Sunthararuban A/L Selvanayagam v Clifford Dass (WA-22NCvC-353-06/2025)

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1 ANTARA SUNTHARARUBAN A/L SELVANAYAGAM (NO. K/P: 811208-10-5397) ...PLAINTIF

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Pursuant to an application filed by the Plaintiff for an interlocutory injunction to restrain the Defendants from using the said Power of 21/01/2026 00:10:18 WA-22NCvC-353-06/2025 Kand. 57 Attorney pending the disposal of this civil suit, this Court issued the injunction sought on 2nd July 2025. [3] After affidavits were exchanged, an unexpected issue cropped up in that the Defendants’ counsel submitted from the Bar table that the Plaintiff was in fact not in Malaysia on 12th and 14th August 2025 – the respective dates when he purportedly affirmed his affidavits in the presence of a commissioner-for-oaths in Malaysia, I had to adjourn the hearing on 19th September 2025 when this side issue cropped up, so as to enable the Plaintiff to respond. A report was also lodged administratively for an investigation to be carried out regarding the commissioner-for-oaths who had apparently ‘attested’ the Plaintiff’s signature without his presenting himself. [4] The Defendants followed up with an application to expunge the impugned affidavits while the Plaintiff sought leave to refile the two affidavits after the Plaintiff affirmed them properly. The impugned affidavits were expunged and the Plaintiff was ordered to pay costs to the Defendants. The Plaintiff’s application for leave to file his two affidavits was allowed, also with costs to be paid by the Plaintiff to the Defendants. I shall not delve into this side issue as the issue here is whether the Plaintiff’s application for an interlocutory injunction ought to be allowed pending disposal of this civil suit. [5] After hearing the Plaintiff’s application on merits, I decided to issue the injunction as prayed – so as to preserve the status quo pending trial. Pursuant to the omnibus prayer in the Plaintiff’s application, I also ordered an injunction to be issued against the Plaintiff, to restrain him from using his position as the registered proprietor of the said property from disposing it. A further order was also issued to permit the Defendants to continue to occupy the said property. Background Facts [6] The said property is held under H.S.(D) 15765, PT1320, Mukim Ampang, Daerah Kuala Lumpur, Kuala Lumpur with the postal address at No. 32, Jalan Perkasa 9, Taman Maluri, 55100 Kuala Lumpur (“the said Property”). [7] The said Property was originally owned by the Defendants’ father (“Mr. Dass”). It was transferred to the Plaintiff pursuant to a sale and purchase agreement and was charged to Standard Chartered Bank. The Plaintiff’s Position [8] The Plaintiff avers that he signed a Power of Attorney dated 11th September 2023 (“the said PA”) in favour of the Defendants pursuant to an agreement for him to sell the said Property to the Defendants. [9] The Plaintiff alleges a breach of their agreement and is thereby seeking an order to revoke the said PA. The Defendants’ Position [10] The Defendants contend that the sale and purchase agreement dated 8th April 2014 made between their father Mr.Dass and the Plaintiff to sell the said Property to the Plaintiff was in fact a sham agreement! According to them: “the Plaintiff agreed to allow Mr Dass to effect a ‘documentary sale’ of the Property, designating the Plaintiff as the ‘buyer’ and Mr Dass could use the Plaintiff’s name to secure the financing needed, secured by the Property”. [11] The Defendants further aver that the ‘sale’ to the Plaintiff was to enable Mr.Dass to use the Plaintiff’s name to borrow money from a bank by charging the said Property, i.e. with the Plaintiff as the charger. [12] It was further averred by the Defendants that the Plaintiff signed a Power of Attorney dated 11th September 2023 in favour of the Defendants because the Plaintiff was asked by Mr.Dass to do so, and that it was not pursuant to an agreement for the Plaintiff to sell the said Property to the Defendants. Analysis of the Facts and Law [13] There is no doubt that the Plaintiff is the current registered proprietor of the said Property. This would be disclosed to anyone who makes land title search of the said Property. [14] Now, how did the said Property end up in the name of the Plaintiff as its registered proprietor? The Plaintiff says he bought it from the Defendants’ father (Mr.Dass) while the Defendants say it was a sham agreement. [15] The first issue in this civil suit is whether the transfer from Mr.Dass to the Plaintiff was bona fide sale and purchase transaction or was a sham agreement, one thing is undisputed; there is no allegation of fraud – for Mr.Dass did sign the sale and purchase agreement and transfer instrument (Form 14A) on his own volition. No duress, no fraud. [16] The second issue in this civil suit is whether the Plaintiff had signed the said PA pursuant to an agreement for him to sell the said Property to the Defendants or pursuant to an acknowledgement that he is a trustee, is an issue that requires viva voce evidence for this Court to determine at a trial. [17] I have no doubt that both issues require a trial for this Court to make findings of facts, and trial dates have been fixed. [18] Meanwhile, have both sides satisfied the legal requirements for interlocutory injunctions to be issued? [19] In numerous reported judgments, the superior courts in Malaysia have discussed the general principles applicable for the issuance of interim injunctions. The most oft-quoted passages are from the judgment of the Court of Appeal in Keet Gerald Francis Noel John v. Mohd Noor @ Harun Abdullah [1995] 1 CLJ 293. Therein, guidance on the general inquiry to be undertaken when hearing an interlocutory injunction application, was worded as follows: “[3] A Judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines: