Pushpamalar A/P Janarthanan v Jaswinder Singh Bajaj (WA-22NCC-597-08/2023)

AND JASWINDER SINGH BAJAJ (Passport No.: E2620569E) … FIRST DEFENDANT

BAJAJ GURPREET SINGH (Passport No.: E3963686E) … SECOND DEFENDANT

GURSHARN KAUR … THIRD DEFENDANT

GOLDEN STAR ENTERPRISES (PVT) LTD … FOURTH DEFENDANT GROUNDS OF JUDGMENT (Enclosure 51 — Application to Strike Out) A. INTRODUCTION [1] This is the Court’s decision on the application by the First, Second and Third Defendants (“the Applicants”) vide Enclosure 51 to strike out the Plaintiff’s Writ of Summons and Statement of Claim dated 18.08.2023 pursuant to Order 18 rule 19(1)(b) and/or (d) of the Rules of Court 2012 and the inherent jurisdiction of this Court. [2] The Applicants contend that the Plaintiff’s suit is frivolous, vexatious and an abuse of the process of this Court on two principal grounds. First, that the claim is plainly and obviously time-barred under section 6(1)(a) of the Limitation Act 1953, the Plaintiff having admitted in her own pleadings that she acquired knowledge of the alleged fraud in March 2014, more than nine years before the Writ was filed. Secondly, that the action is in substance an impermissible attempt to shift onto the Applicants the financial consequences of a voluntary commercial investment which did not yield the returns the Plaintiff had hoped for. [3] The questions this Court is called upon to determine are, in essence, three: i. whether the Court, on an application brought under Order 18 rule 19(1)(b) and (d), is entitled to look beyond the four corners of the Statement of Claim and receive affidavit evidence; ii. whether, on the material before the Court, it is plain and obvious that the Plaintiff’s claim is time-barred; and iii. whether the belated reliance placed by the Plaintiff on section 29(b) of the Limitation Act 1953 rescues the action from the limitation bar. [4] For the reasons which follow, this Court finds that the Applicants have made out a plain and obvious case for striking out. Enclosure 51 is accordingly allowed, the Plaintiff’s Writ and Statement of Claim are struck out, and costs are ordered in the sum of RM10,000.00. B. BACKGROUND FACTS [5] The dispute arises out of a joint venture business for the management and operation of a Sri Lankan radio station known as Varnam FM, previously known as Vetri FM. The Plaintiff and her husband, one Vengidesh a/l Ratnasamy, were introduced to the venture by the First and Second Defendants, who represented themselves as the owners of Evergreen Media Lanka (Private) Ltd, a company said to have entered into a Memorandum of Understanding with Voice of Asia (“VOA”) for the operation of the station. [6] The Plaintiff pleads that in or about April 2013 she paid a “participation fee” of USD75,000.00 into the account of the Third Defendant maintained with Alliance Bank, the Third Defendant being the wife of the First Defendant. That sum, on the Plaintiff’s pleaded case, was intended to be paid to one Roshantha Kaliyaperuma, the Chairman of VOA, as her share of a USD150,000.00 investment for the takeover of the radio station. [7] Between April 2013 and November 2014, the Plaintiff pleads that she further expended: (a) the sum of USD228,329.00 as “operational costs” channelled through her personal account in Sri Lanka into an account maintained by the Fourth Defendant, Golden Star Enterprises (Pvt) Ltd; and (b) the sum of USD10,345.00 as travel costs for visits to Sri Lanka in connection with the venture. [8] It is common ground that the relationship between the parties broke down in the course of 2014. The material fact for the present application is that the Plaintiff pleads in her Jawapan Kepada Pembelaan (Enclosure 54) at paragraph 13.1 that in March 2014 she was informed by one Ajaz Shafeek, the Chief Executive Officer of Varnam FM, that the USD75,000.00 had never been paid to Roshantha. On 04.06.2014 the Plaintiff’s husband confronted the First Defendant in a telephone conversation, an audio recording of which is exhibited in the affidavits, to the effect that the Chairman of VOA had not been paid. [9] The Plaintiff further pleads that on 23.08.2017 she received a letter from Roshantha in which he confirmed in writing that he had received no such payment. On 03.03.2019 the Plaintiff lodged a police report. On 25.03.2019, 18.04.2019 and 03.07.2023 the Plaintiff caused letters of demand to be issued through her solicitors. The Writ in the present action was filed on 18.08.2023. [10] The reliefs prayed for in the Statement of Claim comprise: (a) USD228,329.00 for operational costs; (b) USD10,345.00 for travel costs; (c) interest at 5% per annum on the aggregate sum of USD238,674.00 from 24.08.2019 to full settlement; and (d) costs. It is to be noted that the USD75,000.00 “participation fee” does not form part of the specific monetary relief sought in this action. C. THE PARTIES’ SUBMISSIONS [11] The Applicants’ submissions may be summarised as follows. The application is brought under limbs (b) and (d) of Order 18 rule 19(1) and under the inherent jurisdiction of this Court. Under those limbs, affidavit evidence is admissible and the Court is not confined to the pleadings. On the affidavit evidence, and indeed on the Plaintiff’s own pleaded case, the operative facts constituting the alleged fraud were known to the Plaintiff by March 2014 at the latest. Time therefore ran from March 2014 and expired in March 2020. The Writ was filed more than three years out of time. A claim so patently time-barred is frivolous, vexatious and an abuse of the process of the Court. [12] The Applicants further submitted that on the substantive plane the action is an impermissible attempt to shift the losses of a failed voluntary commercial investment onto the Defendants. They relied on Ocean Life Engineering v Panca Abadi Enterprise, Pan Choon Weng v Mexvin Chow and Chang Yun Tai v Dataran Mantin for the proposition that the Court will not, in the absence of an obligation to repay, rewrite commercial bargains or provide an exit mechanism for investors whose ventures have turned sour. [13] The Plaintiff, resisting the application, submitted that the Court is strictly confined to the Statement of Claim and cannot receive affidavit evidence on the limitation defence. Reliance was placed on the Court of Appeal decision in Arunakiri Nathar Krisnan v Marubeni-Itochu Steel (M) Sdn Bhd & Ors and on Tommy Thomas v Sharil. It was further submitted that the limitation period was postponed under section 29(b) of the Limitation Act 1953 because her right of action had been concealed by the Applicants’ fraud, and that time began to run only on 23.08.2017 when Roshantha’s letter was received. She relied on Lim Yoke Kong v Sivaparan Sabapathy and AmBank (M) Bhd v Abdul Aziz bin Hassan in that regard. On the merits, she relied on Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd and Berjaya Times Square v M-Concept for the proposition that there is a right of restitution in quasi-contract where there has been a total failure of consideration. D. ISSUES FOR DETERMINATION [14] This Court, having considered the pleadings and the submissions of both parties, identifies the following issues for determination: i. Whether, on an application brought under Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012, this Court is entitled to look beyond the Statement of Claim and receive affidavit evidence concerning the defence of limitation; ii. Whether it is plain and obvious, on the pleadings and on the affidavit evidence, that the Plaintiff’s claim is time-barred under section 6(1)(a) of the Limitation Act 1953; and iii. Whether the Plaintiff can, on the material before the Court, avail herself of section 29(b) of the Limitation Act 1953 so as to postpone the running of the limitation period.

(I) THE TEST FOR STRIKING OUT [15] Order 18 rule 19(1) of the Rules of Court 2012 empowers this Court, at any stage of the proceedings, to strike out or amend any pleading or the endorsement of any Writ on the ground that: “(a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [16] Sub-rule (2) of Order 18 rule 19 provides that no evidence shall be admissible on an application under paragraph (1)(a). By necessary implication, evidence by way of affidavit is admissible on an application brought under limbs (b), (c) and (d). This is a matter of settled procedure and requires no elaborate exposition. [17] The governing principles were laid down by the Supreme Court in Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Berhad [1993] 3 MLJ 36. The power to strike out is to be exercised only in plain and obvious cases where a claim is on the face of it obviously unsustainable. The summary procedure is not to be resorted to where the issue of law requires lengthy argument and mature consideration, nor where there are issues of fact requiring the taking of oral evidence at trial. [18] That principle, salutary as it is, does not shut the door on striking out in every case in which some factual controversy may be discerned. Where a plaintiff’s own pleadings contain admissions which are dispositive of the action, or where the affidavit evidence discloses an insurmountable legal bar such as limitation, the case may properly be characterised as plain and obvious.

THE LIMITATION ACT 1953 [19] Section 6(1)(a) of the Limitation Act 1953 provides as follows: “Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say — (a) actions founded on a contract or on tort …”. [20] The Court of Appeal in AmBank (M) Bhd v Abdul Aziz bin Hassan & Ors [2010] 3 MLJ 784 held that section 6(1)(a) operates as an absolute bar and that the Court has no power to extend the limitation period beyond what Parliament has prescribed. The limitation period in a claim in tort runs from the date the plaintiff suffers damage, and the date of discovery of that damage is relevant only where the cause of action is founded on fraud or fraudulent concealment within the meaning of section 29 of the Act. [21] Section 29 of the Limitation Act 1953 provides, so far as material: “Where, in the case of any action for which a period of limitation is prescribed by this Act, either — (a) the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.” [22] The section is, on any view, an equitable provision intended to protect a plaintiff who is genuinely ignorant of his right of action by reason of the defendant’s fraud or concealment. It is not, however, a licence for a plaintiff who is already possessed of the operative facts to postpone the accrual of the cause of action by awaiting confirmatory documentation. The statutory language is clear: time runs from when the plaintiff has discovered the fraud, or could with reasonable diligence have done so. F. ANALYSIS AND FINDINGS

(I) BURDEN AND STANDARD OF PROOF [23] The burden of establishing that the Plaintiff’s claim ought to be struck out lies on the Applicants. The standard is the ordinary civil standard, namely proof on the balance of probabilities, as explained by Denning J in Miller v Minister of Pensions [1947] 2 All ER 372. The Applicants must satisfy this Court that it is plain and obvious, and not merely arguable, that the pleaded claim cannot succeed.

ISSUE 1 — WHETHER THE COURT MAY RECEIVE AFFIDAVIT EVIDENCE [24] The Plaintiff’s reliance on Arunakiri Nathar Krisnan v Marubeni-Itochu Steel (M) Sdn Bhd & Ors and Tommy Thomas v Sharil for the proposition that the Court is confined to the four corners of the Statement of Claim is, with respect, misplaced. Those authorities address the position under Order 18 rule 19(1)(a), under which sub-rule (2) expressly excludes the reception of evidence. The present application is brought under limbs (b) and (d), to which that prohibition does not apply. [25] This Court is fortified in that view by the decision of the Court of Appeal in Tan Wei Hong v Malaysia Airlines System Bhd, which stands for the proposition that on an application under Order 18 rule 19(1)(d) the Court is not confined to the pleadings and may consider affidavit evidence relating to the issues in the case. The distinction drawn by the Plaintiff is one without a difference. This Court accordingly holds that it is entitled to, and shall, consider both the pleadings and the affidavit evidence in disposing of Enclosure 51.

ISSUE 2 — WHETHER THE CLAIM IS PLAINLY TIME-BARRED [26] The operational and travel expenses which the Plaintiff seeks to recover were, on her own pleaded case, incurred between April 2013 and November 2014. Applying section 6(1)(a) of the Limitation Act 1953 without more, the six-year limitation period would have expired by November 2020 at the latest. The Writ was filed on 18.08.2023, some two years and nine months out of time on that measure. [27] The Plaintiff’s answer to that is to invoke section 29(b) and to say that time did not begin to run until she received Roshantha’s letter dated 23.08.2017. This Court is unable to accept that submission for the reasons that follow. [28] The Plaintiff’s own pleading, in paragraph 13.1 of her Jawapan Kepada Pembelaan filed as Enclosure 54, contains the following admission: “Pada bulan Mac 2014, Plaintif mengetahui daripada CEO Varnam FM, En. Ajaz Shafeek bahawa memang pelaburan USD75,000 tidak pernah dibayar kepada Pengerusi VOA iaitu En. Roshantha.” [29] That admission is not qualified. The Plaintiff further explains in the same pleading that she did not commence legal proceedings in 2014 only because she had not then obtained written confirmation of the non-payment. The knowledge she had in March 2014 was, on her own averment, knowledge of precisely the matter which forms the substratum of the fraud she now alleges. [30] That admission is corroborated by contemporaneous conduct. The audio transcript of the telephone conversation of 04.06.2014, exhibited in the affidavits, records the Plaintiff’s husband expressly accusing the First Defendant of not having paid the Chairman of VOA. That confrontation could not have taken place had the Plaintiff not, by then, been possessed of the operative facts. [31] The law is clear that under section 29 of the Limitation Act 1953 time begins to run once the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. As the Court of Appeal explained in Tung Kean Hin v Yuen Heng Phong, the cause of action arises upon the discovery of the facts constituting the fraud. The section does not require documentary perfection or written confirmation before time begins to run. The Plaintiff having acquired actual knowledge of the operative facts in March 2014, the limitation period commenced then and expired in March 2020. [32] This Court also has regard to section 29 in its own terms. Section 29 speaks in the alternative: time does not run until the plaintiff has discovered the fraud, “or could with reasonable diligence have discovered it”. Even were the Plaintiff to persuade this Court that the March 2014 conversation did not amount to “discovery” in the strict sense — a submission this Court does not accept — the same conversation must, at the very least, have put her on such notice as to require the exercise of reasonable diligence. Reasonable diligence, exercised in 2014, would have led to precisely the same confirmation which she says she received in 2017. [33] The submission that time ran only from 23.08.2017 is, in these circumstances, an afterthought. It is in this Court’s view an attempt to elevate a confirmatory document into the trigger for a limitation period which had, on any proper view of section 29, already commenced three years earlier.

ISSUE 3 — SECTION 29(B): ALTERNATIVE FINDINGS [34] This Court has thus far reasoned on the footing that discovery within the meaning of section 29(b) took place in March 2014. Anticipating any suggestion that the point turns on a fine question of fact best resolved at trial, this Court records the following alternative findings, so that the conclusion reached does not stand or fall on any single date. [35] First alternative. Even assuming, contrary to the finding above, that the March 2014 conversation with Mr Ajaz Shafeek did not, standing alone, constitute discovery of the fraud, the events of 2014 as a whole did. The Plaintiff pleads at paragraphs 14 and 15 of her Statement of Claim that following her enquiries she was locked out of the business, prevented from contacting Roshantha and Mr Ajaz Shafeek, denied access to the bank accounts of Varnam FM and Golden Star, and had her repeated demands for the return of her investment ignored altogether. Those pleaded facts, taken together with the March 2014 conversation and the June 2014 confrontation, could not sensibly postpone discovery beyond the end of 2014. [36] Second alternative. Even were this Court to accept — which it does not — that the Plaintiff had acquired only such knowledge as put her on inquiry rather than actual discovery, the limb of section 29 which speaks of what could with reasonable diligence have been discovered is engaged. Reasonable diligence in 2014, upon being told by the CEO that the money had not reached its destination, would have required no more than the very step which the Plaintiff eventually took in 2017, namely communication with Roshantha. Time would then have run from a date in 2014 or, at the outer edge, shortly thereafter. [37] Third alternative. This Court records for completeness that even if, contrary to the findings above, the operative date were fixed at 23.08.2017, that would displace only the earliest of the Applicants’ submissions. It would not touch the alternative and independent characterisation of the action as an abuse of process, to which this Court now turns.

(V) ABUSE OF PROCESS [38] A claim commenced plainly outside the limitation period is not merely weak; it is an abuse of the process of the Court and is liable to be struck out in limine. This Court is guided by the High Court in Tan Sri Dato’ Eric Chia Eng Hock v NKK Corporation (Japan), which held that a claim clearly out of time is frivolous, vexatious and an abuse of process, and by the Federal Court in Tio Chee Hing & Ors v Government of Sabah, which affirmed that approach. [39] There is a further and related feature of this action which reinforces that characterisation. The Plaintiff pleads, at paragraphs 9(b) and 10 of the Statement of Claim, that she was induced by the Applicants to inject operational funds on the representation that the venture was self-financing. She was, on any view, an active participant in the venture between April 2013 and November 2014. The venture did not yield the returns she had hoped for. This Court respectfully agrees with the line of authority represented by Ocean Life Engineering v Panca Abadi Enterprise, Pan Choon Weng v Mexvin Chow and Chang Yun Tai v Dataran Mantin, to the effect that the Court will not, in the absence of an obligation to repay, provide an exit mechanism for an investor whose commercial venture has turned sour.

PLAINTIFF’S AUTHORITIES CONSIDERED [40] This Court has considered the authorities relied upon by the Plaintiff. Lim Yoke Kong v Sivaparan Sabapathy and AmBank

(M) Bhd v Abdul Aziz bin Hassan are authority for the general proposition that section 29(b) postpones the running of the limitation period where the right of action is concealed by fraud. That general proposition is not in dispute. Those authorities do not, however, assist a plaintiff whose own pleadings admit actual knowledge of the operative facts many years before Writ. [41] As for Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd and Berjaya Times Square v M-Concept, they are authorities on the substantive law of restitution for total failure of consideration. They do not, and cannot, exempt a restitutionary claim from the operation of the Limitation Act

A cause of action framed in restitution is subject to the same six-year period; whether it sounds in contract or in unjust enrichment, it accrues upon the failure of consideration and, on any tenable view, ran its course long before 18.08.2023.

AN OBSERVATION, BY WAY OF OBITER [42] By way of observation only and not forming part of this Court’s ratio: this Court notes that the USD75,000.00 participation fee, which is the fulcrum of the alleged fraudulent inducement, is not included among the specific monetary reliefs prayed for. It is not necessary for the disposal of Enclosure 51 to decide whether that feature, taken alone, renders the pleading obviously unsustainable, and this Court expressly refrains from doing so. The observation is recorded only because it is a feature of the pleading which was drawn to the Court’s attention. G. CONCLUSION AND ORDERS [43] Drawing the threads together, this Court is satisfied on the balance of probabilities that this is a plain and obvious case for striking out. The claim is patently time-barred under section 6(1)(a) of the Limitation Act 1953 upon the Plaintiff’s own admission in her pleadings that she acquired knowledge of the alleged fraud in March 2014. The belated reliance on the letter of 23.08.2017 is an afterthought which, on any tenable view of section 29 of the Act, is insufficient to postpone the commencement of the limitation period. The Plaintiff’s action is, in the language of Order 18 rule 19(1)(b) and (d), frivolous, vexatious and an abuse of the process of this Court. [44] Enclosure 51 is accordingly allowed. This Court hereby makes the following orders: a) The Plaintiff’s Writ of Summons and Statement of Claim dated 18.08.2023 are struck out as against the First, Second and Third Defendants pursuant to Order 18 rule 19(1)(b) and of the Rules of Court 2012 and the inherent jurisdiction of this Court; b) Costs in the sum of RM10,000.00 are to be paid by the Plaintiff to the First, Second and Third Defendants, subject to allocatur. H. APPRECIATION [45] This Court records its appreciation to counsel on both sides for the assistance rendered in the written and oral submissions. Dated 14hb July 2026 (MOHAMAD REDZUAN BIN IDRUS) JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT NCC 5 WILAYAH PERSEKUTUAN KUALA LUMPUR APPEARANCES For the Plaintiff: M Pani of (Messrs Pani Normala & Co. (Kuala Lumpur)) For the First, Second and Third Defendants:T Sudhar & How Xue Ying of (Messrs Adnan Sundra & Low (Kuala Lumpur)) CASES REFERRED TO:

AmBank (M) Bhd v Abdul Aziz bin Hassan & Ors [2010] 3 MLJ 784, Court of Appeal 2. Arunakiri Nathar Krisnan v Marubeni-Itochu Steel (M) Sdn Bhd & Ors, Court of Appeal [2025] 5 MLJU 1539 3. Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Berhad [1993] 3 MLJ 36, Supreme Court 4. Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd [2010] 1

Chang Yun Tai v Dataran Mantin Sdn Bhd & Ors [2011] 3 MLJ

Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 7. Lim Yoke Kong v Sivaparan Sabapathy [1992] 2 MLJ 571 8. Miller v Minister of Pensions [1947] 2 All ER 372 9. Ocean Life Engineering v Panca Abadi Enterprise & Ors [2024]

MLJU 1938 (HC) Pan Choon Weng v Mexvin Chow Yew Hoong & Ors [2023] 10

MLJ 544 (HC) Tan Sri Dato’ Eric Chia Eng Hock v NKK Corporation (Japan) [2004] 7 CLJ 137 (HC)

Tan Wei Hong v Malaysia Airlines System Bhd, Court of Appeal [2017] 4 MLJ 540 (CA)

Tio Chee Hing & Ors v Government of Sabah, Federal Court [1981] 1 MLJ 207 (FC)

Tommy Thomas @ Mohan K Thomas v. Sharil @ Shahrir Ab

Tung Kean Hin dan Tung Guat Poh sebagai wasi harta pusaka Tung Leong Geok (simati) v Yuen Heng Phong, sebagai pentadbir harta pusaka See Ngan Sang @ Lee Ngan Sang Court of Appeal [2018] MLJU 1669 (CA)

Limitation Act 1953 — section 6(1)(a); section 29 2. Rules of Court 2012 — Order 18 rule 19(1)(a), (b), (c) and (d); Order 18 rule 19(2)