Nesa Growth Resources v 1. ) Solarimpex Trade Sdn Bhd (BA-22NCvC-134-05/2020)

SOLARIMPEX TRADE SDN BHD

VIJAYARAKAVAN A/L KRISHNASAMY

JANATHERAN NAIR A/L BALASUBRAMANIAM

KUMAR A/L VELLAYAN (NO. K/P : 801211-10-5225) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT 25/07/2025 15:30:44

This judgment addresses two Notices of Appeal, both filed simultaneously on 4 March 2025 by the Plaintiff.

The first Notice of Appeal is concerned with the Plaintiff’s appeal against the decision of this Court dated 23 November 2023 dismissing the Plaintiff’s application in Encl 83 to amend the Writ and Statement of Claim.

The second Notice of Appeal is the Plaintiff’s appeal against the whole of the decision of the Court dated 23 November 2023 to dismiss the Plaintiff’s claim against all the Defendants.

I had considered the cause papers and submissions of the parties and my decision was to dismiss both the application as well as the Plaintiff’s main suit against all the Defendants.

The Plaintiff is dissatisfied with my decision hence the concurrent filing of the notices of appeal.

I have incorporated my decision on both matters into this Grounds of Judgement as the salient background facts apply to both and it is convenient to deal with both matters in one judgement. Background and Preliminary 7. In initiating the suit, the Plaintiff has described itself as a private limited company (syarikat sendirian berhad) incorporated pursuant to the Companies Act 2016 suing the Defendants jointly and severally for the following reliefs :

pay the sum of RM1,023,716.41 within 7 days from date of the Order;

General damages;

Exemplary damages;

Interest at the rate of 5% from date of filing of the Writ until final settlement;

Costs and any other reliefs as this Court deems fit.

The Plaintiff claims it is an investor and had entered into an Investment Agreement sometime in early 2017 with the 1st Defendant whereby the Plaintiff will invest an amount of money for the 4th Defendant to deliver sand to two (2) construction projects undertaken by the 1st Defendant.

9.

The Plaintiff via PW 3 has alleged that a sum of RM1,828,584.34 was invested in the 1st Defendant company pursuant to the Investment Agreement. PW 3 claims he has issued 10 invoices comprising of 9 invoices amounting to RM1,248,032.29 with the remaining invoice amount to RM820,903.41.

The trial went on for 2 days. The Plaintiff and the Defendants each called 4 witnesses. The trial came to a close on 28.3.2023 and was adjourned for submissions and oral clarification.

After hearing submissions and clarification from both counsel, the court deferred decision to 8.9.2023.

On the same day after submissions were heard the Plaintiff filed a certificate of urgency in the evening wishing to amend the Writ and Statement of Claim.

The Court vacated the date for decision fixed on 8.9.2023 in order to hear the Plaintiff’s application first. Parties were given time to file their respective affidavits and written submissions.

The Court heard and deliberated on the application for amendment on 23.11.2023, dismissed it and proceeded to deliver its decision on the main suit on the same day. Encl 83 – the Notice of Application to amend the Writ and Statement of Claim 16. The cause papers are as follows:- Notice of Application dated 23.8.2023 (Encl 83)

the Plaintiff’s Affidavit in Support (AIS) affirmed by Plaintiff’s counsel on 23.8.2023 (Encl 84);

the Defendants’ Affidavit in Reply (AIR) affirmed on 20.9.2023 (Encl 86); and

the Plaintiff’s Affidavit in Reply (AIR) affirmed on 16.10.2023 (Encl 87).

The application in Encl 83 is by the Plaintiff seeking leave of Court to amend the Writ and Statement of Claim pursuant to Order 20 Rule 5 and Order 92 rule 4 of the ROC 2012. The application is essentially to amend the intitulment in the cause papers and to put right the Plaintiff’s entity from “Nesa Growth Resources” to “S Balachandar a/l Samy c/o Nesa Growth Resources”. That would mean that the Plaintiff now claims that he is suing as the sole proprietor of Nesa Growth Resources and not the legal entity of a company. The rest of the cause papers remained largely intact.

The Plaintiff grounds for the application and contentions are as follows :

the Plaintiff can apply to amend its pleading at any stage of the proceedings pursuant to Order 20 ROC 2012.

(ii) the amendment application was made to ensure that the correct parties are named and to ensure that the relevant issues between the Plaintiff and the Defendants can be resolved fairly

(iii) the amendment application is bona fide and it was filed as soon as was possible as the Defendant had never raised any objection as to the Plaintiff’s entity to sue. It was only during the trial that the issue arose

(iv) the amendment application will not prejudice the Defendants in any manner which cannot be compensated with costs.

The Defendants’ opposed the application on the following grounds :

there was inordinate delay in making the application;

(ii) the application was made in bad faith, a tactical maneouver and was gravely prejudicial to the Defendants;

(iii) it is an afterthought after the Court had sought clarification on the legal entity of the Plaintiff in pursuing the claim;

(iv) the proposed amend has changed the character of the suit completely and the Defendants have lost their advantage of their defence to the suit.

Order 20 rule 5 ROC 2012 governs the law on amendment of pleadings in Malaysia. The party making the application must show to the Court that :

20.1 the application to amend is made bona fide or in good faith;

20.2 the application will not prejudice the other party which cannot be compensated with costs; and

20.3 the amendment will not turn the suit of one character into a suit of another and inconsistent character.

20.4 there is no inordinate delay in making the application. (see Yamaha Motor Co Ltd v Yamaha (M) Sdn Bhd [1983] CLJ Rep 428).

It is significant that the word “may” is used in Order 20 rule 5 meaning it gives the court an unfettered discretion to decide the application on a case by case basis. The discretion must be carefully exercised in the circumstances of each individual case. That discretion must of course be exercised by applying the well-established principles laid down in Yamaha Motor.

The law provides that when application to amend the pleading is made at a very late stage as is the case here, the party applying to amend bears the burden of producing cogent reasons to explain why the application was sought so late.

Courts in general are reluctant and generally frown upon late amendment applications. In Hong Leong Finance Bhd v Low Thiam Hoe & Another Appeal [2016] 1 MLJ 301 the Federal Court clarified the applicability of Yamaha Motor under the new ROC

The Federal Court held: “[16] With respect, the Court of Appeal in applying the principles laid down in Yamaha Motor’s case had failed to consider that the Yamaha Motor’s case by itself was not concerned with the amendment made on the day of the trial as was done in the present case. The principles in Yamaha Motor in our view were laid down in respect of an application to amend that was made at an early stage of the proceedings in particular before the trial commences. [17] In Yamaha Motor, the Federal Court amongst others considered the effect of O. 20 r. 5 of the Rules of the High Court 1980 (“RHC 1980”) (now known as Rules of Court 2012 (“RC 2012”)). The facts in Yamaha Motor showed that the application to amend the statement of claim was made about seven months after the original statement of claim was amended and the trial has not commenced. [18] It is pertinent to note that Yamaha Motor was decided under the old RHC 1980. The civil procedure has since then changed with the introduction of the pre-trial case management in the year 2000 under O. 34 of the RHC 1980 (w.e.f. 22 September 2000) and now under O. 34 of the RC 2012 (w.e.f. 1 August 2012). Nowadays the court recognises especially under the new case management regime that a different approach needs to be taken to prevent delay in the progress of a case to trial and for its completion. The progress of the case is no longer left in the hands of the litigants but with the court in the driver’s seat. (See the case of Syed Omar Syed Mohamed v. Perbadanan Nasional Bhd [2012] 9 CLJ 557). In particular when an application to amend the pleading is made at a very late stage as was done in the present case, the principles in Yamaha Motor ought not to be the sole consideration. This is because an order for compensation by payment of costs in such a case may not be an adequate remedy and it would also disrupt the administration of justice which affects the courts, the parties and the other users of the judicial process. (See the case of Conlay Construction Sdn Bhd v. Perembun (M) Sdn Bhd [2013] 9 CLJ 828; [2014] 1

Applying the above principles to the instant case, this Court finds there is a grave inordinate and unreasonable delay in the filing of this amendment application on 23.8.2023 by the Plaintiff. The delay is almost 4 years after the filing of the Writ and Statement of Claim. More acutely the trial had already concluded and this court had heard submissions from both learned counsel and fixed a date for decision of the main suit.

The Affidavit in support (Encl 84) which is affirmed by the Plaintiff’s solicitor has not furnished any reasonable explanation for the inordinate delay. In her AIR the Plaintiff’s solicitor laid the blame on the Defendant for not having raised the issue on the Plaintiff’s legal entity earlier and only raising this for the first time in their written submissions. It was contended that the Defendants had never made an issue out of it prior to this.

With respect the Plaintiff’s solicitor’s narrative does not reflect the actual position in relation to the chronology of events. It is important to note that the application was filed only after the Court had repeatedly sought clarification from learned counsel for the Plaintiff on the issue at hand. For reasons best known to the Plaintiff and unexplained to court is why no application was made prior to the trial. It is trite that a party must be cited in their proper entity and it is the duty of counsel acting for their client to ensure that the legal entity of the party suing is accurate. Learned counsel is the counsel on record for the Plaintiff from the onset and would have known of the Plaintiff’s status and should have named the Plaintiff correctly in the cause papers. It does not lie in the mouth of counsel to blame the other side for their shortcomings.

The Defendants’ counsel had given enough notice to the Plaintiff when they forwarded the result of the Business Search to the Plaintiff to be included in the Bundle of Documents. The Business search document is placed in Part A of the Common Bundle of Documents. This meant that parties agreed to its authenticity and its contents. The Plaintiff’s solicitor should therefore have been aware of the status of the Plaintiff and addressed it at the time of the filing of the cause papers. The fact that the Plaintiff was not suing in the capacity of a company is known or ought to have been known by the Plaintiff’s solicitor from the outset. The grounds offered are far too flimsy and too late in the day for the delay to be excused.

With the greatest respect the Plaintiff’s solicitor should have taken steps to rectify this before the trial or at the very least after cross examination of PW 3 who is undoubtedly the Plaintiff’s main witness. Counsel for the Defendants had repeatedly challenged PW 3 in regard to the Plaintiff’s locus/capacity to sue. The Plaintiff’s solicitor remained in slumber and was oblivious of the serious challenge to the Plaintiff’s claim.

In this context it is not true that the Defendants only raised this issue in their written submissions. The notes of proceedings will testify to the fact that PW 3 was challenged under cross-examination but PW 3 stood his ground maintaining that he is the Director of the Plaintiff company and the description in paragraph 1 of his statement of claim is accurate. He maintained this stand even after he had been shown the SSM search.

No steps were taken until the Court sought clarification from learned counsel. The Plaintiff’s solicitor did not take heed even after the Defendants had filed and served their written submissions. If the Plaintiff’s solicitor in her affidavit believed the Defendants only raised this objection in the written submissions, the Court would then have to question the Plaintiff as to why was the application to amend not filed after having sight of the written submissions. The Defendants’ written submissions was filed on 28.6.2023 and clarification was heard on 23.8.2023. It begged the question as to why was the application not filed as early as 28.6.2023?

In my judgment the Defendants’ contention that the amendment was not made bona fide is justified. Parties are reminded that bona fides or the lack of it is an essential element of any claim for an amendment according to the Yamaha Motor principle. The Plaintiff had every opportunity to make the application much earlier but only sought to make the application later. Surely the pressing need to amend the pleadings had become known already. The Plaintiff should have immediately done so but did not. This conduct has in my view raised the irresistible inference that the application was done in bad faith. The evidence before this Court supports the Defendants’ contention that not only is the instant application not bona fide, it is an afterthought. The Defendants’ objections are with merits and justified.

Late applications, particularly like the one in the instant case should not be allowed if it unfairly prejudices the opposing party. It deprives the Defendants of their rights and if allowed, it would cause unrepairable prejudice to the Defendant which could not be compensated with costs. It is more so when the application for leave to amend the pleadings is filed four years after the action commenced. There is no reasonable explanation for this delay, hence the conclusion to be drawn is that the application is not bona fide.

Bearing in mind the crux of the Defendants’ case hinges on the capacity of the Plaintiff to sue, allowing the proposed amendment would prejudice the Defendants as such prejudice cannot be adequately compensated with costs.

Having carefully considered the submissions of both parties, it is my finding that there has been an inordinate and unreasonable delay in bringing this amendment application.

An important point worth noting is that the Affidavit supporting the application is not deposed to by PW 3, the person who is the sole proprietor of the Plaintiff. Instead it was filed by the Plaintiff’s solicitor. One wonders why the solicitor affirmed the affidavit instead of PW 3 himself.

As correctly pointed out by learned counsel for the Defendants can the Plaintiff’s solicitor affirm the supporting affidavit in place of PW 3 bearing in mind his testimony under oath was to clearly and unequivocally maintain that the contents of the Statement of Claim dated 30.3.2020 is correct. In fact, he confirmed the Plaintiff is a sendirian berhad company formed under the Companies Act 1965 and he is its director. There is clearly a serious contradiction between the earlier position taken by the Plaintiff with the need to amend his capacity to sue at this stage. The Plaintiff should be bound by his own testimony in court.

Ironically the “proposed amended statement of claim (“CADANGAN PERNYATAAN TUNTUTAN TERPINDA” at Exh RK-4 in Exh 84) still continues to maintain that the Plaintiff was formed under the Companies Act 1965. The Plaintiff has retained the phrase “Plaintif merupakan pemilik perniagaan milikan tunggal sebuah Syarikat sendirian berhad yang ditubuhkan selaras dengan Akta Syarikat 1965 Akta Pendaftaran Perniagaan 1956”. This drafting is careless, contradictory and obviously untrue. The Plaintiff’s solicitor did not address the Defendants’ contention on this issue in her reply.

Pausing here for a moment, the situation is further aggravated by the fact that while the Plaintiff’s name in the Writ is to be amended, there was no corresponding application to amend the Plaintiff’s name in the proposed draft Statement of Claim.

Learned counsel for the Defendants has argued that the amendment application should not be allowed on grounds of prejudice. After careful consideration I find that allowing the proposed amendments would cause substantial prejudice to the Defendants that cannot be adequately compensated by costs. The prejudice caused to the Defendants is very serious as it goes to the core of the Defendants’ defence. The Defendants had prepared their defence and had put their defence to the Plaintiff’s witnesses in particular PW 3. The proposed amendment would substantially alter the nature of the Defendants’ defence. More importantly it may well demolish the very foundation of the Defendants’ defence. The Defendants would have lost their advantage in their strategy and evidence already given during the duration of the trial. It would fundamentally alter the character of their defence. The Federal Court in Hong Leong Finance had considered similar situations such as this and held that when dealing with amendments which introduce a new cause of action or defence on the eve of a trial (after the trial as is the case here) should be viewed as an attempt at a tactical manoeuvre and an attempt to repair weaknesses and gaps in the party’s version. In my view the proposed amendment would materially alter the Defendants’ whole defence and prejudice the Defendants’ ability to defend the claim. I find that the prejudice to the Defendants cannot be adequately addressed through a compensation in costs.

In view of the above findings, the Plaintiff’s application in Encl 83 is dismissed. The Plaintiff’s claim against all the Defendants 41. As highlighted earlier the Plaintiff’s claim against the Defendants as stated in the Statement of Claim rests on the basis that the Plaintiff is an investor to the 1st Defendant company and that the 1st Defendant will pay the Plaintiff upon invoices issued by the Plaintiff to the Defendant. The Plaintiff has exhibited all 10 invoices in the CBOD. All but one invoice has not been paid and the Plaintiff is claiming for all 9 invoices amounting to RM1,348,032.29. The Plaintiff also claims that there were 4 cheques issued by the 1st Defendant which were later canceled. Defendants’ Case 42. The Defendant denies the existence of any agreement let alone an investment agreement as alleged by the Plaintiff. Instead the Defendants claim there was an arrangement between them whereby the Plaintiff upon receiving purchase orders for supply of sand from the 1st Defendant, would place orders with the 4th Defendant. The 4th Defendant on his part would match the orders and deliver the quantity of sand requested to the 1st Defendant at its site project. The 4th Defendant would then forward all the supporting documents such as the weightbridge/kong card to the Plaintiff in order for the Plaintiff to prepare invoices to be delivered to the 1st Defendant. Upon receipt of the invoices the 1st Defendant will pay the Plaintiff for the supply of sand. The 4th Defendant is paid by the 1st Defendant for transporting the sand.

The Defendants’ defence is as follows :

the Plaintiff has no legal capacity to sue the Defendants;

the Plaintiff has failed to prove the existence of an Investment Agreement or any other agreement between the parties indicating the investment or the profit to be paid;

the Plaintiff has failed to provide cogent supporting documents to prove the amount owing;

the pleadings do not disclose any particulars of any alleged fraud committed. There are no specific facts pleaded against the 2nd and 3rd Defendants to warrant the lifting of the corporate veil. It is not disputed that the 2nd and 3rd Defendants who are directors of the 1st Defendant had never met each other and were not involved in the alleged agreement;

in regard to the 4th Defendant, his duty was only to deliver the sand to the project site as directed by the Plaintiff and to forward the pertinent documents to the Plaintiff for him to issue invoices to the 1st Defendant. The Issues 44. The issues to be tried in my view boil down to the following :-

whether the Plaintiff and the Defendant have entered into a valid investment agreement;

(ii) whether the Plaintiff has the legal capacity to sue the Defendants’ Decision of the Court 45. It is trite that the party in a civil suit who desires the court to give judgment as to any legal right or liability bears the burden of proof (see s.101, 102 Evidence Act).

The Plaintiff bears the legal and evidential burden to prove on a balance of probabilities of establishing his case against the Defendants throughout the trial. The evidential burden does not shift to the Defendant until and unless a prima facie case is made out of the case pleaded. If the Plaintiff does not discharge his burden the claim against the Defendants will be dismissed notwithstanding wheterh the defence is or is not established (see Selvaduray v Chinniah [1939] CLJU 107).

I now deal with the issues. Legal Capacity to Sue 48. To set out the general principles first, on the issue of the Plaintiff’s legal capacity to sue the Defendants. One of the most basic and fundamental requirements when a party takes up legal proceeding to institute a claim against an opponent he must first ensure that he has the legal capacity/locus to sue. He must conversely also ensure that his opponent is an entity that can be sued.

The present suit is commenced by the Plaintiff in its business name i.e. Nesa Growth Resources in the Writ and Statement of Claim. It is the Plaintiff’s pleaded case that it is a sendirian berhad set up pursuant to the Companies Act 1965.

The relevant pleadings as appearing in the Plaintiff’s Statement of Claim are reproduced below :

Plaintif merupakan sebuah syarikat sendirian berhad yang ditubuhkan selaras dengan Akta Syarikat 1965 (pada masa yang material) yang mempunyai alamat perniagaan di No. 1, Jalan Anggerik Aranda 31/24, Kota Kemuning, 40460 Shah Alam, Selangor Darul Ehsan. Plaintif merupakan sebuah syarikat yang melabur dalam projek-projek syarikat lain untuk mendapatkan keuntungan dibawah pelaburan dalam syarikat pihak ketiga tersebut.

Based on the pleadings reproduced above, it is clear that the Plaintiff is claiming that it is a company incorporated under the Companies Act 1965. This is further fortified by PW 3’s testimony at the trial where he maintained that he is the Director of the Plaintiff company.

The SSM search dated 28.7.2020, a document produced by and for the Plaintiff confirm that the Plaintiff is a sole proprietorship business and not a company incorporated under the Companies Act 1965.

The Plaintiff’s witnesses in particular PW 3 when shown the official SSM search continued to maintained their stand that the Plaintiff is a company. PW 1 was extensively cross examined and it was put to him that this was not true to which he denied. PW 3 while admitting the contents of the SSM search still maintained his status as the Director of the Plaintiff company.

The learned counsel for the Plaintiff did not see it fit to rectify this mistake at the earliest opportunity neither did she take any steps to address this matter after the Defendants’ counsel raise this objection in their written submissions.

It was posited on the Defendants’ behalf that the issue of the Plaintiff’s non-capacity to sue is a point of law. That being the case, it is not mandatory to plead points of law in one’s pleading. It is trite that pleadings must state facts and not the law.

The law on the legal capacity of a party to sue or be sued is well settled through a number of case authorities. Before I embark on naming the cases, I would first like to refer to Order 77 rule 9 ROC which deals with sole proprietorship. It states as follows:

“Application to person carrying on business in another name (O. 77, r. 9) An individual carrying on business within the jurisdiction in a name or style other than his own name may be sued in that name or style as if it were the name of a firm, and rules 2 to 8 shall, so far as applicable, apply as if he were a partner and the name in which he carries on business were the name of his firm.”.

The High Court decision in Akitek Bersatu v Sempurna Cekap Sdn Bhd Built Sdn Bhd v LKL Ceiling Enterprise & Anor [2004] 7 CLJ 217 adopted an old English case and pronounced as follows: “There is an old case law authority which states that a sole proprietorship cannot sue under the name of his firm. It is the case of Mason and Son v Mogridge [1892] 8 TLR 805.”

More recently in the case of Global Built Sdn Bhd v LKL Ceiling Enterprise & Anor [2022] CLJU 1507 the court endorsed this principle and held as follows : “[22] Thus in respect of a sole proprietorship, Lee Hun Hoe CJ Borneo held as follows in Wong Yoon Yar v. Lin Yin Thai [1987] CLJU 21; [1987] 2 MLJ 714 SC: "We would like to make one observation on the legal status of a firm or "chop" tenant as loosely described by many in the country. There is still a popular misconception prevalent amongst illiterate tradesmen in the country that a firm or "chop" is an entity. That is not so. Unlike a company registered under the Companies Act which is itself a legal entity, a firm or "chop" although it may be registered under other legislation is nothing more than a convenient name or label for a number of persons carrying on a business in a partnership or for that matter for a sole proprietor carrying on a business. Those persons could use their own individual names if they wished followed by some such words as "trading under the style of" whenever they transacted any business. But this might well be inconvenient, especially if there were numerous partners. The obvious solution is to select one short name to include all partners. That is the "chop" name. The same situation applies to a sole proprietor. He may not wish to carry on business in his own name but prefer to choose something more colourful or meaningful to bring luck and prosperity to his business. So, he chooses a "chop" name and trades under that. But he does not by so doing create an entity separate from himself..." Also in Tan Thoo Yow v. Chia Kim San & Anor [1997] CLJU 536;; [1997] MLJU 142, Abdul Malik Ishak J (later JCA) held as follows: "...Thus, if the sole proprietor of a firm is suing he must sue in his own name and add below his own name within brackets the name of the firm of that sole proprietor so as to inform the defendant that he is suing as a sole proprietor. Translating this to the facts of the present case, the plaintiff should sue in this fashion: "Tan Thoo Yow (t/a Pusat Video Super)." In the final analysis, since the plaintiff brought this action in his own name he lacked the necessary capacity or locus standi to sue the defendants..." Finally, in Akitek Bersatu v. Sempurna Cekap Sdn Bhd [2004] 7 CLJ 217, Hishamudin Yunus J (later JCA) held as follows: "In conclusion, whoever is the plaintiff in the present action, by naming himself/itself as 'Akitek Bersatu' in the title of the writ and statement of claim, he/it has not satisfied the court that he/it has a legal personality to sue. If he/it has no legal personality to sue, then it must follow that he/it has no reasonable cause of action." [24] In the premises and since it was LKL Ceiling Enterprise but not Wong Yen Feng (trading as LKL Ceiling Enterprise) that commenced the adjudication proceedings, I find and hold the LKL Ceiling Enterprise had no legal capacity or standing/status to validly do so."

In my judgment the Plaintiff being a sole proprietorship lacked the legal capacity to commence this action against the Defendants by using its name Nesa Growth Resources. Since the Plaintiff did not have the legal capacity to sue, it must follow that it has no reasonable cause of action against the Defendants. This is in line with the decision in Re Meera Hussain bin TM Mohamed Mydin [2000] 7 MLJ 483 where it was held as follows : “[3] Being a firm, Syarikat Abu Haniffa could not sue in the name of the firm, although a prosecution could be instituted in its name. In view of the fact the judgment creditor had commenced his action in the sessions court in the name of the firm, the court in this instance could take notice of the invalidity as it was a clear matter and the facts were and could not be disputed; Mason v Mogridge and Wee Tiang Kheng & Ors v Ngu Nil Soon & Ors.”

Further in the case of Tan Thoo Yow v Chia Kim San & Anor [1997] MLJU 142 the Court held : “Thus, if the sole proprietor of a firm is suing he must sue in his own name and add below his own name within brackets the name of the firm of that sole proprietor so as to inform the defendant that he is suing as a sole proprietor. Translating this to the facts of the present case, the plaintiff should sue in this fashion: “Tan Thoo Yow (t/a Pusat Video Super). In the final analysis, since the plaintiff brought this action in his own name but lacked the necessary capacity or locus Standi to sue the defendants and, consequently, the ex parte interim injunction granted by this court on January 3, 1997 must be set aside with costs.”

Applying the principles of law from the above authorities I make the finding that the Plaintiff was incorrectly named when it commenced this suit against all the Defendants. In my judgment the Plaintiff lacked the legal capacity/locus standi to commence this action from the onset.

Accordingly, on this ground alone, the Plaintiff’s claim must be dismissed.

However, for completeness, the other issues raised by the Plaintiff in this suit will be considered. Whether there was an Investment Agreement entered into by the parties 64. As it is the Plaintiff who alleges that there existed an Investment Agreement between them, it is incumbent upon the Plaintiff to prove it. Based on the evidence presented by the parties, this Court finds that the Plaintiff has failed to prove on the balance of probabilities that there existed an Investment Agreement in the manner pleaded by the Plaintiff. There is no documentary evidence produced by the Plaintiff to substantiate the existence of an Investment Agreement. No written Investment Agreement was tendered to court by the Plaintiff nor did the Plaintiff prove the existence of any oral investment agreement throughout the trial. To make matters worse, the Plaintiff’s main witness, PW 3 in his testimony had admitted there was no contract agreed or entered into by the parties, in particular with the 1st Defendant. His testimony on this point is found at p 55 para 29 and reproduced below for ease of reference : “PW 3 : Sebenarnya saya tidak buat satu perjanjian dengan dia orang sebab biasanya saya bila dia orang minta tolong dengan saya sebab dia orang ada masalah dengan ini dan kerugian besar untuk company dia. Dia orang saja minta dengan saya…..”

Subsequently contrary to his earlier evidence PW 3 stated that it was an oral agreement between the parties. This evidence is found at p 56 para 14: “IND : Ok, saya ulang balik. Tunjukkan kepada Mahkamah ini Encik Bala perjanjian yang kamu kata di sini perjanjian antara Plaintiff dan Defendant Pertama hanyalah untuk Plaintif melabur. Tunjukkan pada Mahkamah mana perjanjian tersebut? JUDGE : Ini ada perjanjian secara dokumen atau lisan? PW 3 : Tidak, tidak. Lisan.”.

Next, I find that PW 3 was not able to provide details of the alleged investment nor could he show any proof of payments made. This court notes with concern when PW 3 admitted that the invoices and agreements are merely his assumptions. The Plaintiff could not tender or exhibit these critical documents in court. This court must exercise caution in relying upon a witness’ assumptions. Assumptions like mere opinions should be accorded little or no weight and cannot be sufficient to replace proof on a balance of probabilities. Assumptions are speculative and inherently self-serving and incapable of proving the Plaintiff’s case unless corroborated.

Under cross-examination PW 3 was referred to a letter (Exh D4) dated 5.2.2017 prepared by him. Here the Court took note that this letter contained the heading “Perjanjian Jual Beli Pasir”. The heading is self-explanatory. It is obvious that the letter makes no reference to any investment agreement as alleged by the Plaintiff. This Court finds that the letter is a significant piece of evidence that is not in favour of the Plaintiff’s case. The only conclusion to be drawn from the letter is that there might have been an agreement to buy and sell sand but there was no agreement to invest as alleged.

To add further twists to his narration PW 3 having earlier testified that the Investment Agreement is an oral agreement admitted that he had not exhibited any invoices and when confronted with his contradictory statements PW 3 then claimed that the invoice issued contained terms of an agreement in writing.

His testimony is reproduced from p 58 para 28 – 29 of the NOP as follows : IND : Saya sekarang rujuk Encik Bala pada soalan 4 dan 5 bersama. Soalan 4 dan 5 dalam Penyata Saksi. Saya mula dengan soalan 4. Jawapan kamu pada soalan 4 kamu kata kamu mempunyai perjanjian antara pihak-pihak tersebut kepada Plaintif pada 3 Februari 2017 di Nesa Growth Resources will issue invoice every two weeks and we will issue our payment cheques on the 3rd week within one week form the receipt of the invoice. Sila tunjukkan pada Mahkamah perjanjian ini yang bertarikh 3 Februari 2017. PW 3 : Itu ada dalam invois. Perjanjian itu ada dalam invois. IND : Ok. Soalan saya cara lain, tolong tunjukkan kepada Mahkamah invois ini yang RM820,903.41. PW 3 : Yang itu saya dah buat kesimpulan.”.

I find there is not an iota of evidence led by the Plaintiff to give credence to its narrative that there was an Investment Agreement and its existence. It is very revealing that PW 3 on numerous occasions in his testimony gave conflicting evidence. At one time he claimed that the Investment Agreement is verbal but later reneged and claim that the terms of the agreement can be found in the invoices issued by him to the 1st Defendant.

In my view these documents are necessary and fundamental to the Plaintiff’s claim. It forms the very basis of the Plaintiff’s claim and yet it is very glaring that these documents were not tendered into Court. It would not be wrong for this Court to invoke the presumption of adverse inference pursuant to section 114(g) Evidence Act 1950 against the Plaintiff which permits the court to presume that the Plaintiff did not tender these documents into court and did not include these documents in the Bundle of documents because these documents were non-existent. If as postulated by the Plaintiff that there was indeed an agreement he would have tendered these documents to lend weight to his claim.

It has not escaped this Court’s attention that PW 3 admitted that he had come to his own conclusion (kesimpulan) as to the amount alleged to be owed to him. Reference is made to his testimony in cross-examination as follows : “IND : Dalam bundle B. Tolong tunjuk pada Mahkamah butir-butir pelaburan yang mana kamu laburkan secara dokumen kepada Mahkamah. PW 3 : Yang itu saya buat kesimpulan. IND : Kamu buat kesimpulan ya? IND : Encik Bala, adakah kamu pasti bahawa jumlah yang diminta oleh D1 semua ditepati? PW 3 : Tidak. IND : Kamu tidak pasti ye? PW 3 : Bukan tidak pasti. Tidak. IND : Ok. Soalan saya cara lain, tolong tunjukkan kepada Mahkamah invois ini yang RM820,903.41. PW 3 : Yang itu saya dah buat kesimpulan.”.

PW 3 admitted that the investment he claimed to have entered into and the assumption he arrived at were not supported by any cogent documentary evidence. No details were provided as to how he came to such a conclusion or how the amount was arrived at. Quite crucially he could not show any monetary trail leading from how he had made those transactions or when he credited monies into the 1st Defendant’s account. Neither could he show documentary evidence showing that he had transacted into the 4th Defendant’s account. There were no details or bank statements produced to show the monies had come from where and where and who it had been paid to.

It did not help matters that both PW 1 and PW 2 had no knowledge of Exhibit D4 at p 135 (B2) and they readily agreed with the suggestion that there was no such investment agreement as alleged. In my view their admissions drove the nail into the coffin.

It is significant to note that the Letter of Demand from the Plaintiff’s solicitor dated 2.2.2018 clearly stated in paragraph 2 as follows:- “that our Client was appointed by you to deliver sand vide your confirmation letter dated 3.2.2017….” “3.1 ….for the delivery of sand done by our client..”

It is evident that the above terms certainly do not constitute an investment agreement.

The Defendants’ witnesses meanwhile all have attested that the 1st Defendant and the Plaintiff had an agreement for the purchase of sand from the Plaintiff. In p 202 of the NOP DW 2 testified as follows : RK : Ok, kenapa Plaintiff kena beli pasir pula untuk projek Defendan Pertama? DW 2 : Ini Balachandar sama Solarimpex, Balachandar dua company sudah janji.

After carefully evaluating the evidence and arguments presented, I find that the Plaintiff has failed to discharge his burden on a balance of probabilities to prove that there was a valid existing investment agreement between it and the 1st. The Plaintiff had failed to show a contractual relationship or business dealing in pursuance of an investment agreement between the parties. Furthermore, there were no invoices tendered showing the amount due and owing. In my judgment the Plaintiff’s contentions are only bare assertions not supported by any evidence.

In the Statement of Claim the Plaintiff had stated that his claims are based on the invoices he issued. Contrary to the pleadings, the Plaintiff chose not to produce these outstanding invoices in Court. Throughout the trial no invoices, agreement and/or proof of investment receipts paid were produced in court. During cross-examination PW 3 openly admitted that he could not show any of these documents in the common bundle of documents used in the trial : IND : Adakah Defendan Pertama telah membuat bayaran kepada anda berdasarkan kepada invois-invois yang dikeluarkan? Ebcik Bala, kamu dalam jawapan telah menyatakan kamu telah mengisukan 9 invois untuk projek pertama menuntut sejumlah RM1,348,032.29. Adakah invois-invois ini telah diberikan atau dilampirkan dalam ikatan B? Ada mana-mana invois dalam ikatan B ini? PW 3 : Tidak.

In addition, the Statement of Accounts relied on by PW 3 revealed that the number of invoices issued by the Plaintiff contradicted and was not consistent with the number of invoices tendered in Court. Paragraph 11 and 12 of the Statement of Claim and PW 3’s testimony confirmed that he had issued 9 invoices amounting to RM1,34032.29 with an outstanding amount of RM202,813.00 with 1 invoice in the amount of RM820,903.41. To the contrary the documents that were tendered in court and referred to state there were 4 invoices instead of 1 as alleged by the Plaintiff. The Plaintiff did not give any explanation as to the details of these invoices. More importantly no explanation was given as to why they were not produced in court at the trial.

The Defendants’ counsel has rightly pointed out the discrepancies and contradictions in the evidence by PW 3 who is the Plaintiff’s star witness. PW 3 was cross-examined on the gaps in his evidence. He denied these invoices were untrue but agreed that the details in the invoices were estimations or his own assumptions. He did not give particulars as to how he arrived at those assumptions.

It is indeed particularly troubling that PW 3 has stated that these statements are his own assumptions (‘kesimpulan’) rather than based on clear unequivocal cogent documentary evidence to prove the amounts alleged to be due. The Plaintiff has failed to prove the actual amount said to be owed by the Defendants. Mere assumptions without concrete supporting evidence are insufficient.

The Defendants on the other hand have stated that the Plaintiff’s role is merely as a sand supplier, not an investor as alleged. Most importantly the Defendants’ version unlike the Plaintiff’s is corroborated by the Plaintiff’s own document which is the Letter of Demand issued by the Plaintiff on 2.2.2018. There it expressly states that the arrangement was for delivery of sand. DW 1 further in cross-examination corroborated the Defendants’ version. His testimony established as follows : RK : Jadi saya katakan bahawa tujuan transaksi ini secara keseluruhannya hanyalah pelaburan untuk mengkomplitkan atau menyeluruh, menyempurnakan kedua-dua projek tersebut dan bukannya utnuk pembekalan pasir oleh Plaintiff. Setuju atau tidak? DW 1 : Tidak setuju. RK : Tidak setuju. Mengapa tidak setuju? DW 1 : Sorry. I mean Plaintif adalah pembekal pasir dan D4 adalah pembekal transport pengangkutan. Arrangement antara Plaitniff dengan D4 you kena tanya mereka.

Having carefully reviewed the submissions and evidence before the Court, I find in favour of the Defendant mostly due to the fact the Plaintiff’s claim suffers from absence of documentary evidence to substantiate their claim. The absence of documentary evidence has gravely undermined the credibility of the Plaintiff’s claim and has cast a doubt on the Plaintiff’s narrative.

Based on the aforesaid reasons, considering all matters, this Court is of the view that in the absence of any concrete documentary evidence to support the Plaintiff’s claim leads the court to conclude that the Plaintiff has failed to discharge the burden of proof on a balance of probabilities. Whether the corporate veil of the 1st Defendant should be lifted to impose liability on the 2nd and 3rd Defendants 86. In respect of this issue, it was undisputed that the 2nd and 3rd Defendants are ex-directors of the 1st Defendant. Both have in their respective testimonies stated that they were not in control and did not make any decisions for and on behalf of the 1st Defendant. It was DW 1 (Sooreais Manian) the person who was in charge and in control of the 1st Defendant. DW 1 is not named as a Defendant in the instant suit.

With respect to principles governing the piercing of the corporate veil, the decision of the Federal Court in Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors [2021] MLRH 65 has provided clear instances for the corporate veil to be lifted: It clarified and held as follows : [99] The following conclusions may be drawn in relation to the disregarding of the corporate veil:

there subsists a long line of authority over the years in Malaysia which recognises that fraud, whether common law fraud or fraud in equity permits the court disregarding of the corporate personality. This body of law as adopted from the United Kingdom takes its line of reasoning from the 'fraud unravels all' principle as expounded by Denning LJ in Lazarus v. Beasley. That body of law remains correct and relevant and ought not to be lightly tampered with. It is reflective of the position in law recognised in Salomon v. Salomon. It is moreover, with respect, entirely legally coherent because the theoretical concept of the separate corporate personality was founded to enable business to be conducted. It is the essence of incorporation that the shareholder/controller of the company limits his liability in respect of the future conduct of the company's affairs. There is nothing wrong with that. Advantage is taken of limited liability to avoid personal liability if things go wrong (see Persad v. Singh per Lord Neuberger [2017] UKPC 32). However, the limitation of liability envisages that such future conduct of the company's business is to be conducted honestly and with integrity - the law is predicated on that assumption. Once honesty is abandoned and the company is utilised as a vehicle for dishonest conduct, or fraud, or unconscionable conduct, then the basis for the separate corporate personality is jeopardised and undermined. It no longer serves the purpose it was intended for. As such it is only correct that a court investigating the injury or loss suffered by reason of the wrongful utilisation of the corporate personality, or the abuse of the corporate personality, is allowed to both look behind the facade to ascertain the true facts and also impose liability against the persons perpetrating such wrongdoing as is required on the facts of a particular case. This body of law relating to fraud subsists outside of the doctrine of 'piercing' the corporate veil as explained in Pres t; [Emphasis added]

On the facts of this case it is to be noted that there is no prayer in the Statement of Claim for lifting the corporate veil of the 1st Defendant in order to make the directors accountable. There is no averment that the 2nd and 3rd Defendants were the alter ego or controlling mind of the 1st Defendant. The Plaintiff has not pleaded any fraud, concealment of material fact or evasion by these two ex directors. There is no such averment of fraud that would justify lifting the corporate veil of the 1st Defendant. The pleadings make no mention nor reference to any misconduct by the 2nd and 3rd Defendants. It is an undisputed fact that the 2nd and 3rd Defendants had never met nor dealt with PW 3. No letters of demand were ever issued to the 2nd, 3rd and 4th Defendants. These individuals did not sign any guarantee letters to guarantee the sums allegedly owed to the Plaintiff.

The Plaintiff merely named them as a party without demonstrating their personal roles in any wrongdoing. There were no averments or specific allegations of wrongdoing justifying the lifting of the corporate veil.

The findings of the police based on the police report lodged by PW 3 made it conclusive that no wrongdoing could be attributed to these two defendants. The KEPUTUSAN PENYIASATAN KES confirms as follows: “….Setelah dilihat dan diteliti segala maklumat yang diberikan pihak Tuan dan pihak-pihak terlibat, Yang Arif Pendakwa Raya membuat keputusan tiada keterangan prima facie bagi kesalahan penipuan atau kesalahan jenayah lain…”

PW 4 the police officer in charge of the investigation testified that the case was classified as NFA (No Further Action).

Looking at the evidence adduced, this Court is of the considered view that there is absolutely no justification to lift the corporate veil as sought by the Plaintiff. The Letter of Settlement Proposal 93. The Plaintiff relied on the Letter of Settlement proposal to argue that the 1st Defendant acknowledged that it owed the sums of money to the Plaintiff.

I agree with the Defendants’ submissions that the said letter was marked as “without prejudice” and was never forwarded to the Plaintiff. Moreover, the Plaintiff never responded to the said letter. PW 3 in his testimony was also unsure whether he received this letter via email or post. DW 1 testified he handed this letter to the police who were investigating the matter at the material time.

In any event a careful reading of this letter makes it abundantly clear that the offer is conditional upon terms, hence it should not be seen as an acknowledgement of debt owed. In the said letter the 1st Defendant agreed to settle the matter but subject to the Plaintiff providing the weighbridge and kong card. This was also the reason why the cheques issued by the 1st Defendant were stopped as the Plaintiff had failed to forward the supporting documents for their invoices. The evidence adduced showed that the 1st Defendant would only pay the Plaintiff based on invoices forwarded to them. The absence of these supporting documentary evidence is extremely glaring. Notably without those supporting documents, there was nothing to show that the 1st Defendant owed any sums of money to the Plaintiff.

Drawing on the principle established in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] CLJU 119 that “For myself, I rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it…” I therefore cannot place any weight on the evidence of the Plaintiff’s witnesses without proof of supporting documents. Conclusion 97. This Court has carefully weighed both the oral and documentary evidence adduced by all parties and scrutinised all the documents tendered and relied upon by the parties. The written submissions and the authorities cited by learned counsel were also considered. In considering the evidence as a whole especially the evidence of all the Plaintiff's witnesses vis-a-vis the pleadings, and that of the Defendants, it is the considered view of this Court that the Plaintiff had failed to prove his pleaded case on a balance of probabilities against the Defendants.

In the circumstance the Plaintiff’s claim against the Defendants is dismissed with costs. Dated 1 July 2025 (JULIE LACK) JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN (SELANGOR) Counsel for the Plaintif : Revathi Kannan (Messrs Ambbi Balakrishnan & Associates) Counsel for the Defendants : Indran A/LKM Karuppiah (Messrs Indran K, C Jacob &