Shahjahaan Prem Bin Abdullah v 1. Abdul Malek Bin Mohammed Ismail (BA-23NCVC-3-1/2021)

ABDUL MALEK BIN MOHAMMED ISMAIL (NO. K/P: 741119-10-5191) (Pengarah NINESTARS WORLWIDE (M) SDN BHD NO. SYARIKAT : 585959-K – Syarikat yang telah dibubarkan)

PATHMAGANIA A/P R.M. IBRAHIM (No. K/P: 511204-10-5838) (Pengarah NINESTARS WORLDWIDE (M) SDN BHD – Syarikat yang telah dibubarkan)

3.

ZAIRA HARYANTI BINTI ZAKARIAH DEFENDAN-DEFENDAN

The Defendants apply vide enclosures 84 and 86 to amend their Defence and Counterclaim, and to also add four new parties to their counterclaim, in addition to the Plaintiff. 2 Background facts

The suit of the Plaintiff against the Defendants is founded on causes of action of conspiracy, fraud and misrepresentation. The facts giving rise to the present suit, evident from the Statement of Claim, are as follows.

The Plaintiff is the sole proprietor of a business named IQP Solutions, whose business is in consultancy, training and manpower management in wielding related fields. The 1st, 2nd and 3rd Defendants are related and also business associates, whilst the 4th Defendant is the wife of the 1st Defendant and at the material time, practising in the firm of Gengeswary Kengkayah & Co.

The 1st Defendant approached the Plaintiff to propose that IQP Solutions be involved in a commercial arrangement relating to oil manufacturing and exporting, between a company known as SKI Ingenious Sdn Bhd (“SKI”) and 3rd Defendant. On the assurance given by the 1st Defendant that he will closely supervise the business transactions, the Plaintiff agreed to the arrangement.

5.

In April 2018, an amount of RM 1,063,412.90 was paid by SKI to IQP Solutions’ account with Maybank. 3

The business arrangement proceeded smoothly until sometime in October 2018 when the Plaintiff and IQP Solutions were sued by SKI for the return of RM 783,384.15. The suit was filed in the Shah Alam Sessions Court vide Suit No: BA-A52NCC-417-10/2018 (“Suit 417”) premised on breach of contract.

Plaintiff then directed the 1st Defendant to settle the dispute which led to the suit being filed as he did not want the suit to jeopardise the business of IQP Solutions. The 1st Defendant responded by assuring the Plaintiff that his wife, the 4th Defendant, would defend him in the suit filed.

The Plaintiff alleged that notwithstanding the representation of the 1st Defendant, he was never contacted by the 4th Defendant in respect of his defence nor preparation for trial.

The Plaintiff further alleged that he subsequently discovered the business arrangement into which he was persuaded to be involved was tainted and the Defendants had in fact conspired to act to his detriment. Following this discovery, he took steps to terminate the engagement of the 4th Defendant on 4.9.2019 and to personally represent himself in the proceedings.

On 12.10.2019, the Plaintiff acting on his own, entered into a consent judgment with SKI for the amount of RM 783,384.15. He did so in order to bring a conclusion to Suit 417 and also in view of the unfortunate circumstances he found himself to be in. 4

The Plaintiff contends that the entire business arrangement to which his business IQP Solutions was misled to be involved was as a result of fraud, conspiracy and misrepresentation on the part of the Defendants. Details of such allegations are pleaded in the Statement of Claim filed here.

In respect of the 4th Defendant, the Plaintiff has specifically pleaded professional negligence against her in the conduct of Suit 417 on behalf of the Plaintiff and IQP Solutions.

The Plaintiff has sought for the refund of RM 783,384.15, as well as general, aggravated and exemplary damages against all the Defendants.

The Defendants responded to the claim against them by filing a lengthy Defence and Counterclaim on 22.7.2020, comprising of 127 paragraphs. The Defence is essentially the Defendants’ version of the entire business arrangement agreed to between the parties, and denying strenuously the allegations of the Plaintiff.

The 1st and 4th Defendants also pleaded a counterclaim against the Plaintiff, alleging that the letter of 4.9.2019 which the Plaintiff sent to the firm of Gengeswary Kengkayah & Co. in which the 4th Defendant was practicing, contained defamatory statements against both the Defendants. The said letter alleged inter alia, unprofessional and improper conduct on the part of the 4th Defendant. The Defendants also rely on the contents of another letter written by the Plaintiff dated 20.9.2019, the import of which was also alleged to be defamatory. The impugned statements have 5 been set out in the Counterclaim. Both the 1st and 4th Defendants sought for reliefs in the nature of damages and an apology.

It needs to be mentioned here that the present suit was originally filed in the Sessions Court and registered as BA-B52-3-01/2020. On 2.12.2020, the High Court issued an order for this suit to be transferred to the High Court, resulting in the suit now registered as a High Court suit. The applications

Notwithstanding the earlier Defence and Counterclaim filed, the Defendants now wish to amend their pleading, and to cite additional parties in their Counterclaim.

The paragraphs which the Defendants wish to amend are paragraphs 35 of the Defence and paragraphs 109, 110, 126 and 127 of the Counterclaim.

The Plaintiff objects to the proposed amendments on the grounds that the Defendants’ amendment application lacks bona fide, was not filed promptly and would change the suit from one character to another. Analysis and decision of this court

I shall first deal with the issue of the proposed amendments. 6

The relevant provision governing the amendment of pleadings is as follows, Amendment of writ or pleading with leave (O. 20, r. 5)

(1) Subject to Order 15, rules 6, 6A, 7 and 8 and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such a manner, if any, as it may direct.

Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of the issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so.

An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.

An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the writ or the making of the counterclaim, as the case may be, he might have sued.

An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause 7 of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

The law pertaining to amendment of pleadings is trite. Amendments are to be allowed if the application is made bona fide, if no prejudice results which cannot be compensated by costs and if the amendments do not turn the suit of one character into another which is inconsistent. (See: Yamaha Motors Co Ltd v Yamaha (M) Sdn Bhd & Ors [1980] 1 MLJ 213, Khairy Jamaluddin v Dato’ Seri Anwar Ibrahim [2015] 3 CLJ 1062, FC.)

The proposed amendments in paragraph 35 are to mention four additional persons alleged to have conspired with the Plaintiff to injure the Defendants, namely Puan Soon Sock Khoon, (the director of SKI), SKI, Mr Mahendra Mahson and Ms Enoveetha Bhaskaran, both of whom are now representing the Plaintiff. In addition, the Defendants now propose to plead particulars of the conspiracy on the part of these persons mentioned. These particulars would in fact benefit the Plaintiff as they serve to notify the Plaintiff as to the evidence he would be required to adduce to rebut the allegations.

The proposed amendments in paragraphs 109 and 110 is to again mention Puan Soon Sock Khoon, the director of SKI, Mr Mahendra Maheson and Ms Enoveetha Bhaskaran and the fact of a conspiracy on their part to defraud, committed together with the Plaintiff. This allegation was premised on the fact that in Suit 417, 8 Mr Mahendra and Ms Enoveetha had acted for SKI when the consent judgment was entered between SKI and the Plaintiff. The Defendants allege conspiracy as they now act for the Plaintiff in the instant suit.

The allegations of conspiracy on the part of the Plaintiff had been the general tenor of the Defence and Counterclaim. The proposed amendments merely cite four additional persons in addition to pleading specific instances of what the Defendants allege to be conspiracy by these persons.

The amendments to paragraphs 126 and 127 of the Counterclaim are to amend the reliefs to include reliefs against Puan Soon Sock Khoon, SKI, Mr Mahendra Maheson and Ms Enoveetha Bhaskaran in view of the allegations of conspiracy to defraud.

Having considered the proposed amendments I do not find that they turn the suit from one character into another inconsistent character so as to offend the principles laid down in Yamaha Motor (supra). The claim of conspiracy was originally pleaded. The amendments are to plead the same cause of action against four other persons, stating further facts supporting the cause of action.

The contention of delay by the Plaintiff, relying on several decided authorities, is without merit. The Defence and Counterclaim was filed on 22.7.2020 when the matter was still in the Sessions Court. Due to its transfer to the High Court, and the various interlocutory applications, this case has not been set down for trial. The filing of 9 the application to amend has not occasioned any real inconvenience.

Finally, the contention that the application was made mala fides is without any cogent basis. The lack of bona fides would require more supporting evidence beyond the fact that the pleadings had long been closed in 2020, or that a new cause of action is now being introduced. On the other hand, the conspiracy to defraud cause of action sought to be introduced in the counterclaim is not new, it is only to add four additional persons mentioned. This brings me to the application to add new parties.

Order 15 r 3 of the Rules of Court 2012 allows a counterclaim to be made against parties other than the plaintiff. The relevant provision states, Counterclaim against additional parties (O. 15, r. 3)

(1) Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject matter of the action, then, subject to rule 5(2), he may join that other person as a party against whom the counterclaim is made.

Where a defendant joins a person as a party against whom he makes a counterclaim, he shall add that person’s name to the title of the action and serve on him a copy of the counterclaim; and a person on whom a copy of a counterclaim is served under this paragraph shall, if he is not already a party to the action, become a party to it as from the time of 10 service with the same rights in respect of his defence to the counterclaim and otherwise as if he had been sued in the ordinary way by the party making the counterclaim.

However, as the Counterclaim filed earlier was only against the Plaintiff and no other person, the present application seeks leave of the court to add additional parties as defendants in the Counterclaim by resorting to the following Rules of Court 2012, Misjoinder and non-joinder of parties (O. 15, r. 6)

(1) A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application—

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

order any of the following persons to be added as a party, namely—

any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or 11 relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

A plaintiff (including a defendant bringing a counterclaim) is prima facie entitled to sue any person he chooses. (See: Malaysian Civil Procedure 2021, Volume 1 page 176, para 15/6/7). In Tajul Ariffin bin Mustafa v Heng Cheng Hong [1993] 2 MLJ 143, the Supreme Court held that the court is conferred with a wide discretion to add parties to existing proceedings. It also laid down the following principles in the exercise of the discretion, …we consider that the following general principles as to parties may be distilled from the rules of court and the authorities thereon.

The principle of overriding importance is that all necessary and proper parties, but no others, should be before the court at the same time to enable the effectual and complete determination and adjudication to be made by the court of all questions and issues between the parties which arise for decision. (See O 15 rr 4 and 6 of the RHC.)

To this end, no action will be defeated by reason of mere mis-joinder or non-joinder of any party which is capable of being remedied and is no defence. (See Abonloff v Oppenheimer. 10) The joinder of parties is permitted as of right in a wide area of circumstances or otherwise with the leave of the court. (See O 15 r 4 of the RHC.) 12

Additionally, the court has extensive discretionary powers – to add, substitute or strike out parties who are not proper or necessary, and for these purposes the court may even act of its own motion. (See O 15 r 6 of the RHC.)

Generally, in common law and chancery matters, a plaintiff who considers that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone and he cannot be forced to pursue his remedy against other persons who he has no wish to sue. (See Per Wynn-Perry J in Dollfus Mieg et Compagnie SA v Bank of England 11.)

Nevertheless, a person who is not a party may be added as a defendant over the objections of the plaintiff on his own intervention or upon the application of the defendant or in some cases by the court of its own motion. (See 1 Supreme Court Practice (1991) at p 193 para 15/6/71.)

But, a defendant against whom no relief is sought by the plaintiff will generally not be added against the wishes of the latter. (See Hood-Bars v Frampton & Co. 12) A third party notice is in such a case usually the proper procedure to adopt though such a defendant can be added in a proper case. (See Dollfus Mieg et Compagnie SA v Bank of England. 11)

Although in the above cited case a co-defendant was sought to be added on the application of the defendant, unlike the case here where the application is made by a plaintiff in a counterclaim to bring in additional Defendants, the principles are nonetheless applicable. 13

The objective of para 2(b)(ii) of Order 15 rule 6 is firstly, to prevent multiplicity of proceedings and to enable the court to determine disputes between all parties to them in one action; and secondly to prevent the same or substantially the same questions or issues being tried all over again with possibly different results (See: Tajul Ariffin bin Mustafa v Heng Cheng Hong [1993] 2 MLJ 143).

There were also specific allegations pleaded against all the four parties from the proposed amendments to the Defence and Counterclaim. It would be expedient for them to be included in the Counterclaim this suit and have the disputes determined together with the main action.

There are also specific reliefs sought against the proposed four new parties, pleaded in paragraphs 127 and 128 of the proposed amended Counterclaim. As the allegations against them arise from the same facts pleaded against the existing Defendant in the Counterclaim, I consider it expedient for them to be added as a co-Defendants and the issues arising therefrom to be determined in the same action.

I would add here that the merits of the Counterclaim is not a consideration in deciding these two applications. If the proposed additional Defendants feel that the claim against them ought not to be brought, then their recourse is in some other proceeding to be brought after they have been added as parties. 14

For the foregoing reasons, the applications to amend and to add new parties in enclosures 84 and 86 respectively are allowed. Costs of both the applications are ordered to be costs in the cause. Dated : 14th February 2022. …………-sgd-…….… Alice Loke Yee Ching Judicial Commissioner High Court of Malaya at Shah Alam Counsel for the Plaintiff : Mr. Mahendra Maheson (Ms Enoveetha Bhaskaran and Ms Anne Malarvani with him) Tetuan Sree Harry & Co Counsel for the Defendant : Ms. Zaira Hariyanti binti Zakariah