ROHAIZAL BIN IDRIS v Suruhanjaya Syarikat Malaysia (SSM) (BA-24NCC-136-11/2024)

Akta Syarikat 2016; Dan Dalam Perkara Aturan 1 Kaedah 8, Aturan 7 Kaedah 2, Aturan 88 Kaedah 2, Kaedah-Kaedah Mahkamah 2012. ANTARA ROHAIZAL BIN IDRIS … PLAINTIF [NO. K/P : 740505-05-5415] DAN

PENDAFTAR SYARIKAT … DEFENDAN-SURUHANJAYA SYARIKAT MALAYSIA

HORSEDALE DEVELOPMENT BERHAD (NO. SYARIKAT : 188176-P) PETRON MALAYSIA REFINING & MARKETING … PENCELAH BHD (dahulu dikenali sebagai Esso Malaysia Berhad) (No. Syarikat : 3927-V) GROUNDS OF JUDGMENT A.

This is an application by the plaintiff to reinstate Prolander Sdn Bhd (the Company) into the Registry of the Suruhanjaya Syarikat Malaysia (SSM).

On 15 May 2025, this Court allowed the plaintiff's application. Dissatisfied with the decision, the first intervener, who became the second defendant, filed an appeal to the Court of Appeal. B.

The plaintiff's claim against the SSM is for the following order –

Bahawa nama syarikat Prolander Sdn Bhd (No. Syarikat : 2004401014022 / 652525-X) dimasukkan semula ke dalam Daftar Syarikat Defendan menurut peruntukan

(ii) Bahawa Rohaizal bin Idris (No. K/P : 740505-05-5415) dan juga Nor Azlinda binti Abdul Aziz (No. K/P : 780928- 14-5494) dikekal sebagai pengarah-pengarah di dalam syarikat tersebut;

(iii) Bahawa apa-apa perjanjian yang telah dimasuki oleh Syarikat Prolander Sdn Bhd (No. Syarikat : 2004401014022 / 652525-X) tersebut dengan mana-mana pIhak adalah sah dan masih berkuatkuasa khususunya Perjanjian Pajakan bertarikh 5.7.2005 dan 24.4.2007 yang telah dimasuki dengan Horsedale Development Berhad;

(iv) Bahawa apa-apa perjanjian yang telah dimasuki oleh Syarikat Prolander Sdn Bhd (No. Syarikat : 2004401014022 / 652525-X) tersebut dengan mana-mana pihak adalah sah dan masih berkuatkuasa khususnya Perjanjian Pajakan Kecil bertarikh 24.07.2006 dan 7.12.2007 yang telah dimasuki dengan Petron Malaysia Refining & Marketing Berhad (dahulunya dikenali sebagai Esso Malaysia Berhad); dan

Bahawa kos permohonan ini dibayar oleh plaintif; dan

(vi) Perintah-perintah lanjut yang dirasakan suaimanfaat oleh Mahkamah yang Mulia ini. C. SALIENT FACTS

The Company was incorporated on 17 May 2004. The plaintiff and his wife were the original shareholders and directors of the Company.

On 5 July 2005, the Company entered into a Lease Agreement for a term of 30 years for a land held under Geran 61763, Lot 61712, Bandar Glenmarie, District of Petaling, Selangor (the Klang Lease) with Horsedale.

On 24 July 2006, a Sub Lease Agreement for a term of 30 years was entered into by the Company with Esso Malaysia Berhad, now known as Petron Malaysia Refining & Marketing Berhad (Petron), under the Klang Lease (Klang Sub-Lease).

Subsequently, on 24 April 2007, the Company entered into another Lease Agreement with Horsedale for the term of 30 years for a land held under Geran No. 61765 Lot No. 61714, Bandar Glenmarie, District of Petaling, Selangor (the KL Lease). The Company also entered into another Sub-Lease Agreement for the term of 30 years under the KL Lease Agreement with Petron (KL Sub-Lease).

In managing the project related to the lease of land owned by the second defendant, the plaintiff sold his shares to raise additional capital. However, the plaintiff remained as a director.

On 16 September 2022, the Company's name was struck off from the SSM Register following the Registrar's application because it was no longer in operation, as shown in Warta Kerajaan No. 22881 in Exhibit R1-5 of the supporting affidavit.

Consequently, Horsedale initiated legal proceedings against the Company, its other former directors, including the plaintiff and Petron, in Shah Alam High Court Suit No. BA-24NCVC-761-04/2023 (Suit 761). Horsedale seeks a declaration that the Lease Agreement under Klang Lease and KL Lease are no longer enforceable due to the striking off of the Company from the SSM register, and that the Sub Lease Agreements between the Company and Petron should also be terminated and no longer enforceable.

On 16 January 2025, Petron Malaysia Refining & Marketing Bhd (formerly known as Esso Malaysia Berhad) filed an application to intervene in the proceeding herein.

On 17 January 2025, Horsedale Development Berhad also sought leave to intervene in this Suit and be added as the second defendant.

Both applications to intervene are allowed by this Court. D.

The reinstatement of a company whose registration has been struck off is governed by section 555 of the Companies Act 2016 (Act 777).

Section 555 of the Act 777 states as follows –

Any person who is aggrieved by the decision of the Registrar to strike off the company may, within seven years after the name of the company has been struck off, apply to the Court to reinstate the name of the company into the register.

If the Court is satisfied that the company was at the time of the striking off, carrying on business or in operation or otherwise that it is just that the name of the company be reinstated in the register, the Court may order that –

the name of the company be reinstated; and

give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off.

Upon an office copy of the order is lodged with the Registrar, the company shall be deemed to have continued in existence as if its name hand not been struck off. E. ISSUES TO BE DECIDED

The relevant issues to be decided are as follows –

Whether the plaintiff is the aggrieved person by the decision of the Register to strike off the Company.

(ii) Whether at the time of the striking off, the Company is carrying on business or in operation.

(iii) Whether it is just that the Company be reinstated into the register of SSM. F. ANALYSIS AND DECISION

This Court is empowered to allow the reinstatement of the company’s name under section 555 of the Act 777.

In Greenlinix Sdn Bhd & Anor v Suruhanjaya Syarikat Malaysia [2012] 7 CLJ 490, the Court held – The court is therefore vested with the discretion to order the restoration of the name of the company to the register and in so doing the court "may by the order give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off. Issue 1: Whether the plaintiff is the aggrieved person by the decision of the Register to strike off the Company

The plaintiff files Enclosure 1 within the time frame stipulated in subsection 555(1) of Act 777.

Under subsection 555(1) of the Act 777, the plaintiff must be a person aggrieved by the registrar’s decision to strike off the Company from the Register.

The plaintiff is relying on the case of Hemalatha a/p Arumugam v Springs Court Sdn Bhd & Anor [2012] MLJU 1444 to support that he is the aggrieved person.

In his supporting affidavit, the plaintiff averred that at the time the Company was struck off, the plaintiff was the director of the Company. At that material time, the Company was still operating and bound by contractual obligations with Horsedale and Petron.

On the other hand, Horsedale submitted that the plaintiff is not a person aggrieved by the decision of the registrar to strike off the Company from the register of companies.

This Court also refers to a letter dated 15.10.2008 from Lebuhraya Utara Selatan (PLUS) to the Company regarding the proposed Ingress/Egress to the petrol station at KM10.8 (Kuala Lumpur Bound) of the New Klang Valley Expressway. On page 8 of that letter, the plaintiff, on behalf of the Company, has agreed to be bound by all the terms, conditions, and undertakings imposed by

Prior to that, by way of Sub-Lease Agreement between the Company and Petron dated 24 July 2006, the Company agreed to sub-lease the land to Petron for the purpose of constructing and operating a petrol station and service station for a term of 30 years from the date of delivery of vacant possession of the land.

Preamble 1 of the Sub-Lease Agreement recognises that Horsedale is the registered owner of the land. Horsedale has agreed to lease the land measuring 5,634.76 square metres to the Company for a period of 30 years from the date when vacant possession is handed over to the Company.

I find that the plaintiff is a person affected by the first defendant’s decision, as there are still contractual obligations to be fulfilled by the Company under the lease and sub-lease agreement, which extends for a period of 30 years.

In the circumstances that the SSM does not object to the plaintiff’s application, it also provides a basis for allowing the Company to be reinstated. Issue 2: Whether at the time of the striking off, Prolander is carrying on business or in operation.

In the Affidavit in Support, the plaintiff exhibited sets of agreements related to the lease and sub-lease dating from 2006 to

It was agreed by the second defendant and the intervener that both the lease agreement and the sub-lease agreement are for 30 years each from the date of signing.

It is clear that on the date the Warta Kerajaan was gazetted, namely 16 September 2022, the Company was engaged in business and/or operations.

This Court refers to the case highlighted by the learned counsel for intervener, Tetuan Wang & Co v Suruhanjaya Syarikat Malaysia; Thiaheswary A Suppiah & Ors (Interveners) [2013] 1 LNS 200, where Justice Azizah Nawawi JC (as she then was) referred to Re Priceland Ltd [1997] BCC 207 in considering whether a company was carrying on business or in operation: [14] The next issue is whether at the time of the dissolution, the company was carrying on business or in operation or otherwise that it is just that the name of the company be restored to the register. With regards to the words “carrying on business or in operation” in s. 308(5), Laddie J in Re Priceland Ltd held at page 210/G: “It seems to me that the purpose of the section is to give the court the widest possible powers to restore. The words ‘carrying on business or in operation’ in s. 653(2) should be read together and in light of that purpose. What the section is directing the court to do is to look back at the time of the dissolution. If, at that time, the company was dormant, this particular avenue for giving jurisdiction to the court is not made out. On the other hand, if the company was carrying on any activity at all, then the court’s power to restore is brought into play.

Guided by the above principle, in my view, this Court ought to adopt a liberal approach in determining the meaning of in operation insofar as subsection 555(2) of the Act 777 is concerned.

The Company's involvement in a 30-year contractual obligation under the lease and sub-lease agreements clearly indicates that it is still operational and engaged in business activities.

I have also considered the stance adopted by the first defendant and the interveners. Neither of them objected to the plaintiff’s application to reinstate the company. Issue 3: Whether it is just that the Company be reinstated into the register of SSM.

The learned counsel for the plaintiff contended that it is just for this Court to restore and reinstate the Company. There is a pending Suit 761 filed by the second defendant against the plaintiff and the intervener, together with other co-defendants.

The learned counsel for the second defendant argued that because of the striking off of the Company from the register of companies and consequently, dissolved as at 16th September 2021 (‘the Dissolution Date’), the second defendant is entitled to and has duly terminated the Klang Lease and the KL Lease. Consequent upon the termination of the Klang Lease and the KL Lease, the Klang Sub-Lease and the KL Sub-Lease are thereby terminated and shall have no further effect save for antecedent breaches and obligations arising prior to the dissolution date.

I believe that the second defendant’s rights against the Company regarding the lease agreement have become the subject matter of Suit 761. Additionally, the plaintiff has withdrawn the relief sought in paragraphs (b), (c), and (d) of Enclosure 1.

It is my opinion that issues concerning the obligations of parties under the KL Lease, Klang Lease, including sub-lease agreements, should be addressed in Suit 761. This Court is not the appropriate forum to decide on the legality of the said agreements.

Therefore, it is just for this Court to allow the Company to be reinstated in the register of the Companies. G.

Based on the reason above, Enclosure 1 is allowed with no order as to costs. Dated: 6th August 2025. Signed ........................................................... HAZIZAH KASSIM Judicial Commissioner High Court of Malaya (NCvC10) at Shah Alam, Selangor

Bagi Pihak Plaintif : Abd Shukor bin Tokachil Tetuan Shukor & Associates (Simpang Renggam, Johor)

Bagi Pihak Defendan : Nor Syairah binti Sulaiman Suruhanjaya Syarikat Malaysia (SSM) (Wilayah Persekutuan Kuala Lumpur)

Bagi Pihak Pencelah Pertama : Haseena Elaine Kaur a/p Harjisingh & Lai Wai Fong Tetuan Shearn Delamore & Co. (Wilayah Persekutuan Kuala Lumpur)

Bagi Pihak Pencelah Kedua : Keshava Rajasekaran & Maryam Mohd Khalid Tetuan Rajasekaran (Wilayah Persekutuan Kuala Lumpur)