Supatra Tavi A/P Subramaniam v Supatra Tavi A/P Subramaniam (BA-22NCvC-272-07/2022)

On 12.7.2022, the Plaintiff, in her capacity as the wife and nominee of her husband Datuk Apparao a/l Apana, filed this action against the Defendant, a company in liquidation pursuant to winding-up order of the Court, for specific performance of and ancillary reliefs in connection with a Sale and Purchase Agreement dated 24.2.2010 (“the SPA”) in respect of a property descried as penthouse unit at Parcel No. A-36-03, No. Unit 03, Tingkat 36, Jenis Penthouse, Bangunan Crest Residence, The Crest Jalan Sultan Ismail, Kuala 2 Lumpur (“the said Property”) which was allegedly signed between the Defendant as the vendor and the Plaintiff, as purchaser nominated by Dato’ Apparao [see paragraph 6.19 of the Amended Statement of Claim in Enclosure 8].

It was also alleged by the Plaintiff that by a Credit Note dated 25.2.2010 (“the Credit Note”] issued by the Defendant to the Plaintiff, the full purchase price for the said Property was confirmed to have been paid [see paragraph 6.20 of the Amended Statement of Claim]. According to the Plaintiff, this payment of purchase price for the sale and purchase of the said Property was a contra payment arrangement for the alleged services rendered by Datuk Apparao to the Defendant and/or related companies.

The Plaintiff’s claims and allegations were denied by the Defendant [see Amended Statement of Defence in Enclosure 9].

Shortly before the filing of the original Defence (Enclosure 6), the Defendant issued a Third Party Notice on 19.8.2022 against Dato’ Sri Shamir, the Third Party (see Enclosure 5).

In the Defendant’s Statement of Claim against the Third Party in Enclosure 60, the Defendant pleaded breach of duties on the part of the Third Party in relation to handling of and dealings with the said Property and claimed for indemnity against the Third Party in the following words in paragraphs 16 and 17 thereof: “16. In the circumstances, in the event the Plaintiff’s claim is allowed, the Third Party is liable to indemnify the Defendant for all loss, damage, interest, cost and expenses which the Defendant may incur or suffer arising from the Third 3 Party’s breach of duties and/or to defend the Plaintiff’s claim herein.

WHEREFORE, the Defendant claims against the Third Party, in the event the Defendant is made liable to the Plaintiff’s claim herein, the following:

17.1 Sum of RM3,222,600.00 being the value of the Property stated in the 1st SPA;

17.2 Sum of RM1,498,288.27 being the LAD claimed by the Plaintiff together with interest ….;

17.3 Costs of the original action and third-party proceedings on full indemnity basis; and 17.4 Such other and further reliefs ….” Orders made on 9 November 2023

The 9 November 2023 session before this Court was fixed after the parties notified the Registrar that they wanted to withdraw their respective claims in the action and in the third party proceeding.

On 9 November 2023, the Plaintiff’s counsel informed this Court that as the Plaintiff’s key witness Datuk Apparao passed away recently and the Plaintiff has no other supporting witness to testify for the Plaintiff’s case, the Plaintiff decided to withdraw her claim and action. In response, the Defendant’s counsel had no objection for the Plaintiff’s withdrawal of her action but pressed for costs of action in the amount of RM20,000 and also for no liberty to file afresh. The Defendant’s counsel applied to withdraw the Third Party Notice, and asked that there be no costs on the third party proceeding. The Third Party’s counsel had no objection to the withdrawal of the Third Party 4 Notice but asked for costs of third party proceeding in the sum of

After hearing the parties’ respective counsel and their oral applications for withdrawal and for costs, this Court on 9 November 2023 made the following orders:

The Plaintiff’s action against the Defendant is struck out with no liberty to file afresh;

The Plaintiff shall pay costs of RM5,000 to the Defendant, subject to allocator;

The Defendant’s Third Party Notice is struck out with no liberty to file afresh; and

The Defendant shall pay costs of RM1,500 to the Third Party, subject to allocator. Appeal by the Defendant

Unhappy with the terms of the said Order dated 9 November 2023, the Defendant has filed an appeal to the Court of Appeal.

From the contents of the Notice of Appeal, it appears that the Defendant is unhappy with “no liberty to file afresh” as a term of striking out the Defendant’s Third Party Notice consequential upon the Defendant’s withdrawal of the Third Party Notice. Evaluation, assessment and clarification by this Court

As summarised in paragraph 5 above, the sole and entire basis of the Defendant’s indemnity claim against the Third party in the third party proceeding is contingent upon the Defendant being held liable 5 to the Plaintiff in the Plaintiff’s action. The expression “in the event the Plaintiff’s claim is allowed” in paragraph 16 and the expression “WHEREFORE, the Defendant claims against the Third Party, in the event the Defendant is made liable to the Plaintiff’s claim herein, the following:” in the opening sentence of paragraph 17 of the Defendant’s Statement of Claim against the Third Party make this point crystal clear.

As the Plaintiff has withdrawn the Plaintiff’s claim and action against the Defendant with no liberty to file afresh, the contingency or pre-condition which formed the Defendant’s sole basis of indemnity claim in the third party proceeding cannot possibly happen in future.

In the premises, there is no valid reason for the Defendant to have any liberty to file afresh its indemnity claim against the Third party for any liability which the Court holds against the Defendant in respect of the Plaintiff’s claim and action.

Of course, if the Defendant has any cause of action or perceived cause of action against the Third Party in respect of any matter or cause which is not part of the Plaintiff’s claim in the Plaintiff’s suit herein or which is unrelated to the said Property, such other cause(s) of action will not be barred or affected by the term of “no liberty to file afresh” in connection with the striking out of the Third Party Notice herein. Dated this : 20th December 2023 6 Signed ….…................................................................ TEE GEOK HOCK JUDGE HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors:

For the Plaintiff : Jaya Purushoturan & JJ Naidu a/l RJ Naidu Messrs JJ Naidu & Rakan-Rakan (Shah Alam)

For the Defendant : CS Mong & Medha Ong Ann Ting Messrs Lee HIshamuddin Allen & Gledhill (Kuala Lumpur)

For the Third Party : Avinder Singh Gill a/l Ranjit Singh Messrs Avinder Gill Chambers (Kuala Lumpur)