Toshiba Elevator (Malaysia) Sdn Bhd v Eng Han Engineering Sdn Bhd (WA-24C(ARB)-51-12/2022)

In the proceedings before me, there were 2 Originating Summon’s which were heard together i.e Originating Summons No. WA- 24C(ARB)-44-10/2022 (OS 44) and Originating Summons No WA- 24C(ARB)-51-12 /2022 (OS 51) as the parties were the same and the issues arose from the same set of facts.

OS 44 was in essence, an application by Eng Han Engineering Sdn Bhd (“EHE”) pursuant to inter alia section 33(3), 37(1)(a)(iv) and /or

and/or section 37(1)(b)(ii) and 37(2)(b) of the Arbitration Act 2005 for an order that the Final Arbitration award dated 30.8.2022 (“Award”) delivered by the learned Arbitrator, Ar. Menaha (“Arbitrator”) be set aside in full.

OS 44 was supported inter alia by the following grounds:-

3.1 The Award did not deal with an important point / issue; and/or the Learned Arbitrator had failed to apply her mind to the essential issues arising from the parties’ arguments; and/or wrongly disregarded EHE’s submissions which resulted in the failure to properly deal with the matters in dispute. This is recognised in law as a failure of natural justice.

3.2 The Parties did not have reasonable notice of the Learned Arbitrator’s chain of reasoning and had no reasonable opportunity to address the same; the chain of reasoning had also no nexus to the parties’ arguments.

3.3 There has been a deprivation of giving evidence and/or EHE had been denied from natural justice due to the Learned Arbitrator’s reliance on extraneous evidence not submitted and/or requested.

3.4 The blanket assurances by the Learned Arbitrator that there have been no breaches of natural justice should not be relied upon and the Award must be scrutinized.

3.5 The Learned Arbitrator had relied on and/or applied non-existent clauses in the Award.

3.6 The Award is not a reasoned Award and even if it is (which is denied), the said reasons were inadequate, insufficient, and/or irrelevant.

3.7 Given the breaches of natural justice, the Award is in conflict with the public policy of Malaysia.

On the other hand, OS 51 was filed by Toshiba Elevator (Malaysia) Sdn Bhd [previously known as Ms Elevators Sdn Bhd] (“Toshiba”) to enforce the Award pursuant to inter alia sections 38, 41A and 41B of the Arbitration Act 2005 and to enter judgment thereto with the grounds therein being amongst others that Toshiba has demanded from EHE the sum claimed under the Award.

The backgrounds are as follows:

5.1 By a Letter of Acceptance dated 13.07.2015 (“LOA”), EHE had appointed Toshiba as the nominated sub-contractor for the lift and escalator services for the Residual Main Building and External Works (“Project”) in Kota Kinabalu, Sabah (Sutera Avenue) at a fixed price contract sum of

5.2 The LOA 2 is to be read with the PAM Sub-Contract (Agreement and Conditions of PAM Sub-Contract 2006).

5.3 The Employer, Capitol Avenue Development Sdn Bhd had appointed EHE as the replacement main contractor for the said Project. Meanwhile, Toshiba had been a nominated sub-contractor for the Project prior to the appointment of EHE.

5.4 The Project was originally divided into two sections – OC1 and OC2 (“Original Sections”).

5.5 As the works could not be completed by the contractual completion dates, two certificate of non-completions (“CNCs”) were issued based on the Original Sections – by the Architect to EHE and by EHE to Toshiba.

5.6 On 09.08.2017, an extension of time was granted to EHE for the Original Sections whereby the revised completion dates for both Original Sections were 12.06.2017.

5.7 Thereafter, the Employer had entered into a supplementary agreement dated 28.08.2017 (“SA No.1”) whereby the original sections and completion dates were changed (“New Sections”):- No.

OC1 31.08.2016 OC1 12.06.2017

OC1 31.08.2016

12.

06.2017

OC1 &

31.

10.2016

12.

06.2017

OC2 31.10.2016 OC3 31.10.2016

OC2 31.10.2016 OC4 31.10.2016

5.8 Following the execution of SA No.1, EHE prepared a supplementary agreement to be executed with Toshiba to be in line with SA No.1 (“SA NSC No.1”). EHE had forwarded a copy of the SA NSC No.1 to Toshiba via a letter dated 21.10.2017.

5.9 Despite a reminder to execute the SA NSC No.1 via letter dated 13.11.2017, Toshiba failed, refused, and/or neglected to sign the SA NSC No.1.

5.10 Thereafter, as Toshiba’s works were not completed by the completion dates, five (5) CNCs were issued to Toshiba .

5.11 When the works were eventually completed, 4 certificates of sectional completions (“CSCs”) were issued.

5.12 On 27.5.2019, EHE commenced the arbitration proceedings against Toshiba .

5.13 Essentially, EHE claims the following reliefs by reason of Toshiba’s alleged failure in completing the Sub-Contract Works within the contractual period under the Original Sections or alternatively, New Sections. i. The sum of RM21,200,000.00 being the LAD for the Original Sections; or ii. As an alternative, the sum of RM6,760,000.00 being the Liquidated Damages for the New Sections; or iii. As an alternative, general damages for the Liquidated Damages, to be assessed by the Tribunal.

5.14 Toshiba denies EHE’s claim in its entirety. Toshiba’s defence and counterclaim are premised on the followings:- i. Toshiba contends that if there were any delay in its completion of Sub-Contract Works, it was caused/contributed by:

Delay in the EHE’s Handover of Site which prevented and/or obstructed Toshiba’s timely commencement of works;

Delay in the EHE’s provision of permanent power supply for JKKP’s inspection, leading to delay in issuance of certificate of fitness;

On-site obstructions by EHE and/or its subcontractors. ii. Hence, Toshiba contends that time was set at large and that Toshiba had practically completed its Sub-Contract Works within a reasonable time, particularly where there were no clear agreed completion dates for Toshiba’s Sub-Contract Works. iii. Further, EHE’s claim for liquidated damages is denied as it is unlawful and unproven. iv. EHE had failed to pay the outstanding certified sum and release of the 1st moiety of the retention sum.

5.15 The relief sought in Toshiba’s counterclaim are as follows: i. A declaration that EHE had breached the Sub-Contract with Toshiba; ii. EHE pays a total sum of RM914,538.04 as outstanding certified sum and release of the 1st moiety of the retention sum to Toshiba; and iii. An assessment of damages in respect of the losses suffered in respect of additional overheads due to delay in the completion of the Sub-Contract Works, loss of profit, idling costs, interest and finance charges.

5.16 The operative part of the Award is as follows: “The Claimant shall pay to the Respondent the following:

Sum awarded to the Respondent RM914,538.04;

Costs of the Award and of the Reference Respondent’s cost, including the cost of its Solicitor determined as RM120,000.00; and Arbitrator’s fees, Arbitrator’s expenses and the PAM administrative fee for RM128,000.00;

Simple interest at the rate 5% per annum (CHIEF JUSTICE FEDERAL COURT MALAYSIA Instruction that interest rate to be 5% effective 01.08.2012.) on the amount awarded to the Respondent in this Final Arbitration Award calculated from the date of the appointment of the Arbitrator on 18 September 2019 until the day of the Final Arbitration Award on the awarded sum of RM914,538.04;

Simple interest at the rate 5% per annum (CHIEF JUSTICE FEDERAL COURT MALAYSIA Instruction that interest rate to be 5% effective 01.08.2012.) on the following amounts awarded to the Respondent in this Final Arbitration Award calculated from the date of this Final Award to the date of full realization:

Sum awarded in paragraph 20.1. above; and 2. Costs of the Award and of the Reference Respondent’s cost, including the costs of its Solicitor determined as RM120,000.00 Arbitrator’s fees, Arbitrator’s expenses and the PAM administrative fee as RM128,000.00”

An Award may be set aside in accordance with section 37 of the Arbitration Act 2005 which provides: “1) An award may be set aside by the High Court only if:

the party making the application provides proof that:

a party to the arbitration agreement was under any incapacity;

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it, or, failing any indication thereon, under the laws of Malaysia;

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present that party's case;

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration; or

(vi) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this act from which the parties cannot derogate, or, failing such agreement, was not in accordance with this act; or

the High Court finds that:

the subject-matter of the dispute is not capable of settlement by arbitration under the laws of Malaysia; or

(ii) the award is in conflict with the public policy of Malaysia.”

It is at this juncture thus pertinent to note with section 8 of the Arbitration Act 2005 which states: “No court shall intervene in matters governed by this act, except where so provided in this act.”

Reference is also made to the cases of Master Mulia Sdn Bhd V Sigur Ros Sdn Bhd [2020] 12 MLJ 198 where the Federal Court held: “[53] In the light of the above, we think that the guiding principles on the exercise of residual discretion when an application for setting aside an award is grounded on breach of natural justice may be stated as follows:  (a)first, the court must consider: (a) which rule of natural justice was breached; (b) how it was breached; and (c) in what way the breach was connected to the making of the award;  (b)second, the court must consider the seriousness of the breach in the sense of whether the breach was material to the outcome of the arbitral proceeding;  (c)third, if the breach is relatively immaterial or was not likely to have affected the outcome, discretion will be refused;  (d)fourth, even if the court finds that there is a serious breach, if the fact of the breach would not have any real impact on the result and that the arbitral tribunal would not have reached a different conclusion the court may refuse to set aside the award;  (e)fifth, where the breach is significant and might have affected the outcome, the award may be set aside;  (f)sixth, in some instances, the significance of the breach may be so great that the setting aside of the award is practically automatic, regardless of the effect on the outcome of the award;  (g)seventh, the discretion given the court was intended to confer a wide discretion dependent on the nature of the breach and its impact. Therefore, the materiality of the breach and the possible effect on the outcome are relevant factors for consideration by the court; and  (h)eighth, whilst materiality and causative factors are necessary to be established, prejudice is not a pre-requisite or requirement to set aside an award for breach of the rules of natural justice.

I also refer to Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and anor appeal [2021] 1 MLJ 1 where the Federal Court held: ‘[78] It is important to appreciate that a determination under s 21(3)(b) is one of fact and not of law. In form and spirit, the provision clearly allows the arbitral tribunal to draw on its own knowledge and expertise on any fact in issue which it is acquainted with. What the respondent was suggesting in effect was that there must be actual ‘evidence’ before the arbitral tribunal before it could draw on its own expertise and knowledge in arriving at such finding of fact. [79] It must also be appreciated that the power vested in the arbitral tribunal by s 21(3)(b) to ‘draw on its own knowledge and expertise’ is a power that is conferred by statute and not a power that is derived from some common law principles. But of course common law authorities where relevant provide useful guidance in interpreting the provision.’ [98] In Rotoaira, the arbitrator rejected both the parties’ methods of calculating the percentage of the stumpage. Instead he applied his own methodology of computation beyond what the parties submitted. The court did not find the arbitrator to be in breach of the rules of natural justice just because he failed to give the parties the opportunity to deal with the approach taken by him. [99] In the context of the present case, we do not think that the drawing by the arbitrator on his own knowledge and expertise of the 10–15% no risk profit margin for P&A as being ‘almost a norm’ in the Malaysian construction industry was something that was not reasonably foreseeable or was a significant surprise to the respondent, so much so that the failure by the learned arbitrator to give it the opportunity to submit on the issue had resulted in a serious breach of the rules of natural justice. While it is true that the arbitrator was not expected to know everything about the norms in the Malaysian construction industry, neither is he expected to know nothing at all.

Guided on the law and the principles as above stated, I will now deal with the issues before this Court.

In essence EHE has submitted that there has been a breach of natural justice by the Arbitrator in connection with the Award and begin with the contention that the Arbitrator had failed to apply her mind to the essential issues arising from the parties arguments and/or wrongly disregarded EHE’s submission which resulted in the failure to properly deal with the matters in dispute. To this it was contended that part of the issues considered by the Arbitrator was not pleaded, with the same being the lift installation process, that EHE could not cater access opening, acts of prevention, the debris issue, and the delay analysis.

It was also submitted by EHE that there was a lack of appreciation of material facts and legal principles by the Arbitrator.

I have thus looked at the Award and found that the Arbitrator had inter alia considered the issue of delay in the handover of lift shafts and held after looking at amongst others the Overall Physical Project Percentage Work Progress reported at the site meeting, the claimant’s Design and Review check list in the Main Contract document, the Architects letter of 3.11.2015 and condition 1.4 in the LOA that there was: i. ‘no hand over of the lift shaft, ii. concluded that there was ‘a source of water ingress at the top of the block causing a damp lift shaft’ iii. that the Claimant’s progress of works was already in substantial delay long before the appointment of the Respondent as the Nominated sub Contractor.

I have further found that the Arbitrator had in the Award dealt with the issue of the applicable contract dates for the Respondent and had in doing so perused the Main Contract and the Sub Contract, various letters to the Architect, CNC No 1, CNC No 2, the applications for Extension of Time (EOT) and the Architects Certificates of EOT thereto, Supplementary Agreement no. 1 and why it was not signed by the Respondent. Thereafter the Arbitrator found ‘the Supplementary Agreement... has extended the completion period by one year and changed the sections of the development to suit the Employer as the Developer of the Works and to revise the Liquidated Damages to be imposed on the Claimant in view of the substantial delay in the Claimant’s progress of works’.

The Arbitrator had, in the Award, also considered the issue of site obstructions which included water ingress and debris, the obligation of the Respondent to complete the work under the Nominated Sub contract construction within a period of time and concluding in her findings that it was subject to the Employer, agents and the Main Contractor not committing any act of prevention. The Arbitrator then held ‘…that the Respondent’s scope of work …had to endure ‘acts of prevention’ which have impeded the Respondent’s …necessary sequence of work and the Claimant’s slow progress..have it made it more difficult for the Respondent to complete the works by the dates stipulated in the Sub contract and the revised dates by the Employer which has caused the Respondent’s construction period to be ‘set at large’.

It is further noted from the Award that the Arbitrator had also dealt with:

16.1 the issue of Non Completion Certificates (“CNC’s”) and found inter alia no delay analysis by the Architect after which the Arbitrator held that the Claimants issuance of the CNC’s as being not valid 16.2 the issue of the clearing of debris which she related to the issue of site obstruction 16.3 the issue of protection to completed scope of work where the Arbitrator referred to clause 11.5 of the LOA and that it was for the Employer to ensure that there was no physical damage or vandalism on the M&E installations 16.4 The issue of permanent power supply for testing and commissioning of the Lift and Escalator Works which she held was required so that ‘…the lift and escalator equipment is stable and calibrated to the manufacturer’s specifications for optimum performance before handover…’

I hold that the above findings fall within and/or is directly related and/or is directly connected to the disputes submitted to Arbitration after looking at the Award, the ‘pleadings’ i.e the Statement of Case dated 10.1.2020, the Statement of Defence and Counter Claim dated 21.2.2020, Statement of Reply and Defence to Counter Claim dated 27.5.2020 and the submissions made at the Tribunal and that it relates to inter alia EHE’s contentions of Toshiba’s failure to complete the sub Contract Works within the time stipulated in the sub Contract , and/or the respective Supplementary Agreements referred to therein, EHE and Toshiba’s issues of delay including delay in handover and on site obstructions.

I have in deciding hereto taken guidance from Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd [2019] MLJU 1755 where the Court of Appeal held: “[38] In the textbook by Datuk Professor Sundra Rajoo (special contributor Dr Thomas R Klotzel) entitled ‘UNCITRAL Model Law & Arbitration Rules - The Arbitration Act 2005 (Amended 2011 & 2018) and the AIAC Arbitration Rules 2018’ (Published by Sweet & Maxwell in 2019), the learned author set out the relevant principles in deciding a case under s. 37(1)(a)(iv) as follows (pp. 545 - 551):

37.83 The court will have to ascertain what matters were within the scope of submission to arbitration when exercising its discretion under this section. The court will be guided by the arbitration agreement and other relevant contractual provisions, the notice of request for arbitration, and the pleadings exchanged between the parties. ... “37.85 The Canadian Supreme Court in Desputeaux v. Editions Chouette [1987] Inc58 stated that the mandate of an arbitral tribunal should not be interpreted restrictively limiting it to what is expressly set out in the arbitration agreement but should also cover “everything that is closely connected with that agreement”.”

For the record, it is also my finding that any failure by the Arbitrator with regards inter alia the following facts would not have affected the outcome of her findings:-

19.1 on the lift installation process and that EHE could not cater access opening to the ground floor 19.2 that EHE’s progress of works had been substantially delayed before the appointment of Toshiba as these issues were not in dispute and the dates of late handover of the lift shafts had been agreed upon by the parties.

With regards EHE’s contention that the Arbitrator had not made any finding with regards the physical damage or vandalism on Toshiba’s installations was one of the acts of prevention to Toshiba’s works; I find that the Arbitrator’s decision as to the other ‘acts of prevention’ in the Award being the water ingress and debris would not have changed the outcome of her findings as to the issue of obstructions impeding Toshiba’s works as the Arbitrator had also considered the issue of delay in handing over of the lift shafts, the issue of the delay in the Claimant’s progress of works and the applicable contract dates when arriving at her decision as to the ‘acts of prevention’.

As to the argument by EHE that had it know that the Arbitrator would make reference to the Master Work Programme, EHE would have produced it; I agree with learned counsel for Toshiba that failure to produce the same by EHE is not a ground of natural justice being breached. EHE was free to produce the said Master Work Programme at the Tribunal and could not now fault the Arbitrator for their own actions.

Thus, all in, I find that there has been no departure from the case presented by Toshiba in the Tribunal and that the Arbitrator had not gone on a frolic of her own. I also further hold from my findings above, that that there was no lack of appreciation of material facts and legal principles by the Arbitrator in coming to her findings and that based on the Arbitrator’s findings, she had accordingly dismissed EHE’s claims and thus no liquidated damages were awarded to EHE.

In coming to my decision the same, I had also considered EHE’s submissions of inter alia that Toshiba was not in a position to commence and progress with works, that Toshiba chose not to carry out works when it could have, that time could not be set at large by acts of prevention when there is provision for EOT applications in the contract, Toshiba had not signed the Supplementary Agreement, Toshiba had failed to protect its own works, that Toshiba was a sub contractor of the project prior to EHE’s involvement and that there had been Liquidated Damages paid by EHE to the Employer.

With respect the aforesaid arguments by EHE above relates to findings of facts and it is settled law that this Court cannot and should not interfere with the Award based on the unqualified findings of fact by the Arbitrator which arose from the evidence that is before the Arbitrator, see the Court of Appeal in Brunsfield Project Management Sdn Bhd v Ingeniur Bersekutu Consulting Engineers [2015] MLJU 2203 which had held that: “[41] We are satisfied, under the circumstances that the questions raised by the appellant are essentially one of fact. The learned Judge was correct in not interfering with the arbitrator’s award based on unqualified findings of fact. To do otherwise would in our view go to the root of the settled arbitral principle that the arbitrators are the master of the facts (emphasis mine).We are also satisfied that the learned Judge was also correct in her finding that the arbitrator did not commit any error of law when he determined that the appropriate reasonable fee percentage would be 1.25% of the total construction costs. The arbitrator in our view had full discretion and he had exercised that discretion correctly.”

Even if the Arbitrator had made any errors of law or fact, the authorities on section 37 of the Arbitration Act 2005, shows that these are not grounds for the Court to set aside the Award. I find authority for this in PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR 597 which was also referred to by our Court of Appeal in Huawei Technologies (Malaysia) Sdn Bhd v Maxbury Communications Sdn Bhd [2019] MLJU 1755 where in the former it was held: “…it does not necessarily follow that such an erroneous finding of law can be set aside. Under Art 16(1) of the Model Law, an arbitral tribunal has the power to rule on its own jurisdiction, and by implication, to rule on the underlying issues of fact or law that are relevant to determining whether it has jurisdiction. However, by its own terms, Art 16(3) of the Model Law provides for an appeal to the court if the arbitral tribunal rules that it has jurisdiction, but not when it rules that it does not have jurisdiction.”

In referring to the case of PT Asuransi Jasa Indonesia (Persero), the Court of Appeal Huawei Technologies (Malaysia) Sdn Bhd (supra) held as follows: “37.109 Applications for setting aside purportedly founded on erroneous interpretations of law and fact do not fall within the purview of section 37(1)(a)(iv) and (v) of the AA 2005. The Singapore Court of Appeal in PT Asuransi Jasa Indonesia (Persero) v. Dexia Bank SA75held that an arbitral tribunal, which erroneously declines jurisdiction, does not exceed its mandate in the meaning of Article 34(2)(a)(iii) of the UNCITRAL Model Law. The mere fact that the decision is wrong does not justify its setting aside under Article 34(2)(a)(iii).”

On the issue of EHE not been given an opportunity to challenge the Arbitrator’s chain of reasoning, I hold that the Arbitrator by drawing on her own experience had not acted unreasonably as the same was foreseeable and that the Arbitrator is not expected to consult the parties on her thinking process. This also could not be said to be a significant surprise to EHE, so much so that the failure by the Arbitrator to give it the opportunity to submit on the issue had resulted in a serious breach of the rules of natural justice. See the New Zealand case of Trustees of Rotoaira Forest Trust v Attorney-General [1999] 2 NZLR 452.

Authority for an Arbitrator drawing on her own experience can also be found in Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and anor appeal [2021] 1 MLJ 1 where the Federal Court held: ‘[78] It is important to appreciate that a determination under s 21(3)(b) is one of fact and not of law. In form and spirit, the provision clearly allows the arbitral tribunal to draw on its own knowledge and expertise on any fact in issue which it is acquainted with. What the respondent was suggesting in effect was that there must be actual ‘evidence’ before the arbitral tribunal before it could draw on its own expertise and knowledge in arriving at such finding of fact. [79] It must also be appreciated that the power vested in the arbitral tribunal by s 21(3)(b) to ‘draw on its own knowledge and expertise’ is a power that is conferred by statute and not a power that is derived from some common law principles. But of course common law authorities where relevant provide useful guidance in interpreting the provision.’ … [98] In Rotoaira, the arbitrator rejected both the parties’ methods of calculating the percentage of the stumpage. Instead he applied his own methodology of computation beyond what the parties submitted. The court did not find the arbitrator to be in breach of the rules of natural justice just because he failed to give the parties the opportunity to deal with the approach taken by him. [99] In the context of the present case, we do not think that the drawing by the arbitrator on his own knowledge and expertise of the 10–15% no risk profit margin for P&A as being ‘almost a norm’ in the Malaysian construction industry was something that was not reasonably foreseeable or was a significant surprise to the respondent, so much so that the failure by the learned arbitrator to give it the opportunity to submit on the issue had resulted in a serious breach of the rules of natural justice. While it is true that the arbitrator was not expected to know everything about the norms in the Malaysian construction industry, neither is he expected to know nothing at all.

In looking at the Award, this Court must stress that it does not comb the Award microscopically as stated in Soh Beng Tee & Co Pte Ltd v Fairmount Development Sdn Bhd [2007] 3 SLR 86, a Singapore case of which I adopt on this point where the Court therein held: “(f) Each case should be decided within its own factual matrix. It must always be borne in mind that it is not the function of the court to assiduously comb an arbitral award microscopically in attempting to determine if there was any blame or fault in the arbitral process; rather, an award should be read generously such that only meaningful breaches of the rules of natural justice that have actually caused prejudice are ultimately remedied.”.

30.

From the above, this Court is of the view that the various contentions raised by EHE are merely an attempt to review the merits of the Award and would not, in my view, have affected the outcome of the Tribunal.

At the end of the day, this Court holds that there has been no breach of natural justice as alleged by EHE. I also hold, in the circumstances, that there has been no breach of public policy vis a vis the grounds in the Award.

I therefore dismiss OS 44 with costs and grant Order in Terms for prayers 2 (a) to (e) in enclosure 1 of OS 51. Enclosure 5 in OS 51 is dismissed without cost. Dated: 06th day of June 2023 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIF (suit OS 44) / DEFENDANT (suit OS 51): Foo Joon Liang and Tasha Lim Yi Chien (Messrs Gan Partnership] COUNSEL FOR THE DEFENDANT (suit OS 44) / PLAINTIFF (suit OS 51): Simrenjeet Singh A/L Baldev Singh and Tay Por Hai (Messrs Simrenjeet Tay & Co.]