Saraleana Nattaya Binti Azmi v Techna-X Berhad (WA-22NCC-22-01/2023)

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1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA (COMMERCIAL DIVISION) SUIT NO.: WA-22NCC-22-01/2023 BETWEEN SARALEANE NATTAYA BINTI AZMI [NRIC NO.: 900913-10-5186] … PLAINTIFF

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Schedule 3 (Completion Obligations) herein, the sum of RM12,500,000.00 (RINGGIT MALAYSIA TWELVE MILLION AND FIVE HUNDRED THOUSANG ONLY) shall be paid within 5 months from the Completion date”. [6] The Plaintiff contended that the Defendant had made only a partial payment of the purchase price leaving an outstanding balance of RM10,452,000.00 (The Plaintiff had orally amended her claim from RM10,602,000.00 to RM 10,452,000.00 at the trial). [7] The Plaintiff contended that the Defendant had failed to settle the balance purchase price of RM10,452,000.00 despite numerous demands to do so. The Defendant’s case [8] According to the Defendant, in late 2020, one Mr. Lim Chih Li @ Lin Zhili (DW1) was introduced to the Plaintiff by DW1’s father-in-law, Tan Sri Lee Kim Yew (“Tan Sri Lee”). Tan Sri Lee’s company, Unicorn Legendary Sdn Bhd (“Unicorn Legendary”) had already invested in Mbits, being at the material times a 25% shareholder of Mbits amounting to 10,000,000 ordinary shares. [9] Tan Sri Lee had suggested to DW1 that the Defendant, which was at the time building a business model around digital solutions and technology, to invest in Mbits. Tan Sri Lee’s intention was also that Unicorn Legendary could exit from Mbits and recover its investment. [10] The Plaintiff and her partner, one Hor Chee Leong (“HCL”) were enthusiastic about bringing in another investor as she would not only raise more capital but also would have enough capital to buy back Tan Sri Lee’s investment held through Unicorn Legendary. In other words, part of the consideration from the sale of the Plaintiff’s shares would be used to buy over Unicorn Legendary’s Mbits shares. [11] The Plaintiff represented to the Defendant that Mbits was an established telecommunications and media company that possessed the relevant licenses in the field such as NFP, NSP and CASP licences and that Mbits had a business model in the telecommunication SIM card business via a partnership with Digi called “Get Life” and a media streamlining platform called “Get Play” with what she represented as having “thousands of hours of content”. [12] In addition, Mbits also had a media production subsidiary called Zebra Studio Sdn Bhd (“Zebra Studio”) that would produce contents and had a partnership with a Hollywood CGI producer named Jae Cheol Hong for their future blockbuster movies. The Plaintiff also represented that Mbits had a subsidiary called DCC that was led by 2 experienced personalities in the media industry, one Dato Kamil Othman (current FINAS Chairman) and Raja Aznil (former film director). [13] The Defendant believed that this would be synergistic to the transformation of the Defendant from a “bricks and mortar” type of company involved in production of steel, to an “internet-of-things” type of company. The Defendant, through its subsidiaries, was already involved in the creation of mobile applications for smart city platforms and the manufacturing and supply of energy storage solutions at that material time. [14] Thus, the objective for the investment into Mbits was to expand the Defendant’s business into an area that it intended to venture into, and to buy out the 25% shares of Tan Sri Lee held through Unicorn Legendary. [15] This culminated in the SPA wherein the Defendant agreed to purchase 10,000,000 ordinary shares of Mbits from the Plaintiff amounting to 25% of the entire issued and paid-up capital of the company for the purchase consideration of RM12,500,000.00. [16] The Defendant denies liability on three (3) grounds: a) the Plaintiff has acknowledged the completion of the Defendant’s obligations under the SPA; b) the obligation to pay the outstanding amount pursuant to the SPA was assumed by a 3rd party and or was novated to one Debut Supreme Capital Sdn Bhd (“Debut Supreme”) and TAP Partners Sdn Bhd (“TAP Partners”) with the agreement of the Plaintiff; and c) in any case, the Plaintiff’s unconscionable and or dishonest conduct had disentitled her to the payment pursuant to the SPA. Court’s Considerations [17] From the outset, there was no dispute that out of the purchase consideration of RM12,500,000.00, a sum of RM2,048,000.00 had been paid to the Plaintiff, leaving the balance of RM10,452,000.00 being the subject matter of this claim. [18] In relation to the Plaintiff’s claim of RM10,452,000.00, the Defendant had adduced documentary evidence that the said sum had in fact been duly paid to the Plaintiff: (a) firstly, a sum of RM2,000,000.00 was paid by the Defendant to Debut Supreme as earnest deposit. “SHARE PURCHASE AGREEMENT IN RELATION TO THE SALE AND PURCHASE OF 10,000,000 ORDINARY SHARES EQUIVALENT TO 25% OF THE SHARE CAPITAL OF MBITS DIGITAL SDN BHD ("MBITS") DATED 8 FEBRUARY 2021 ("SPA") - EARNEST DEPOSIT Reference is made to your letter dated 19 February 2021 pertaining to the above subject matter. I hereby confirm acceptance of the Earnest Deposit of RM2,325,000 (Ringgit Malaysia: Two Million Three Hundred Twenty-Five Thousand Only) and the terms thereof as stipulated in your letter dated 19 February 2021. Please deposit the said Earnest Deposit based on the following proportion to the following nominated bank account: Name of Beneficiary: Debut Supreme MBits Digital Capital Sdn Bhd Sdn Bhd Beneficiary Bank: RHB Bank Berhad CIMB Bank Berhad Account No.: 2141 6500 0073 44 8007453053 Amount: RM2,000,000 RM325,000 RM2,325,000” The aforesaid was a letter given by the Plaintiff dated 22.2.2021 to the Defendant whereby the sum of RM2,000,000.00 was paid to Debut Supreme and a further sum of RM325,000 was paid to the Plaintiff. This letter evidenced the payment of RM2,000,000.00. (b) secondly, the sums of RM2,000,000.00 and RM4,000,000.00 were paid by TAP Partners and Debut Supreme respectively to the Plaintiff. This was evidenced by the Defendant’s letter dated 16.6.2022 for the payment of RM6,000,000.00. “SHARE PURCHASE AGREEMENT IN RELATION TO THE SALE AND PURCHASE OF 10,000,000 ORDINARY SHARES BQUIVALENT TO 25% OF THE SHARE CAPITAL OF MBITS DIGITAL SDN BHD ("MBITS") DATED & FEBRUARY 2021 ("SPA") - PARTIAL SETTLEMENT OF PUCHASE CONSIDERATION We refer to the above subject matter. We are pleased to advise that Techna-X Berhad ("TXB") has secured a loan from TAP Partners Sdn Bhd ("TAP") and Debut Supreme Sdn Bhd ("DS"). The total amount raised and to be transferred to you in satisfaction of TXB's settlement of the Purchase Consideration owing to you pursuant to the SPA shall be RM6,000,000 (Ringgit Malaysia: Six Million Only). We will direct TAP and DS to remit the following amounts to you directly: RM • TAP 2,000,000 • DS 4,000,000 6,000,000 We expect the abovesaid amount to be disbursed to you within a week from the date of this letter. Accordingly, we would appreciate if you could sign and return the Confirmation Receipt slip as attached herein to confirm the funds have been received.” (c) thirdly, the sum of RM2,452,000.00 was paid by Debut Supreme to the Plaintiff. Dear madam, SHARE PURCHASE AGREEMENT IN RELATION TO THE SALE AND PURCHASE OF 10,000,000 ORDINARY SHARES EQUIVALENT TO 25% OF THE SHARE CAPITAL OF MBITS DIGITAL SDN BHD ("MBITS") DATED 8 FEBRUARY 2021 ('SPA") - FULL SETTLEMENT OF BALANCE OF PURCHASE CONSIDERATION We refer to the above subject matter. We are pleased to advise that Techna-X Berhad ("TXB”) has secured another loan from Debut Supreme Sdn Bhd ("DS) amounting to RM2,452,000, the amount of which have been instructed to be transferred to you directly by DS in satisfaction of the balance of the Purchase Consideration of RM2,452,000 owing by TXB to you pursuant to the SPA. With the settlement of the abovementioned amount, the entire Purchase Consideration of RMI2,500,000 pursuant to the SPA shall be deemed fully paid. Please sign and return the Confirmation Receipt slip as attached herein to confirm the funds have been received.” The above was the Defendant’s letter dated 8.7.2022 which was addressed to Debut Supreme evidencing the payment of RM2,452,000.00. [19] Whilst it is true that neither the Plaintiff nor the Defendant had been able to explain satisfactorily to this Court on the dealings and the nature of the relationship between themselves and Debut Supreme and or TAP Partners, what was clear to this Court was the fact that the Plaintiff had expressly acknowledged the completion of the Defendant’s obligations under the SPA. [20] Insofar as the payment of RM 6,000,000.00 referred to above, this was what the Plaintiff said during cross examination: “MARK Yang Arif. This is the letter to you indicating that the balance RM6 million would be borne by two companies, TAP Partners and Debut Supreme, and at the next page, page 80, is your acknowledgement of the terms… I mean we already went through that this is your signature, and there is no doubt because you didn’t say… anyway… you agree that’s is you signature. And the most important line here Miss Sara is that, you say, “I also acknowledge and confirm receipt of the total of RM 6,000,000 as Settlement of the Purchase Consideration owed to me pursuant to the SPA". These are your words, Miss Sara. Sorry, I have to clarify. We did not create… we did not write this document. This document was all given to us, to sign. That’s all.” In other words, the Plaintiff did not dispute that she was given the document to sign. Her complaint was that the document was not prepared by her and that whilst the signature looked like hers, she contended for the first time at the trial that she did not sign it. [21] More specifically, the Plaintiff in signing the confirmation of receipt slip for the final payment of RM2,452,000.00 by Debut Supreme, had expressly acknowledged and confirmed that the Defendant’s obligations under the SPA had come to an end. The words used are unequivocal and clear: “CONFIRMATION RECEIPT I, Saraleana Nattaya Ninti Azmi (NRIC No.:900913-10-5186), being the Vendor of MBits Digital Sdn Bhd pursuant to the SPA, hereby acknowledge and accept the stipulations in your letter dated & July 2022. I further acknowledge and confirm receipt of the total sum of RM2,452,000 and that such amount received is deemed full and final settlement of the Purchase Consideration pursuant to the SPA. Yours faithfully, …(signed)… Saraleana Nattaya Binti Azmi NRIC No.:900913-10-5186) Date: 14 July 2022” [emphasis added] [22] The acknowledgment was given by the Plaintiff on 14.7.2022. This document was agreed by parties as a Part B document. Its authenticity was not in dispute at all. In other words, it was not the Plaintiff’s position that that her signature acknowledging that upon the receipt of the sum of RM 2,452,000.00, the SPA was deemed as fully and finally settled was forged. [23] Indeed, no police report was lodged by the Plaintiff alleging forgery of her signatures despite the documents being available to the Plaintiff since on or about 14.12.2023 (the date of filing of the Common Bundle of Documents by the Plaintiff’s solicitors). Neither did the Plaintiff plead fraud in her Amended Statement of Claim and or her Amended Reply to Defence. In fact, no amendments were made to her pleadings even after having sight of the documents. [24] It was only at the trial that the Plaintiff sought to impugn her signatures on the documents but even at this stage she was equivocal: “YA I know, the document… I mean whether the documents were given to you to sign or not, the question is, you signed the document. Yes, I understand. YA You, what you were signing. You know the content. I understand, Yang Arif. That’s why I'm saying, that this document, I said it earlier even, that it's looks like my signature, but I did not sign this document. That’s what I'm addressing here.” [25] The Plaintiff did not adduce any evidence that she had signed these documents under any duress or economic pressure at all. Being an Oxford graduate and based on this Court’s assessment of the Plaintiff, there was no doubt at all that the Plaintiff understood completely what she was signing. [26] Yet, the Plaintiff did not lodge any police report either immediately after she had signed the documents or after she had notice of the documents when the Bundles of Documents were filed and serve on the Plaintiff. “MARK Yes, Yang Arif. Now Miss Sara, this is the first time that we heard that this is not your signature and now, are you saying therefore the signature is a forgery? Yes. You're saying it’s a forgery? Yes. Did you make any police report on this signature? No, I didn’t.” [27] It was also incredulous that the Plaintiff, being an Oxford graduate, would like this Court to believe that she did not know that she could lodge a police report in respect of her alleged forged signature. “PW1 I wasn’t aware that I could make a police report for forgeries of signature. Just one more question, then did you current lawyers advise you to make a police report on this? They haven’t, but… they have, sorry. They have. But I haven’t done it, yes.” [28] In any event, even after the Plaintiff was purportedly advised by her solicitors to make a police report, the Plaintiff did not proceed to do so. Accordingly, I accepted the submission of the Defendant that the Plaintiff’s contention at the eleventh hour that her signatures were forged and or that it “…looks like my signature, but I did not sign the document…” was merely an afterthought and simply could not pass muster. [29] The legal consequence of the Plaintiff confirming that the SPA had been fully and finally settled is clear. The Court of Appeal in Chin Well Fasteners Co Sdn Bhd v Sampath Kumar Vellingiri & Ors [2006] 1 MLJ 117 held that: “The fact that the defendant's representative did not appreciate its contents when he signed it does not affect its validity. It has been held that in the absence of fraud or misrepresentation, a person is bound by a writing to which he has put his signature, whether he has read its contents or has chosen to have them unread (see L'Estrange v Graucob [1934] 2 KB 394; Serangoon Garden Estate Ltd v Marion Chye [1959] MLJ 113; Majumder v AG of Sarawak [1966] 1 MLJ 41).” [emphasis added] [30] Learned counsel for the Defendant referred to the Court of Appeal case of Ling Chee Chong & Anor v Eydel b. Abah & Others [2008] MLJU 4787, wherein the factual matrix therein are strikingly similar to the present case: “The primary complaint of the defendants before us is that the learned judge failed to judicially appreciate the totality of the evidence when arriving at her conclusion. Now, it is not in dispute that well before the action came on for trial advocates for the defendants forwarded to the advocates of the plaintiffs’ copies of all the relevant payment vouchers and acknowledgements when making disclosure of their clients’ case. Between then and the commencement of the trial none of the plaintiffs alleged that these documents, which were later produced as exhibits at the trial, were forgeries. It was only when the plaintiffs gave their evidence that the assertion was made that the vouchers evidencing payment were not signed by them. But the matter was pursued no further. No material was placed before the learned judge, for example by way of a document examiners report, suggesting that the signatures on the relevant documents were not those of the plaintiffs. In this state of affairs the learned judge ought to have cautioned herself when evaluating the plaintiffs’ evidence on the point. She ought to have asked herself whether the assertion of forgery made for the first time from the witness box ought to be given any weight at all. However nowhere in her judgment is there reference to these matters. Indeed, careful reading of her judgment reveals that there has been no proper evaluation of the evidence on the critical issue of payment. Now it is true that as a general rule this court will not interfere with findings of fact made by a trial court having audio-visual advantage. But it is equally well settled that appellate intervention will take place where the trial court has failed to judicially appreciate the evidence led before it. This is such a case. The defendants have clearly demonstrated that the learned judge failed to properly appreciate the evidential material placed before her. In supporting the learned judge's judgment, counsel for the plaintiffs has argued that the burden lay on the defendants to prove that payment had been made and not on the plaintiffs to proof the negative. That is quite correct. But in this case, the defendants produced prima facie proof of payment. The evidential burden then shifted to the plaintiffs to positively prove that the documents evidencing the payment were forgeries. Difficulty has arisen in this case by reason of the plaintiffs’ failure to appreciate the difference between the legal burden and the tactical or evidential onus in this case. Evidentially speaking, the plaintiffs had to merely assert that they had not received payment. It then fell on the defendants to prove that payment was in fact made. Once they produced documents evidencing payment the evidential or tactical onus then shifted to the plaintiffs to call positive evidence to prove that the document in question were forgeries. The point we seek to make is well brought out in the following passage in the judgment of Lord Hanworth MR in Stoney v Eastbourne Rural District Council [1927] 1 Ch 367, 397: “It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on one side or the other and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is, that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence”. In the present case there was indeed no other evidence going to disprove the truth of the relevant vouchers and acknowledgements. For the reason already given, this appeal must succeed. It is allowed. The orders of the High Court are set aside…” [emphasis added] [31] Similarly, in the present case, the Plaintiff had asserted that she had not been paid the balance sum of RM 10,452,000.00 under the SPA. In response, the Defendant had produced evidence of payments through the various letters and acknowledgments of the same by the Plaintiff herself. These documents were disclosed to the Plaintiff as far back as 5.4.2023 when they were exhibited in the Defendant’s affidavit affirmed by DW1 on 5.4.2023. There was no complaint then by the Plaintiff that her signatures were forged. It was only at the trial when the Plaintiff testified that she asserted for the first time that the signatures on the acknowledgement receipts were not hers. Yet, no material was placed before this Court by way of a document examiner’s report in support of her assertion. [32] Accordingly, the Plaintiff had not been able to discharge her evidential burden that the Defendant had not fully and finally paid her the consideration for her 10,000,000 Mbits shares under the SPA. [33] In a desperate attempt to defeat the legal consequences of her own signatures, the Plaintiff referred this Court to Clauses 3.1 and 3.2 of the SPA which stipulate that the consideration of RM12,500,000.00 would be paid to the Plaintiff within 5 months from the Completion Date. According to the Plaintiff, the variations made to the SPA were void as no consideration was given for the same. [34] In other words, what the Plaintiff sought to contend was that the strict terms of the SPA were not complied with and whatever variations to the terms of the SPA that were agreed, particularly in terms of the payment and the transfer of the Shares between the Plaintiff and the Defendant should be treated as void for failure of any consideration. [35] As alluded above, the original term of the SPA was for the purchase consideration to be paid within 5 months from the Completion Date. However, quite clearly the parties had at the very least by their conduct agreed to variation of the terms. [36] There was ample evidence to show that the variations to the SPA were agreed between the Plaintiff and Defendant: (a) the payments pursuant to the SPA were varied when the initial deposits were made even though under the SPA, there were no provisions for the same: “MARK 24. My question is that, there is no stipulation of the initial deposit to be paid to yourself, or the manner in which it's to be paid. The only stipulation is that a purchase price must be paid within 5 months. Do you agree with me? Yes. Okay. That was my point. Now, my next question on this is, would you agree with me then, that the manner in terms of payment and how you would be paid was discuss and agreed between yourself and Datuk Jared Lim? Yes.” (b) the whole of the payments of RM12,500,000.00 was to be paid to Mbits as capital injection even though Mbits itself was not a party of the SPA and was not the vendor of the Shares. Just now… correct me if I'm wrong. You did say that part of the RM12.5 million, some of it was meant to be paid into Mbits Digital Sdn. Bhd., hence the words cash injection? Hmm. Correct? The payment of RM12.5 should be to Mbits, yes. Yes. Not entirely, some of it or all of it? All of it should be to Mbits. [37] Furthermore, other variations including the deferment of the payment of the consideration as per Clauses 3.1 and 3.2 of the SPA were made: Now, would you not agree with me therefore, that this letter deferring the payment to the 31 December 2022 is an amendment of variation of the terms of the Share Purchase Agreement, because you're meant to be paid within 5 months… Correct. For completeness, the deferment of the payment was agreed by the Plaintiff during the Cross-Examination of PW1 as a variation of the terms of the Share Purchase Agreement that has transpired: Okay. He prepared this letter, just day before the announcement that he’s completed the share acquisition. So, he said, sign this and I promise to pay you at the end of the year. So, I said okay, I'll sign. That was the conversation. So now, can you answer my question? You deem that this is a variation of the terms… I agree to the terms that he gave me, to be paid at the end of the year. Okay. So, it is a change of the terms that was agreed upon with the Share Purchase Agreement? Yes. [38] As such, the terms of payment under the SPA were not a stringent one and open to variations based on subsequent discussions between the parties. In this case, the variations were made on the time of payment and as to the payee. The amounts were paid to Mbits as requested by the Plaintiff. Some of the fund was to be used as working capital and some would be used to pay or buy out Tan Sri Lee’s shares held through Unicorn Legendary: Now, isn’t true that there were discussions between yourself, Datuk Jared Lim and Tan Sri Lee Kim Yew about Tan Sri Lee exiting from your company, from Mbits Digital Sdn. Bhd. Yes. That was? That was. Thank you, thank you. And isn’t true that discussion was entailed the following points that Datuk Jared Lim would acquires shares in Mbits Digital Sdn. Bhd. and from the share proceeds that you would receive, eventually such moneys would be used to buy-out or to remove Unicorn Legendary, the company of Tan Sri Lee Kim Yew, correct? Yes. [39] In the end, it was only after the Plaintiff had acknowledged and confirmed that the purchase consideration for her shares had been fully and finally settled by the Confirmation Receipt dated 14.7.2022 that the Plaintiff executed the Form of Transfer of Securities sometime on 15.8.2022, transferring her 10,000,000 Mbits shares to the Defendant. [40] If the Plaintiff had not been paid for the Shares, there would be no reason for the Plaintiff to execute the Form of Securities in respect of her 10,000,000 Mbits shares to the Defendant at all. [41] Based on the aforesaid, the Plaintiff’s contention that the variations made to the terms of the SPA were void was rejected. [42] Further, with this Court’s determination based on the express acknowledgment by the Plaintiff, there was no need for this Court to consider the Defendant’s alternative contention that the obligation to pay the outstanding amount pursuant to the SPA was assumed by a 3rd party and or was novated to Debut Supreme and TAP Partners with the agreement of the Plaintiff. In any event, there was no evidence adduced before this Court in support of any such novation. [43] Further, this Court also found that the Defendant’s other contention that the Plaintiff had by her unconscionable and or dishonest conduct, somehow disentitled her to the payment pursuant to the SPA was not made out from the facts at all. Neither was the Defendant able to produce any case law in support to demonstrate that such ‘unconscionability’ concept would be applicable to the present facts of this case. The case of Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd & Anor [2011] 7 CLJ 442, the unconscionability concept was applied in the context of the making of a call on a performance bond. The Court of Appeal had cautioned that ‘the principle underlying the unconscionability doctrine is the prevention of oppression and unfair conduct; and because the determination of unconscionability is fact specific, court must consider such a claim on a case by case basis and assess the totality of the circumstances”. [44] Clearly, the Defendant’s reliance on alleged misrepresentations by the Plaintiff of Mbits’ financial position and her non-responses to the Defendant’s calls for meetings were far from sufficient to constitute ‘oppression’ and or ’unfair conduct’ for the application of the unconscionability concept in this case. Conclusion [45] Based on the aforesaid, it was adjudged that the Plaintiff’s claims had no merits and accordingly dismissed with costs of RM20,000.00 subject to payment of allocator. Dated the 16th day of April 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel: 1. Counsel for Plaintiff: Ms. Kemala binti Alang together with Ms. Shamsinar binti Dato' 2. Mohamed Noor - (Messrs. Balasingam & Co.) Counsel for Defendant: Mr. Mark Ho Hing Kheong together with Mr. Lim Li Huang - (Messrs. Chellam Wong) Case Reference: 1. Chin Well Fasteners Co Sdn Bhd v Sampath Kumar Vellingiri & 2. Ors [2006] 1 MLJ 117 Ling Chee Chong & Anor v Eydel b. Abah & Others [2008] MLJU 4787 3. Kejuruteraan Bintai Kindenko Sdn Bhd v Nam Fatt Construction Sdn Bhd & Anor [2011] 7 CLJ 442