Sri Tharan a/l Ganesan v Mohd Shahreen Bin Mohd Jaar & 3 Yang Lain (24NCC-495-11/2016)

MOHD SHAHREEN BIN MOHD JAAR (No. K/P : 860408-33-5577)

RHB BANK BERHAD (No. Syarikat : 6171-M)

SYAHRUL ASYWAL BIN A. JALIL (No. K/P : 730227-05-5159)

KUB BUILDERS SDN BHD (No. Syarikat : 560523-H) … DEFENDAN-DEFENDAN DI HADAPAN YA KHADIJAH BINTI IDRIS PESURUHJAYA KEHAKIMAN 3 GROUNDS OF JUDGMENT Introduction [1] The Plaintiff filed Originating Summons No. WA-24NCC-495- 11/2016 dated 25 November 2016 (OS) against the First to the Fourth Defendant. Via the OS, the Plaintiff sought for the following reliefs –

suatu perintah kebenaran untuk memfailkan permohonan ini; dan

suatu perintah melepaskan (relief) Plaintif dari kesemua tanggungan dan obligasi dan atau bayaran Plaintif kepada Defendan 1 dan Defendan 2; dan atau

suatu Perintah untuk membatalkan (rescind) kandungan terma-terma Penghakiman Persetujuan bertarikh 5 Mei 2015; dan atau

suatu Perintah untuk membatalkan (rescind) kandungan terma-terma Deed of Indemnity 24 Ogos 2015; dan atau

suatu Perintah untuk membatalkan dan atau melepaskan (relief) Plaintif dari bahagian (part of) terma-terma dalam Penghakiman Persetujuan bertarikh 5 Mei 2015 dan Deed of Indemnity bertarikh 24 Ogos 2015 yang melibatkan Plaintif dalam tanggungan dan obligasi dan atau bayaran Plaintif kepada Defendan 1 dan Defendan 2; dan atau

suatu perintah kompensasi menurut budibicara Mahkamah sebanyak RM110,000.00 sebagai kos guaman kepada Plaintif ke atas tindakan 4 Defendan 1 dalam membawa dan atau memasukkan Plaintif sebagai satu Pihak dalam Penghakiman Persetujuan bertarikh 5 Mei 2015 dan Deed of Indemnity bertarikh 24 Ogos 2015; dan [2] On 1 August 2017 this court dismissed the Plaintiff’s OS in so far as the 1st Defendant is concerned. Dissatisfied with the said decision, the Plaintiff appealed. Parties [3] Plaintiff, Sri Tharan a/l Ganesan, is a contractor, and the first Third Party in a related suit which will be elaborated further below. [4] The First Defendant, Mohd Shahreen bin Mohd Jarr (1st Defendant) at all material time is a director of a company known as Nutriwira Sdn Bhd. (NSB). [5] The Second Defendant, RHB Bank Berhad (2nd Defendant) is a banking institution. [6] The Third Defendant, Syharul Asywal bin A Jalil (3rd Defendant) at all material is an employee of the 2nd Defendant. 5 [7] The Fourth Defendant, KUB Builder Sdn Bhd (4th Defendant), a private company which awarded sub-contract works to NSB. [8] The 2nd, 3rd and 4th Defendants filed applications under Order 18 rule 19 of the Rules of Court 2012 to strike out the OS (Enclosures 20, 25 and 21 respectively) and was allowed by this court. No appeal was filed by the Plaintiff against the said decision. Factual Background [9] Via a letter of offer dated 10 October 2013, the 2nd Defendant approved NSB’s application in respect of the following banking facilities –

loan facilities totaling a sum of RM1,000,000.00 as Working

loan facilities for an additional overdraft with a total credit of RM700,000.00 under the Small Medium Enterprise Scheme (Overdraft Facility). The WCGS2 and the Overdraft Facility are hereinafter collectively referred to as “Banking Facilities”. 6 [10] The Banking Facilities was secured amongst others by the personal guarantee provided by the directors of NSB, namely, the 1st Defendant and one Wan Hernizam bin Wan Chik (Wan Hernizam). Vide the guarantee, the 1st Defendant and Wan Hernizam had agreed to guarantee the payment of all sums due and payable by NSB under the Banking Facilities together with interest accruing, charges and costs. [11] Pursuant to NSB’s failure to comply with the payment terms in respect of the Banking Facilities granted, the 2nd Defendant initiated a civil action against the borrower NSB and the guarantors, namely, the 1st Defendant and Wan Hernizam vide Kuala Lumpur High Court Suit No. 22NCC-377-10/2014 (Suit 377). [12] In Suit 377 –

NSB and Wan Hernizam failed to enter appearance. Judgment in Default of Appearance dated 7 November 2014 (Judgment in Default) was entered against NSB and Wan Hernizam. 7

as a result of the Judgment in Default, NSB was wound up on 30 July 2015 and Wan Hernizam was adjudicated a bankrupt on 3 December 2015.

summary judgment under Order 14 of the Rules of Court 2012 was entered against the 1st Defendant on 6 February 2015 for RM987,528.99 under the WCGS2 and RM461,845.36 under the Overdraft Facility. The 1st Defendant did not appealed against the judgment entered against him.

the 1st Defendant filed a Third Party Proceedings against the Plaintiff (the first third party), Sri Binajaya Sdn Bhd (the second third party) and two others. The Plaintiff was initially represented by Messr. Guna Perumal & Associates, then Messrs C N Rajan & Co and later Messrs Ravi G. The Plaintiff filed his defence to the 1st Defendant’s claim.

hearing of the Third Party Proceedings was scheduled on 5 May 2015. However on the hearing date parties entered into a consent judgment (Consent Judgment) in the presence of solicitors for the Plaintiff and the 1st Defendant. 8 [13] Pursuant to the Consent Judgment –

the Plaintiff executed a Deed of Indemnity in favour of the 1st Defendant.

Wan Hernizam send two (2) cheques to the 2nd Defendant dated 25 June 2015 and 25 July 2015 of RM150,000.00 each. The cheques were issued by Sri Binajaya Sdn Bhd (the second third party in Suit 377) where the Plaintiff is a director. The said cheques were signed by the Plaintiff. However the said cheques were not drawn and returned. As a result, the 2nd Defendant initiated winding up proceedings against NSB and on 30 May 2015 NSB was wound up. [14] The 2nd Defendant also commenced bankruptcy proceedings against the 1st Defendant via a Bankruptcy Notice dated 20 August 2015 against the 1st Defendant. Faced with the bankruptcy proceedings, the 1st Defendant filed civil action against the Plaintiff vide Mahkamah Tinggi Shah Alam BA-22-NCVC-34-01/2016 on 20 January 2016 (Suit 34) to enforce the Deed of Indemnity. In Suit 34, the 1st Defendant claimed, among others, against the Plaintiff the sum RM1,581,949.47 being the amount claimed by the 2nd Defendant against the 1st Defendant. The 1st 9 Defendant’s claim was dismissed after full trial. The 1st Defendant appealed. [15] On 3 March 2016, the Plaintiff filed an application in Suit 377 to set aside the Consent Judgment. On 15 September 2016 the said application was dismissed with costs. The Plaintiff appealed. As at the date of dismissal of the OS, the appeal is pending. [16] On 25 November 2016 the Plaintiff filed this OS seeking for the reliefs as stated in paragraph 1 above, in particular for the Consent Judgment and Deed of Indemnity be rescinded. Plaintiff’s case [17] The Plaintiff’s grounds for filing the OS may be summarized as follows –

he did not agree with the Consent Judgment and the Deed of Indemnity on the ground of inducement and/or fraud and/or coercion and/or unfair advantage and/or for want of consideration and/or for any money value. The Plaintiff alleges he was induced and coerced into a liability of 10 fraudulently committing paying the 2nd Defendant via the Deed of Indemnity which was not witnessed by any persons and therefore invalid.

as against the 2nd Defendant the Plaintiff alleges –

the Banking Facilities granted by the 2nd Defendant to NSB was approved by the 2nd Defendant on the payment of commission for a sum of RM40,000.00 to the 3rd Defendant by the 1st Defendant through NSB; and

(ii) there were non compliance of the conditions precedents of the banking facilities and that the 2nd Defendant was negligent in the release of the monies to NSB/borrower. As the OS against the 2nd Defendant was strike out under Order 18 rule 19 of the RoC 2012, this judgment will not deal with the above issues.

when the Consent Judgment in Suit 377 was entered and the 1st Defendant withdrew the Third Party Proceedings against the Plaintiff, the court is functus officio. The parties are only 11 left with the Consent Judgment and the Deed of Indemnity which the Plaintiff argues as conflicting with each other. Therefore the Plaintiff is entitle to file a fresh action to dispute the terms of the Consent Judgment and the Deed of Indemnity.

as against the 1st Defendant the Plaintiff alleges –

the 1st Defendant manipulated and/or conspired the release of the banking facilities from the 2nd Defendant because the 1st Defendant was the authorized signatory to NSB/borrower;

(ii) the 1st Defendant on his own volition utilized all monies received through the 2nd Defendant and the alleged contract proceeds from the 4th Defendant;

(iii) upon utilization of the monies, the 1st Defendant obtained by means of fraud, the Consent Judgment and the Deed of Indemnity.

the Plaintiff alleges there should not have been a Deed of Indemnity issued by him to the 1st Defendant. The Plaintiff alleges the Consent Judgment should consists of the 12 purported terms set out in the letter dated 28 April 2015 (Letter 28 April 2015) and that there should have been a settlement agreement the terms of which was set out in paragraph (i) of the Letter 28 April 2015. The Plaintiff further alleges the Consent Judgment and the Deed of Indemnity should consists terms as stated in paragraph (ii) of the Letter 28 April 2015.

As against his previous solicitor Messrs Ravi G in Suit 337, the Plaintiff alleges his previous solicitor had acted without his advise and/or instructions and has placed him into a liability to pay the 1st Defendant. The Plaintiff claims Messrs Ravi G did not, prior to the recording of the terms of the Consent Judgment in court on the 5 May 2015, give a draft copy of the finalised terms of the Consent Judgment and the Deed of Indemnity for him to approve and verify.

The Plaintiff is not connected to the claims in Suit 377. His records indicates the settlement was proposed on something relative to the Letter 28 April 2015 and letter dated 30 April 2015 which was not recorded in the Consent Judgment. The Plaintiff alleges the solicitor has agreed upon themselves on 13 a different terms as recorded in the Consent Judgment and the Deed of Indemnity without his knowledge. The Plaintiff also claim the negligence conduct of the solicitors in Suit 377 has made the him liable for the debts of the 1st Defendant and he was coerced into signing the Deed of Indemnity which contains penal sanction which has affected his freedom to contract for what he had negotiated in terms of the Letter dated 28 April 2015. 1st Defendant’s contentions [18] It is the 1st Defendant’s contentions that the relief sought by the Plaintiff in the OS are essentially the same relief sought by the Plaintiff in his application filed in Suit 377 to set aside the Consent Judgment. The filing of the OS is the Plaintiff’s attempt to have a second bite at the cherry and is therefore an abuse of the process of the court. [19] The Plaintiff’s allegations that –

he did not agree with the terms of the Consent Judgment and Deed of Indemnity; and 14

that the terms of the Consent Judgment which did not incorporate terms stated in the Letter 28 April 2015 and 30 April 2015 had been raised by the Plaintiff in his application filed in Suit 377 to set aside the Consent Judgment and in his defence filed in Suit 34. As such res judicata sets in and the Plaintiff’s claim in the OS ought to be dismissed. [20] The 1st Defendant vehemently denies the Consent Judgment and the Deed of Indemnity was obtained through inducement, fraud, coercion or unfair advantage. The Plaintiff failed to provide particulars of fraud, coercion or unfair advantage. The Consent Judgement was recorded after series of negotiation carried out by the parties. [21] At all material time the Plaintiff was legally represented by his solicitors. The issue of his solicitor acting without his knowledge/instruction had been raised by the Plaintiff in his application to set aside the Consent Judgment in Suit 377. 15 [22] The issue of inducement, fraud, coercion or unfair advantage was never raised by the Plaintiff either in his application to set side the Consent Judgment in Suit 377 or in the Plaintiff’s defence filed in the Third Party Proceedings in Suit 34. These are afterthought issues due to the Plaintiff’s failure to set aside the Consent Judgment in Suit 377. [23] In fact in the Third Party Proceedings filed by the 1st Defendant against the Plaintiff, the 1st Defendant had alleged fraud and/or conspiracy to defraud by the Plaintiff on the 1st Defendant. The Plaintiff did not challenge the said allegations. Instead, a Consent Judgment was recorded. [24] The 1st Defendant denies using his position as director of NSB and instructed the 4th Defendant vide letter dated 15 November 2013 to channel the contract proceeds to NSB in violation of the condition precedents. The Plaintiff’s allegations of non-compliance of the conditions precedent were also not raised by the Plaintiff in his application to set aside the Consent Judgment in Suit 377 or in the Plaintiff’s defence filed in the Third Party Proceedings in Suit 34. This is another afterthought issue. 16 Findings of the court [25] In essence the reliefs (as stated in paragraph 1 above) sought by the Plaintiff is for the rescission of the Consent Judgment and the Deed of Indemnity. The other reliefs stated in the OS are consequences to the rescission of the same. It is apparent the Plaintiff’s ultimate aim in relation to the reliefs sought, if granted by the court, is for that the Plaintiff to be relieved of his obligations to the 1st Defendant under the Consent Judgment and the Deed of Indemnity. In this respect it is pertinent to note that the terms of the Consent Judgment and pursuant thereto the Deed of Indemnity, were terms which the Plaintiff has consented and recorded before the court on 5 May 2013. [26] The main grounds put forward by the Plaintiff for the rescission of the Consent Judgment and the Deed of Indemnity may be summarized as follows –

he did not agree to the terms of the Consent Judgment and the Deed of Indemnity.

the Consent Judgment and Deed of Indemnity was obtained by and/or executed by inducement and/or fraud and/or 17 coercion and/or unfair advantage and/or for want of consideration and/or for any money value.

the Banking Facilities was obtained by fraud (the 1st Defendant had paid commission of RM40,000.00 to the 3rd Defendant an employee of the 2nd Defendant) and the 2nd Defendant was negligent in disbursing the monies to NSB/borrower as the conditions precedent were not complied.

the Plaintiff alleges his previous solicitor had acted without his advise and/or instructions. The Plaintiff alleges the solicitor has agreed upon themselves on a different terms and not relatively on the terms stated in the Letter 28 April 2015 and letter dated 30 April 2015. His former solicitor did not give him a draft copy of the final terms of the Consent Judgment and the Deed of Indemnity was not given to him prior to the recording of the terms of the Consent Judgment in court on the 5 May 2015. 18 [27] The Consent Judgment, being a critical document in Suit 377 and in the instant case and the root of the Plaintiff’s grievances, is reproduced verbatim below - DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR GUAMAN NO. 22NCC-377-10/2014 ANTARA RHB BANK BERHAD (No. Syarikat : 6171-M) … PLAINTIF

NUTRIWIRA SDN BHD (No. Syarikat: 670612-V)

MOHD SHAHREEN BIN MHD JAAR (No K/P: 860408-33-5577)

WAN HERNIZAM BIN WAN CHIK (No K/P: 820703-08-5631) … DEFENDAN-DEFENDAN

SRI THARAN A/L GANESAN (No. K/P: 640507-10-7575)

SRI BINAJAYA SDN BHD (No. Syarikat: 516218-W)

RAMESH KUMAR A/L GOPAL (No. K/P: 670122-05-5193)

SYAHRUL ASYWAL BIN A JALIL (No. K/P: 730227-05-5159) ... PIHAK-PIHAK KETIGA 19 DI HADAPAN HARMINDAR SINGH DHALIWAL PADA 5 HARIBULAN MEI 2015 DALAM MAHKAMAH TERBUKA PENGHAKIMAN TINDAKAN INI setelah dipanggil pada hari ini untuk Bicara di hadapan Yang Arif Tuan Harminder Singh Dhaliwal, Hakim Mahkamah Tinggi Kuala Lumpur, DENGAN KEHADIRAN Dato’ Jerald Gomez (Cik Michelle Wong bersamanya), peguamcara Defendan Ke-2, Encik Ravi G (Cik Aida Hassan bersamanya), peguamcara Pihak Ketiga Pertama dan Ke-2, Encik Mohan Sarkaran, peguamcara Pihak Ketiga Ke-3, dan Cik Susila bt Salleh, peguamcara Pihak Ketiga Ke-4, MAKA ADALAH PADA HARI INI DIHAKIMKAN SECARA PERSETUJUAN BAHAWA Defendan Ke-2 menerima tawaran Pihak Ketiga Pertama dan Ke-2 atas terma-terma berikut:

Bahawa Pihak-pihak Ketiga, khususnya pihak Ketiga Pertama dan Defendan Ke-3 telah bersetuju dan mencapai penyelesaian dengan Pihak Plaintif untuk menjelaskan hutang yang merupakan perkara subjek prosiding Pihak Ketiga dan oleh itu, membebaskan Defendan Ke-2 sebagai penjamin;

(ii) Bahawa peguamcara pihak Ketiga Pertama dan Ke-2 akan memastikan bahawa Pihak Ketiga Pertama serta pengarah dan pemegang saham baru Defendan Pertama menandatangani dan menyerahkan Surat Ikatan Indemniti yang memihak Defendan Ke-2 kepada Tetuan Jerald Gomez & Associates, dalam format dan perkataan Surat Ikatan Indemniti yang diserahkan kepada Mahkamah pada hari ini;

(iii) Bahawa Defendan Ke-2 telah bersetuju untuk memindahmilik sahamnya dalam Defendan Pertama kepada pemegang saham baru sebanyak RM1/- dan menandatangani boring pindahmilik 20 saham, resolusi yang relevan dan surat perletakan jawatan selaku pengarah Defendan Pertama. Kesemua dokumen ini akan diserahkan kepada Tetuan Ravi G sebaik Tetuan Jerald Gomez & Associates menerima Surat Ikatan Idemniti yang ditandatangani dan disaksikan;

(iv) Bahawa ini ialah penyelesaian global yang penuh dan muktamad untuk semua perkara tertunggak antara Pihak Ketiga Pertama dan Ke-2 dengan Defendan Ke-2; dan

Atas dasar ini, Defendan Ke-2 menarikbalik prosiding Pihak Ketiga. ADALAH DIHAKIMKAN BAHAWA prosiding Pihak Ketiga ditarikbalik dan dibatalkan tanpa perintah untuk kos. Bertarikh pada 5 haribulan Mei 2015 t.t. MOHD KHUHAIRY BIN IBRAHIM ........................................................ Timbalan Pendaftar Mahkamah Tinggi Kuala Lumpur NOTIS DI BAWAH ATURAN 45 KAEDAH 7 KAEDAH-KAEDAH MAHKAMAH 2012 Jika kami, Ravi G, Aida Hassan dan Sri Tharan a/l Ganesan yang dinamakan dalam ini, abai mematuhi penghakiman ini mengikut masa tujuh (7) hari dalamnya itu dari penyampaian penghakiman ini, maka kamu boleh dikenakan proses pelaksanaan bagi maksud memaksa kamu mematuhinya. 21 The law [28] There is a string of authorities which held that a Consent Judgment is a contract which has the force of law and that it may be set aside for the same reasons as those on which an agreement may be set aside (Tong Lee Hwa & Anor v Chin Ah Kwi Tong Chong Fah v Chin Ah Kwi [1971] 1 LNS 143; [1971] 2 MLJ 75; Tan Geok Lan v La Kuan [2004] 2 CLJ 301; Badiaddin Mohd Mahidin v Arab-Malaysian Finance Bhd [1998] 2 CLJ 75). [29] As such, if the consensus ad idem or the free consent of parties to a consent judgment or consent order was obtained by means of fraud, mistake, total failure of consideration, misrepresentation, coercion, undue influence or any other grounds in equity which vitiates such free consent then the perfected consent judgment or consent order could be set aside. Whether the OS is a duplicity [30] As stated above, the Plaintiff’s application dated 3 Mac 2016 to set aside the Consent Judgment which was filed in Suit 377 (Enclosure 54 in Suit 377) was dismissed on 15 September 2016 and the Plaintiff had 22 appealed against the said decision vide Notice of Appeal dated 12 October 2016. While hearing of the appeal was pending at the Court of Appeal, the Plaintiff filed the OS on the 25 November 2016 seeking for the reliefs as stated in paragraph 1 above. [31] Whilst the Plaintiff’s application Enclosure 54 in Suit 377 was to set aside the Consent Judgment and the OS in the instant case is to rescind the same and the Deed of Indemnity, it is of significance to note that the grounds forwarded for Enclosure 54 in Suit 377 and in the instant OS is substantially the same and the reliefs sought ultimately carries the same effect. This will be discussed at length in the subsequent paragraphs. The 1st Defendant in the instant case submits the OS is a duplicity proceedings and an abuse of the process of the court. [32] In The Royal Selangor Golf Club v Pentadbir Tanah Wilayah [2012] 3 CLJ 293 which is a land reference matter, the High Court made an order for the respondent (the Pentadbir Tanah Wilayah) to pay to the appellant, among others, additional compensation amounting to RM539,425.25 (first order). The respondent filed an appeal against the first order. After the filing of the appeal, the respondent filed an application (enclosure 9) under Order 92 rule 4 of the Rules of the High Court 1980 (pertaining to the preservation of the inherent powers of the 23 court) to clarify and if necessary make consequential amendment to the first order. The High Court allowed the respondent’s application and made a new order (second order) altering the first order. The appellant appealed against the second order on grounds, inter alia, duplicity of proceedings and abuse of process. Abdul Wahab Patail JCA delivering the Court of Appeal judgment said this at paragraph 12 of the judgment – [12] In the ordinary case, if a court erred, the proper course is an appeal. Since a notice of appeal to the Court of Appeal had been filed earlier, the application in encl. 9 is in duplicity of the appeal process. Until an appeal is withdrawn, dismissed or otherwise disposed of by the court to which it is filed, it remains in existence as an appeal. No evidence was put before the court that the appeal was withdrawn. The alternative of making an application to clarify the order appealed from having been forgone, remained foregone. The filing of the application at encl. 9 before the High Court created a duplicity. The document that created the duplicity must fail. There cannot be a question of the party committing a duplicity being at liberty to choose which is to be proceeded with, without having first withdrawn the other. [33] In the instant case, the Plaintiff had appealed against the decision of the court dismissing his application Enclosure 54 in Suit 377 and there is no evidence to show that the Plaintiff had withdrawn the said appeal at the date of the hearing of the OS in the instant case. In actual fact, the Plaintiff did not disclose in his affidavit supporting the OS that he had 24 previously filed an application to set aside the Cosent Judgment which was dismissed and that his appeal against the dismissal is pending. [34] On the facts of the instant case and based on the case of The Royal Selangor Golf Club, the Plaintiff’s OS which was filed while his appeal against the dismissal of his application Enclosure 54 in Suit 377 is pending in the Court of Appeal is an abuse of the process of the court as filing of the OS tantamount to a duplicity of proceedings. [35] In the Plaintiff’s written submission (Enclosure 53) the Plaintiff contends when the 1st Defendant withdrew the Third Party Proceedings, the court has functus officio and the parties are only left with the Consent Judgment and Deed of Indemnity. Since the Plaintiff is disputing the terms of the Consent Judgment and the Deed of Indemnity, the Plaintiff argues that the Plaintiff is left with a choice to commence fresh suit to dispute the terms of the same. The Plaintiff relies on the case of Tio Chee Heng v Tractors Malaysia Bhd [1973] 1 MLJ 66 where it was said the court paved the way for another suit or a fresh action to set aside or rescind the consent judgment. 25 [36] With respect, the Plaintiff’s reliance on Tio Chee Heng’s case is misconceived. The facts in Tio Chee Heng’s case can be distinguished from the instant case. The facts is stated below. [37] In October 1967 at the appellant's request, the respondents hired a number of tractors to a company, SESB, which was wholly owned by the appellant. By 1968, SESB was owing about two million dollars to the respondent. By an agreement dated 21 November 1968, the appellant agreed to guarantee payment of SESB’s debt and agreed, inter alia, to pay $50,000 a month towards the discharge of the debt. Due to the appellant’s failure to honour the payment terms, the respondent filed an action (first action) against the plaintiff for the recovery of monies due. [38] The respondents subsequently took out a summons in chambers for leave to enter final judgment against the appellant for the sum admitted by the appellant in his defence. Leave was duly granted on 27 December 1969 and judgment entered for the amount against the appellant (consent judgment). [39] The respondent commenced action to execute the consent judgment including obtaining order for sale of land charged by the appellant to secure the payment of SESB’s debt to the respondent. The 26 appellant applied to have the consent judgment obtained on 27 December 1969 in the first action set aside, but the application was dismissed. The appellant did not appeal against the decision. [40] The appellant subsequently filed a fresh action to rescind or rectify the agreement which he entered into with the respondent on 21 November 1968. The court set aside the writ of summons and all subsequent proceedings in the action on the grounds that the plaintiff was estopped from bringing the action and that the action was frivolous and vexatious. [41] On appeal the Federal Court held that the appellant was not estopped from filing the fresh action to rescind or rectify the agreement dated 21 November 1968 because the fresh action is not res judicata merely because of the order in the first suit dismissing the application to set aside the consent judgment obtained on 27 December 1969. [42] Thus in Tio Chee Heng, there were two different applications made. First there was the application to set aside the consent judgment obtained in the first suit and such application was made in the suit itself. The second application was by way of a fresh action to rescind or rectify 27 the agreement dated 21 November 1968 on which the consent judgment was founded. [43] In the instant case, the Plaintiff’s application in Enclosure 54 in Suit 377 and the OS in the instant case is in respect of the same subject matter, which is the Consent Judgment which resulted in the execution of the Deed of Indemnity in accordance with the terms of the Consent Judgment. Since the Plaintiff’s appeal against dismissal of Enclosure 54 in Suit 377 is pending, the OS which relate to the same subject matter is obviously a duplicity. On this ground alone the OS ought to be dismissed. Be that as it may and for completeness, I will proceed to discuss whether res judicata is applicable to the OS. Whether the issues raised in the OS had been adjudged and ventilated in the Plaintiff’s application Enclosure 54 in Suit 377 and res judicata applies [44] The Plaintiff further contends he is not barred from filing the OS because he is not applying to set aside the Consent Judgment (as in Enclosure 54 in Suit 377) but he is seeking relief for the rescission of the Consent Judgment and Deed of Indemnity and to be relieved of the obligations and liabilities of the same. According to the Plaintiff in 28 relieving him of his obligations and liabilities under the Consent Judgment, the Consent Judgment is not set aside and remain in tact but without his obligations and liabilities. Such argument to my mind is flawed and untenable. My reasons is stated below. [45] In the OS the Plaintiff seeks for the rescission of the Consent Judgment on the ground the formation of the Consent Judgment was vitiated by inducement, fraud, coercion or unfair advantage. Under the law the effect of rescission of contract on such ground is that the contract is void ab initio and parties to the Consent Judgment cannot sue for damages. The only remedy being restitutio in integrum, that is, the parties are to be rehabilitated and restored so far as may be to the position they occupied before the contract was made. [46] The Plaintiff’s application Enclosure 54 in Suit 377 was filed under Order 2 rule 2, Order 42 rule 13 and Order 92 rule 4 of the RoC 2012. As can be seen later, the Plaintiff’s main ground for setting aside the Consent Judgment is that it was entered without his consent as he did not give the prerequisite mandate to his former solicitor to enter into the Consent Judgment. 29 [47] It is to be noted that although the relief sought in Enclosure 54 in Suit 377 and the OS is different, the ground on which the relief is premised is essentially the same, namely, the Plaintiff’s consent. The ultimate effect of the reliefs sought in both the proceedings is, without a doubt the same - discharging the Plaintiff from his obligations and liabilities under the Consent Judgment which he had consented earlier. [48] In Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783 the Supreme Court comprehensively dealt with the res judicata principle – What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature. When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy. Since a res judicata creates an estoppel per rem judicature, the doctrine of res judicata is really the doctrine of estoppel per rem judicatum, the latter being described sometimes in a rather archaic way is estoppel by 30 record. Since the two doctrines are the same, it is no longer of any practical importance to say that res judicata is a rule of procedure and that no estoppel per rem judicatum is that of evidence. Such dichotomy is apt to give rise to confusion. The cause of action estoppel arises when rights or liabilities involving a particular right to take a particular action in Court for a particular remedy are determined in a final judgment and such right of action ie. the cause of action, merges into the said final judgment; in layman’s language, the cause of action has turned into the said final judgment. The said cause of action may not be re-litigated between the same parties because it is res judicata. In order to prevent multiplicity of actions and also in order to protect the underlying rationales of estoppel per rem judicatum and not to act against them, such estoppel of cause of action has been extended to all other causes of action (based on the same facts or issues) which should have been litigated or asserted in the original earlier action resulting in the final judgment and which were not either deliberately or due to inadvertence. [49] In Farlim Properties Sdn Bhd v Goh Keat Poh & Ors (And Other Appeals) [2003] 4 CLJ 505 the Court of Appeal held - 6(1) When the plea of res judicata is raised it is necessary to identify with precision the issue that was decided in the earlier proceedings. In Tong Lee Hwa & Anor v. Lee Yoke San [1979] 1 MLJ 24, [1981] 1 MLJ 54 Chang Min Tat FC held that to constitute a res judicata, the earlier judgment must, in terms of the Privy Council decision in Kok Hoong v. Leong Cheong Kweng Mines Ltd [1964] MLJ 49 ‘necessarily and with precision’ determine the point in issue. 31 [50] Accordingly, in order to determine whether there is merit in the 2nd Defendant’s contentions that the issues raised in the OS had been adjudged and ventilated, the Plaintiff’s application Enclosure 54 in Suit 377 and the judgment of the High Court thereto need to be examined. [51] The Plaintiff is the first third party in Suit 377. The second third party is a company which is wholly owned by the Plaintiff, namely, Sri Binajaya Sdn Bhd. As stated above the third party proceedings against the Plaintiff and Sri Binajaya and 2 others were initiated by the 1st Defendant in the instant case, who was the second defendant in Suit 377. [52] The Plaintiff’s application/reliefs in Enclosure 54 in Suit 377 (see Exhibit S-7 of the 1st Defendant affidavit Enclosure 10 in the instant case) is reproduced below –

Penghakiman Persetujuan bertarikh 5 haribulan Mei 2015 (selepas in dirujuk sebagai “Penghakiman Persetujuan tersebut”) diketepikan;

Bahawa segala proses perlaksanaan dan/atau apa-apa prosiding berhubung kait dengan Penghakiman Persetujuan tersebut digantung sehingga selesai pendengaran permohonan ini;

Kos bagi permohonan ini ditanggung oleh Defendan Ke-2; 32

Dalam alternatif, kos bagi permohonan ini adalah kos dalam kausa;

Relif-relif lain yang Mahkamah Yang Mulia ini fikirkan sesuai. Alasan-alasan untuk permohonan ini adalah seperti berikut:-

Pada 5 Mei 2015 satu Penghakiman Persetujuan telah dimasukkan terhadap Pihak-pihak Ketiga dan khususnya terhadap Defendan Ke-3 [Wan Hernizam] dan Pihak Ketiga Pertama [Plaintiff].

Pihak-pihak Ketiga Pertama dan Ke-2 [Sri Binajaya Sdn Bhd] tidak memberikan mandat dan/atau meluluskan terma-terma untuk Penghakiman Persetujuan tersebut.

Notis Pihak Ketiga telah ditarik balik tanpa perintah berkenaan kos dan dalam keadaan ini tiada asas untuk Penghakiman Persetujuan tersebut dimasukkan terhadap diri saya dan Pihak-Pihak Ketiga yang lain.

Dalam tindakan Pihak Ketiga, Defendan hanya boleh mendapatkan sumbangan dan indemniti terhadap Pihak Ketiga dan bukannya terhadap Defendan bersama.

Penghakiman Persetujuan tersebut juga telah dimasukkan terhadap Defendan Ke-3 dalam keadaan yang mana Defendan Ke-3 tidak hadir atau diwakili Peguamcara pada masa yang material.

Perenggan (ii) Penghakiman Persetujuan tersebut adalah terma yang perlu dilaksanakan oleh Peguamcara dan bukannya pihak-pihak dalam tindakan.

Penghakiman Persetujuan tersebut adalah cacat, tidak teratur dan/atau selainnya tidak menurut prosedur sivil atau undang-undang dan oleh itu harus diketepikan. 33 Alasan-alasan selanjutnya untuk permohonan ini adalah seperti yang dinyatakan di dalam Afidavit Sokongan yang diikrarkan oleh SRI THARAN a/l GANESAN (No. K/P.: 640507-10-7575) yang telah dikrarkan dan difailkan bersama-sama ini. [53] In support of Enclosure 54 in Suit 377, the Plaintiff affirmed an affidavit on 3 March 2016. The Plaintiff, among others, deposed as follows –

On 5 May 2015 a consent judgment was entered against the Third Parties and specifically against the 3rd Defendant and myself.

I will verily aver that the 2nd Third Party and I did not provide any mandate and/or approved the terms for the said Consent Judgment.

I am also advised by my present solicitors, Messrs Zahir Jeya & Zainal and verily believe that the said Consent Judgment that was entered in the manner which it had been entered, ought to be set aside on the ground that it was entered without any proper mandate and/or approval.

I will also state that the 2nd Defendant had failed and/or neglected to fulfil his obligations under the terms thereof which required the 2nd Defendant to transfer all his shares and resign as a Director of the 1st Defendant.

I have also instructed my solicitors Messrs Zahir Jeya & Zainal to request from Messrs Ravi G which firm took over conduct from Messrs C.N. Rajan & Co, to forward all cause papers, documents and/or correspondence however to date they have failed and/or neglected to forward the same. A copy of Messrs Zahir Jeya & Zainal’s letter dated 34 11 September 2015 is annexed herewith and marked as exhibit “STG- 1”.

My solicitors had also on 15 February 2016 sent a reminder letter to Messrs Ravi G however they have also failed and/or neglected to attend to the same. A copy of Messrs Zahir Jeya & Zainal’s letter dated 15 February 2016 is annexed herewith and marked as exhibit “STG-2”.

I am advised by my solicitors and verily believe that the said Consent Judgment also ought to be set aside on the ground that the said Third Party Notice filed by the 2nd Defendant was withdrawn with no order as to costs and in the circumstances there can be no basis for such Consent Judgment being entered against myself and the other Third Parties.

I am also advised by my solicitors and verily believe that the said Consent Judgment ought to be set aside on the ground that in a Third Party action, the 2nd Defendant can only seek contribution and indemnity against the Third Parties and not against a Co-Defendant.

I am advised by my solicitors and verily believe that the said Consent Judgment is flawed, irregular and/or otherwise not in accordance with civil procedure nor the law and therefore ought to be set aside. [54] The judgment of the learned Judicial Commissioner (JC) dismissing Enclosure 54 in Suit 377 is reported in RHB Bank v Nutriwira Sdn Bhd & Ors [2016] MLJU 1882. Having perused the said judgment, it is crystal clear the issue in relation to the Plaintiff’s consent was raised by the Plaintiff and was deliberated upon in detail by the High Court. 35 Considering the significance of the matter, it is best that I reproduce the whole of the relevant passages as evidence that the learned JC had dealt with the said issues. This is what he said – [27] … the principal reason relied on by the first and second third parties to justify their application herein is that the Consent Judgment was entered into by their former solicitors without any mandate from them. And the same reason is thus somehow related to the argument of their alleged non-receipt of Consent Judgment. [28] The applicants insisted that they did not provide their then solicitors any mandate to approve the terms of the said Consent Judgment. From the affidavits of parties, it seems beyond dispute that the applicants had in the relevant proceedings changed their solicitors twice. After the applicants’ former solicitors Messrs C.N. Rajan & Co filed their defence on 27 February 2015, the applicants appointed Messrs Ravi G, as their new solicitors who were the solicitors on record at the time of the entry of the Consent Judgment. Indeed, as set out earlier, they were specified in the Consent Judgment as the solicitors representing the first and second third parties and were in attendance before the Court. The Consent Judgment was sent to Messrs Ravi G, as the solicitors on record for the applicants in the instant application. [29] The present solicitors for the first and second third parties however are Messrs Zahir Jeya & Zainal, who, it is contended by the applicants, had on 11 September 2015 requested from Messrs Ravi G, the firm which took conduct from Messrs C.N. Rajan to forward all cause papers, documents or correspondence pertaining to the earlier proceedings. But Messrs Ravi G however have to date neglected to do so. It is also submitted that on 15 February 2016, a reminder letter was sent to Messrs Ravi G, but again, they have continued not to respond to the applicants’ request. Neither did Messrs Ravi G reply to the 36 applicants’ request for any evidence of mandate or approval granted by the latter to the former. [30] The first and second third parties thus argued that the Consent Order is defective and ought to be set aside without the clear consent of the parties. No mandate was given by the applicants herein for the entry into the Consent Judgment. In the absence of any clear express consent, the Consent Judgment was improperly entered into in order to pressurise parties. As I said earlier, the applicants appear to rely on this ground to also justify its delay in making the application, for at the hearing counsel for the applicants submitted that since the Consent Judgment was defective, the 30-day period would not apply as the Consent Judgment ought to be set aside at the start of this application. [31] In my view, this argument of the first and second third parties cannot succeed. First, the law is so well settled that a consent judgment can only be set aside on specific grounds, as established by the Federal Court in the leading case of Badiaddin Mohd Mahidin & Anor v Arab Malaysian Finance Berhad [1998] 2 CLJ 75 where Peh Swee Chin FCJ, in one of the judgments delivered by the Federal Court stated instructively as follows:- “The grounds referred to for setting aside a consent order of a judgement by consent are grounds which basically relate to consensus ad idem or the free consent of parties to a binding agreement or contract. It is elementary that if it is proved that there are grounds which vitiate such free consent, the agreement is not binding. Now a consent order or a judgement by consent is undoubtedly based on an agreement of both parties where consent to the agreement must or should have been free in the first place. If the agreement upon which a consent order or judgement by consent is based, is vitiated by any ground recognized in equity as vitiating such free consent, such as fraud, mistake, total failure of consideration, (see 37 Huddesfield Banking Co. v. Henry Lister [1895] 2 Ch. 273 and the cases cited therein), then such a perfected consent order or judgement by consent could be set aside in a fresh action filed for the purpose. Grounds which would vitiate such free consent should also include misrepresentation, coercion, and undue influence and other grounds in equity”. [emphasis added] [32] It is no less significant to note that the applicants did not in any of their affidavits make mention of, let alone specifically plead any of the aforesaid grounds established by Badiaddin Mohd Mahidin that could legitimately justify their application to set aside the Consent Judgment. [33] Secondly, the applicants’ reference to the Supreme Court case of Toh Seow Ngan & Ors v Toh Seak Keng & Ors [1990] 2 MLJ 303 which, according to the applicants, ruled that a consent order was defective and should be set aside since the petitioner in that case was absent at the hearing and never gave instructions to his counsel on the terms of the relevant consent order, is in my view misconceived. A careful review of the case would readily reveal that the core issue was that the consent order had been argued to be defective on two fronts. First the petitioner in the minority oppression action did not attend hearing and did not grant any mandate to his counsel on the terms recorded in the ensuing consent order. Secondly, the same consent order also sought to compel certain respondents who were in dispute with the petitioner to in addition to buying the shares of the petitioner, also those of the family members (who became the appellants) of the petitioner who had nothing to do with the petition and not named as parties in the same. [37] Thirdly, in the instant case, the assertion of absence of mandate is in my assessment unsupported by evidence. The Consent Judgment was entered into on the day fixed for the first day of trial of the suit. Parties were represented by counsel and as is usual are reasonably assumed to be acting with the requisite mandate at all material times. A 38 representative of the second third party was even present in Court (originally as a potential witness in trial) on the day of entry of the Consent Judgment. The Consent Judgment was not arrived at in a rushed manner. It did not come into existence independently of any court proceedings involving the parties in dispute. It was in the instant case, a result of a series of negotiation which saw withdrawal of actions and settlement of claims prior to the recording of the Consent Judgment. It could not have been the case that the applicants were totally in the dark about the trial dates or these developments either. Nor did they claim anything to such effect in their affidavits in any event. In fact the letter from their former solicitors dated 26 April 2015 to the lawyers for the second defendant clearly showed:-

The first and second third parties had reached settlement directly with the plaintiff bank;

(ii) They thus proposed in turn to reach settlement with the second defendant;

(iii) If agreed, the second defendant would be released from his obligations as a guarantor in the suit;

(iv) The third party proceedings against the first and second third parties must in return be withdrawn;

The Consent Judgment was proposed to be recorded on 5 May 2015 (which occurred according to plan); and

(vi) The letter was stated to be copied to the first and second third parties as clients. [38] Thus their assertion that their then solicitors lacked the mandate is difficult to accept given the fact that there had been negotiations led by their solicitors directly with the plaintiff bank as well as separately (but necessarily tie in with) the discussions with the second defendant, through the latter’s solicitors. The withdrawal of the third party proceedings against the first and second third parties clearly only occurred because of the entry into the Consent Judgment which was recorded on the date of 5 May 2015, as agreed by parties in advance. 39 There is also evidence of a letter by the third defendant on behalf of the first defendant company which enclosed two cheques issued by the third parties (thus again imputes knowledge on their part) for settlement with the plaintiff, post the entry of the Consent Judgment (see further below). As such, their conduct in seeking to set aside the Consent Judgment several months after it was entered into, instead of immediately, on the principal pretext that it was not received by them and especially on the argument that their solicitors were not mandated to agree to the terms therein is unsupported by evidence, could not be accepted, for the assertion is much more likely a direct result of an afterthought and a change of mind on their part, and thus is entirely unsustainable. [39] Fourthly, and in my view most crucially, what the applicants is truly claiming without actually unequivocally stating it is, for all intents and purposes that the former solicitors who, purportedly without mandate, had agreed to the Consent Judgment were the ones who were responsible for the problem. Yet, the applicants have not at the slightest shown that any action has been taken against the said solicitors for allegedly agreeing to the terms of the Consent Judgment which the applicants claimed to have been done without mandate or authority. [40] I find this absence of any action on the part of the applicants against the former solicitors, who as stated above were also contended to have ignored requests to furnish or return documents concerning the proceedings on the Consent Judgment to be entirely inconsistent with the crux of a claim against solicitors acting improperly without the client’s mandate. This further weakens the case of the applications. [41] Fifthly, if the argument put forth by the first and second third parties herein were accepted, it would unwittingly permit unscrupulous litigants to repudiate a validly recorded consent order or judgment in that the clients could conveniently, when it suits them to do so, such as when the clients change their mind about the consent order or judgment, orchestrate with their lawyers the same argument that the terms of a 40 consent order were agreed by the lawyers without authority. Equally brazenly, the collusion could even involve the litigants and their lawyers put up the pretence that there is subsequently a breakdown of relationship between the party and its lawyers and the lawyers no longer cooperating with their former client. All this whilst the litigant conveniently and understandably choosing not to take any action against the lawyers in cahoots. [42] Sixthly, the High Court had already decided in Lee Teng Siong v Lee Geok Thye Holdings Sdn Bhd [2003] 4 CLJ 834 that a counsel’s lack of mandate would not be a valid ground to set aside a consent order…. [55] Thus the Plaintiff’s allegation that his former solicitor was not given the mandate or authority to enter into the Consent Judgment and that he did not agree to the Consent Judgement was explicitly examined by the learned judge who then concluded there is no merits in the allegations made by the Plaintiff. Accordingly, with regards to the Plaintiff’s mandate to his former solicitor and his consent to the Consent

Judgment, it was duly ventilated and adjudged in Enclosure 54 in Suit As such res judicata applies and the Plaintiff is estop from raising the issue again. [56] In the instant case, besides attempting to re-litigate the issues which had already been ventilated, the Plaintiff also raise new and additional issues (see paragraph 18 above) which were not raised in his 41 application Enclosure 54 which includes, in particular, fraud which is alleged to have been committed by the 1st Defendant. Admittedly the issue of fraud were not raised at all by the Plaintiff in Suit 377. In this respect the question to be determined is whether it is open to the Plaintiff to now raise such additional and new issues. [57] In Crest Worldwide Sdn Bhd v Mudajaya Crporation Berhad [2016] 1 LNS 425, the learned judge allowed the defendant’s application to strike out the plaintiff’s suit under Order 18 rule 19 of the RoC 2012 on the grounds of no reasonable cause of action, the claim is frivolous and vexatious and that the claim is an abuse of the process of the court. The defendant’s primary complaint is premised on res judicata as there were substantial similar facts and reliefs sought in a suit filed earlier by the plaintiff and the second suit which was before the court. [58] Mary Lim J (now JCA) adopted the approach in Mayban Allied Bhd (formerly known as Phileo Allied Bank (M) Bhd) v. Kenneth Godfrey Gomez & Anor [2010] 9 CLJ 702; [2011] 5 MLJ 219 where it was held by the Court of Appeal that the court is entitled to look at the history of the case in order to determine if the cause of action is res judicata. The learned judge said as follows – 42 [41] A careful examination of the relevant cause papers and the affidavits and reply affidavits filed reveals that the essence or main complaint of the plaintiff concerns the non-completion of the project. That concern is common to and raised in both the 1st suit and the 2nd suit … [45] The principle of res judicata and issue estoppel prohibits the duplication or regurgitation of the same issues and facts through multiple actions filed after the first action has determined not only those issues but also all other likely related issues. To allow the same will be to allow multiplicity of actions and litigation by instalments which can do nothing but run havoc to the administration of civil justice. In Mayban Allied Bhd (formerly known as Phileo Allied Bank (M) Bhd) v. Kenneth Godfrey Gomez & Anor [2010] 9 CLJ 702; [2011] 5 MLJ 219, the Court of Appeal opined: [15] When a matter between two parties has been adjudicated and determined by a court of competent jurisdiction, they and their privies are not permitted to litigate once more the res judicata as the determination or judgment becomes the truth between such parties. An estoppel for rem judicatum has been created as a result (per Peh Swee Chin FCJ in Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783; [1995] 3 MLJ 189). The cause of action estoppel prevents reassertion of a cause of action which has been determined in a final judgment by the same parties in a subsequent proceeding. The Court has an inherent jurisdiction to dismiss or strike out an action on the ground of res judicata. [52] … the underlying objective of the plaintiff in the 2nd suit is the same as that in the 1st suit. It is to have the Court pronounce that the plaintiff has validly terminated the defendant from the project by reason of non-completion by the agreed date. In the 1st suit, the termination was on the basis of non-completion by 30.3.2014. In the 2nd suit, it is on the basis of non-completion of the project back on 21.11.2013… 43 [54] It is undeniable that all the material and relevant facts which are relied on in both suits are substantially similar. It is immaterial why the plaintiff chose to leave out these allegations. Since the two suits not only emanate from but rely on the same factual matrix, the Court cannot ignore the presence of the consent order. Under such circumstances, I agree with learned counsel for the defendant that although the reliefs sought may differ slightly as the focus now appears to shift to the four agreements, the principle of res judicata applies as decided in Mayban Allied Bhd (formerly known as Phileo Allied Bank (M) Bhd) v. Kenneth Godfrey Gomez & Anor. [56] In my view, to allow the claim to stand would be to allow the plaintiff to circumvent and contradict the terms of the consent order. Shorn of the trappings and pared down to its essential details, it is glaringly apparent that the plaintiff's case is obviously unsustainable by reason of the operation of the principle of res judicata, and that it would be an abuse of the process of court to allow the suit to remain. [59] In the case of Asia Commercial Finance (M) Berhad, it was held by the Supreme Court that the doctrine of res judicata is not confined to causes of action or issues which the court was asked to decide or had already decided. The court had this to say – There is one school of thought that issue estoppel applies only to issues actually decided by the Court in the previous proceedings and not to issues which might have been and which were not brought forward, either deliberately or due to negligence or inadvertence, while another school of thought holds the contrary view that such issues which might have been and which were not brought forward as described, though not actually decided by the Court, are still covered by the doctrine of res judicata ie. doctrine of estoppel per rem judicatum. 44 We are of the opinion that the aforesaid contrary view is to be preferred; it represents for one thing, a correct even though broader approach to the scope of issue estoppel. It is warranted by the weight of authorities to be illustrated later. It is completely in accord or resonant with the rationales behind the doctrine of res judicata, in other words, with the doctrine of estoppel per rem judicatum. It is particularly important to bear in mind the question of the public policy that there should be finality in litigation in conjunction with the exploding population; the increasing sophistication of the populace with the law and with the expanding resources of the Courts being found always one step behind the resulting increase in litigation. It is further necessary at this stage to understand the import of the words in the said famous statement ie "... every point which properly belonged to the subject of litigation... " which Somervell LJ explained in Greenhalgh v. Mallard [1947] 2 All ER 255, 257 as follows: ... res judicata for this purpose is not confined to the issues which the Court is actually asked to decide, but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the Court to allow a new proceeding to be started in respect of them. [60] In the instant case, issues in respect of the terms of the Consent Judgment, the Deed of Indemnity and the alleged fraud, inducement, coercion, unfair advantage and want of consideration are no doubt issues which are so closely related to the formation and execution of the Consent Judgment. The said issues are part and parcel of a series of transactions which culminates in the formation of the Consent Judgment 45 and the Deed of Indemnity. The issues could and should have been raised by the Plaintiff when he moved the court to set aside the Consent Judgment in his application Enclosure 54 in Suit 377. It is therefore my considered opinion that the Plaintiff cannot now be allowed to move the court for a second time and raise those issues as the doctrine of res judicata applies to the OS. [61] On the facts it is evident the additional new issue raised are an afterthought on the part of the Plaintiff to get his way out of a perfectly valid Consent Judgment the terms of which he had consented earlier. This is evident from the Plaintiff’s allegations of fraud where he failed to specifically plead details and particulars of fraud which is required under the law. Besides raising new issues, he has also, in what I see as a desperate attempt to wriggle out of the Consent Judgment, has cast a wider net to include the 2nd Defendant/RHB bank, the 3rd Defendant an employee of the 2nd Defendant and the 4th Defendant who are not party to the Consent Judgment (see terms of Consent Judgment at paragraph 27 above) to be blamed for his own conduct for agreeing to the Consent Judgment. 46 Conclusion [62] As the authorities has ruled, to allow the Plaintiff to re-litigate the same issues and raise further issues, would tantamount to multiplicity of actions and litigation by instalments which can cause chaos to the administration of civil justice. Furthermore, there would be no finality if the Plaintiff is allowed to open up and re-litigate the issues further. The underlying objective of the Plaintiff’s OS is the same as that in Enclosure 54 in Suit 377 (to be discharged from the obligations and liabilities under the Consent Judgment and Deed of Indemnity) and to achieve the objective the Plaintiff relies on substantially similar material and relevant facts. [63] Premised on the above the Plaintiff’s OS is res judicata and obviously an abuse of the process of the court. As such it is only appropriate that the OS be dismissed. The OS was accordingly dismissed with costs. ( KHADIJAH BINTI IDRIS ) JUDICIAL COMMISSIONER HIGH COURT (COMMERCIAL DIVISION) DATED 14 MAY 2018 47 Counsel: Plaintiff : Guna Perumal with Chan Guey Fa of Messrs Guna Perumal & Associates. Defendant : Jayaratnam Kumarasamy of Messrs Jayaratnam & Partners (for the 1st Defendant)