspection is necessary to dispose fairly of the matter or to save costs while on the part of the person served with the notice in Form 41, he must justify his refusal to produce such documents (see Malaysian Civil Procedure 2021 (supra) at pp 394 and 395). 2nd Ground: The SCJ had erred when he gave the Order in paragraph

as the Plaintiffs’ application did not refer to any specific document [39] D4 contended that paragraphs 17, 19(b) and 21 (‘Three Paragraphs’) of D4’s Defence and Counterclaim (‘D&C’) do not refer to a specific document but rather are general statements. The Three Paragraphs in the D&C read as follows: “17) Sebagai jawapan kepada perenggan 15 Pernyataan Tuntutan Plaintif-Plaintif, Defendan Ke-empat S/N K/vUptnY06z6lgQ0T3o0w mengesahkan bahawa Defendan Ke-empat telah menerima surat daripada Plaintif Kedua berkenaan melepaskan wang sebanyak RM 500,000 kepada Defendan Pertama. Di atas kenyataan ini, Defendan Ke-empat menegaskan bahawa tuntutan Plaintif-Plaintif ke atas Defendan Ke-empat adalah suatu pendakwaan berniat jahat (“malicious prosecution”) dan tort penyalahgunaan proses (“tort of abuse of process”) kerana Plaintif-Plaintif sendiri telah mengakui bahawa wang berjumlah RM 500,000 boleh dilepaskan kepada Defendan Pertama. Oleh yang demikian, Plaintif-Plaintif telah salah saman pihak dan ini adalah suatu salah cantum pihak dan/atau ketidakcantuman di bawah Aturan 15 Kaedah 6 Kaedah-Kaedah Mahkamah, 2012. Defendan Ke-empat juga menyatakan bahawa Defendan Ke-empat juga mempersoalkan samada wang RM 500,000 telah datang daripada Plaintif-Plaintif dan/atau daripada pihak lain. … 19) Sebagai jawapan kepada perenggan 19 Pernyataan Tuntutan Plaintif-Plaintif, Defendan Ke-empat menegaskan bahawa Plaintif-Plaintif tidak mempunyai bukti berkenaan dengan kenyataan yang telah dibuat Plaintif-Plaintif di dalam perenggan 19 Pernyataan Tuntutan Plaintif-Plaintif. Defendan Ke-empat juga S/N K/vUptnY06z6lgQ0T3o0w menegaskan bahawa kenyataan yang telah dibuat oleh Plaintif-Plaintif di dalam perenggan 19 adalah bercanggah dengan perenggan 10 Pernyataan Tuntutan Plaintif-Plaintif dan perenggan 19.3 dan 19.6 Pernyataan Tuntutan Plaintif-Plaintif. Defendan Ke-empat telah mengesahkan penerimaan Banker’s cek melalui surat bertarikh 17 Januari 2020. Seterusnya juga, Plaintif-Plaintif hanya mengelirukan dan/atau memutarbelitkan kenyataan Plaintif-Plaintif dan Defendan Ke-empat menjawap seperti berikut: …

Defendan Ke-empat juga menegaskan bahawa wang RM 500,000 telah diserahkan kepada Defendan Ketiga. Mengapakah Defendan Ke-empat perlu mengeluarkan resit rasmi apabila Defendan Ke-empat telah memberi surat bertarikh 17 Januari, 2020 yang bankers cek telah diterima oleh Defendan Ke-empat tetapi tidak diterima daripada Plaintif-Plaintif tetapi daripada Defendan Pertama dan Defendan Kedua; … 21) Sebagai jawapan kepada perenggan 23 Pernyataan Tuntutan Plaintif-Plaintif, Defendan Ke-empat S/N K/vUptnY06z6lgQ0T3o0w menegaskan bahawa Plaintif-Plaintif perlu mengkaji semula kenyataan Plaintif-Plaintif kerana bagaimanakah Defendan Ke-empat berhutang apa-apa kepada Plaintif-Plaintif sedangkan Plaintif-Plaintif sendiri telah mengizinkan Defendan Ke-empat untuk melepaskan wang RM 500,000 kepada Defendan Pertama dan Defendan Kedua. Seterusnya juga, Defendan Ke-empat juga menegaskan bahawa Plaintif-Plaintif tidak layak menuntut apa-apa daripada Defendan Ke-empat kerana tuntutan Plaintif-Plaintif secara sendirinya adalah suatu tort penyalahgunaan proses Mahkamah dan pendakwaan berniat jahat memandangkan Plaintif-Plaintif tidak mempunyai apa-apa bukti berkenaan dengan kenyataan yang telah dibuat oleh Plaintif-Plaintif di dalam perenggan 20 Pernyataan Tuntutan Plaintif-Plaintif.”. [40] D4 further relied on the following excerpt in the case of White v. Spafford & Co. [1901] 2 KB 241 in submitting that the Plaintiffs must specifically refer to a document which they want to be produced or disclosed: “... Now reading that rule, and having regard to its express terms, and also to the state of the law at the time at which it was framed, it seems to me perfectly clear that its object is that a litigant who can point to specific documents, which he is able to name and specify in his affidavit, and who is in a S/N K/vUptnY06z6lgQ0T3o0w position to swear that in his belief they are or have been in the possession of his opponent, and that they relate to the matters in question in the action, shall have a right to discovery of those particular documents. But the key of the position is this - that there must be an affidavit of his belief as to specific documents capable of being named and specified. The rule applies only where those conditions are fulfilled. It is obviously not intended to give to the party who is seeking discovery, upon a mere general affidavit, based upon a priori reasoning, asserting that he has reason to believe that letters must have passed between his adversary and some third person, or that books or other documents must exist relating to the subject-matter of the action, a right to discovery of those documents. ...”. [41] In my considered view –

paragraph 17 of the D&C refers to a document, namely P2’s letter to D4 about releasing the sum of RM 500,00.00 to D1. The letter at pp 134 - 135, encl. 3 is P2’s letter to D4 dated 17.8.2020 to release RM500,000.00 to D3.

subparagraph 19(b) of the D&C also refers to a document i.e. D4’s letter dated 17.1.2020 which states that D4 received the banker’s cheque from D1 and D2; and

paragraph 21 of the D&C does not specifically state that the Plaintiffs had given written consent to D4 to release the sum of RM500,000.00 to D1 and D2. However, D4 pleaded that the said sum of money was released to D1 and D2. One would think that the release of such hugh sum of money would surely be documented or some documents exist to show that money was transmitted or credited to D1 and D2, especially in view of the fact that D4 was an advocate and solicitor and the money was held as a stakeholder. [42] The letters in paragraph 17 and subparagraph 19(b) of the D&C are meant to support D4’s defence that, although D4 received the money, the same was released to D1 as per P2’s instructions. I pause to make the same observations as the learned High Court Judge did in paragraph 27 of the GoJ about the inconsistencies in D4’s pleadings in the Three Paragraphs of the D&C. Nonetheless, what is significant is that the Plaintiffs are seeking for “butir-butir pembayaran wang sebanyak RM500,000.00” by D4 to D1, D2 and/ or D3 as pleaded in the D&C and quoted in paragraph 39 above to be produced as these would show details as to the recipients of the money, the amounts released and the date of release. [43] Even though the Three Paragraphs in the D&C did not expressly mention about bank statements or any other document relating to the release of the money, logically, and at the very least, there would be bank statements to support D4’s pleadings. To borrow the words of the S/N K/vUptnY06z6lgQ0T3o0w learned High Court Judge in paragraph 17 of the GoJ, “… documents which must have in the ordinary course of event been in existence to reflect, record or document that very specific matter which is itself pleaded.”. [44] In the upshot, I am satisfied that the Plaintiffs have established, on a balance of probabilities, the requirement of “a document” and that the details of payment sought by them is necessary to dispose fairly of the suit in the court below and would save costs. On the other hand, D4 has not discharged the burden of showing justification for his refusal to produce such documents. In this regard, there was no error on the part of the SCJ in allowing the Plaintiffs’ application in encl. 11. [45] For the sake of completeness, D4 additionally raised the issue of the words “Mohan Kumar” on the first page of the Notice To Produce in encl. 10, The argument is that the words are not a signature and of a legal nature and hence, encl. 10 is defective. [46] The words “Mohan Kumar” were indeed typed and not signed on the first page of encl. 10, however, I would regard this as a mere irregularity and the provisions of O. 1A and O. 2, r. 1 of the RC 2012 may be invoked to cure this irregularity or procedural non-compliance by the Plaintiffs and/ or their solicitors. S/N K/vUptnY06z6lgQ0T3o0w 3rd Ground: The SCJ had erred when he made the Order in paragraph

for the Plaintiffs to file a Reply to the Defence and Defence to Counterclaim after 14 days from the date of receipt of the documents from D4 [47] Mr Mohan Kumar submitted for the Plaintiffs that the order was made pursuant to O. 92, r. 4 of the RC 2012. [48] The Plaintiffs’ Reply to Defence and Defence to D4’s Counterclaim dated 29.7.2021 was filed on 30.7.2021. If the Plaintiffs are desirous of amending this pleading after receiving the documents under the discovery order, an application under O. 20, r. 5 RC 2012 would have to be made by the Plaintiffs. In this regard, I agree with D4 that the SCJ was plainly wrong in making this order. [49] In the circumstances, I allow D4’s appeal only in part i.e. by setting aside paragraph (c) in the Order dated 2.8.2023 and no order is made as to costs. Dated: 20 September 2024 (ALIZA SULAIMAN) Judge High Court in Malaya (NCvC2) Kuala Lumpur S/N K/vUptnY06z6lgQ0T3o0w Solicitor: For the Respondents: S Mohan Kumar Messrs. Mohan Kumar Advocates & Solicitors No. 29, 2nd Floor Jalan USJ 10/1A USJ 10 Subang Jaya 47620 Selangor [The Appellant appeared in person]