Wonderful Compound Sdn. Bhd. (dalam Likuidasi) v Man Plug Industries Sdn. Bhd. (JA-22NCC-71-11/2019)

Defendan di atas hendaklah dalam tempoh 7 hari daripada tarikh Perintah ini membuat satu affidavit menyatakan sama ada dokumen yang dinyatakan seperti berikut berada, atau pernah pada bila-bila masa berada, dalam milikan, jagaan atau kuasanya, dan sekiranya ketika itu tidak berada dalam milikan, jagaan atau kuasanya bila dia melepaskannya dan apa yang telah terjadi padanya:-

Purchase Order No.: 0293/13 and Delivery Order 0149349

Purchase Order No.: 0299/13 and Delivery Order 0149350

Purchase Order No.: 0295/13 and Delivery Order 0149351 [3] The sealed DO was sent to the Defendant on 12.4.2022. However, the Plaintiff claimed that the Defendant failed to produce the documents stated in the DO (“Documents”) to the Plaintiff until today. Instead, the Defendant filed an Additional Affidavit affirmed on 13.4.2022 in Enclosure 119 wherein the Defendant stated that the Documents were not and had never been in its possession, custody or power. Therefore, the Defendant contended that the issue of releasing the Documents did not arise. [4] In addition, the Defendant also invited the Plaintiff or its solicitor to the Defendant’s office on 5, 6 and 9.5.2022 between 2.00 pm to 5.00 pm to inspect any document in its possession, custody or power. _____________________________________________________________________________________________ 3 [5] Unsatisfied with the Defendant’s action, the Plaintiff filed this application for Peremptory Order (“PO”) against the Defendant requiring it to release the Documents as to full compliance of the DO and in the event the Defendant failed to comply with the PO, the Defendant’s Amended Defence to be struck out and judgment be entered accordingly in favour of the Plaintiff. Law on Peremptory Order [6] O. 24 rule 16 of the ROC provides – Failure to comply with requirement for discovery 16.

If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. Finding of this court [7] Before this court considers whether the Defendant had failed to comply with the DO, it is incumbent upon this court to scrutinize what was the actual wording and intention of the DO. [8] Reading the DO, I find that the wordings and the intention are plainly crystal clear and have no ambiguity at all. The DO only requires the Defendant, within 7 days from the date of the Order, to make an affidavit _____________________________________________________________________________________________ 4 stating whether the Documents are or have been at any time, in its possession, custody or control. [9] As to comply with the DO, the Defendant later filed the Additional Affidavit in Enclosure 119 stating that the Documents were not and had never been in its possession, custody or power. Thus, I find that the Defendant’s action in filing the affidavit is sufficient to suggest that the DO had been complied with. [10] By insisting the Defendant to release the Documents when the DO only requires the Defendant to state whether the Documents are in its possession, custody and control, I find that the Plaintiff is completely misconceived in reading the DO. The Plaintiff cannot push the Defendant to do something beyond the DO. Conclusion [11] Having considered the facts and the circumstances of the present case, I find that the Plaintiff failed to establish to the court that there is any breach, violation or infringement of the DO by the Defendant. Thus, I dismiss the Plaintiff’s application in Enclosure 120 with costs. Dated: 6.11. 2022 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judicial Commissioner, Johor Bahru High Court _____________________________________________________________________________________________ 5 Counsels: For the Plaintiff – Cheng Theng Keat (Chung Tze Yau with him); Messrs Cheng, Lee & Goh For the Defendant - Sukhwinder Singh a/l N Mahinder Singh; Messrs Sukhwinder Singh N Mahinder Singh