Xorix Sdn. Bhd. (Penerima & Pengurus Dilantik) v Jardin Pharma Berhad (WA-24NCC-607-12/2024)

Dalam perkara mengenai Debentur-debentur bertarikh 30.08.2006,

05.2009 dan 14.10.2009 Dan Dalam perkara mengenai Aturan 7, 28, dan 92 Kaedah-kaedah Mahkamah 2012 Dan Dalam perkara mengenai Seksyen 383, Seksyen 384 dan Jadual 6 Akta Syarikat 2016 ANTARA XORIX SDN. BHD. (PENERIMA & PENGURUS DILANTIK) [No. Syarikat : 200401020852 (659356-M)] … PLAINTIF Page 3 of 12 DAN JARDIN PHARMA BERHAD [No. Syarikat : 202101017872 (1418172-K)] … DEFENDAN

This is my decision in respect of the Plaintiff’s application via Enclosure 1, brought by the Receivers and Managers (“R&Ms”) of the Plaintiff, Xorix Sdn Bhd (“Xorix”), seeking declaratory relief under Section 384 of the Companies Act 2016 (“this Application”).

The Plaintiff posed four legal questions in this Application concerning the effect of a Tenancy Agreement dated 1.7.2023 between Yayasan Pembangunan Usahawan Terengganu (“YPUT”) and the Defendant, Jardin Pharma Berhad, and whether the said tenancy impacts the R&Ms’ ability to manage the Plaintiff’s business and assets.

The questions posed in this Application are as follows: i) “Whether the Tenancy Agreement dated 01.07.2023 signed by the Defendant and YPUT for the premises located at Lot 1, 2, 3 & 4, Kawasan Perindustrian Batu 7, 23000 Dungun, Terengganu Darul Iman (“the Premises”) prevents the Receiver and Manager (“R&Ms”) from managing the business operations, transactions, Page 4 of 12 marketing, manufacturing, and/or activities related to pharmaceutical products involving Xorix Sdn Bhd, including but not limited to “manufactured goods” situated within the Premises, which are currently operated by the Defendant?” (own emphasis added) ii) Whether the R&Ms have the right to take possession and/or take any steps to take possession of the Premises? iii) Whether the R&Ms have the right to take possession and/or take any steps to take possession of the Premises?” iv) Whether the R&Ms’ act of entering the Premises amounts to trespass when the appointment of the R&Ms have been affirmed through Court Orders dated 12.12.2023 and 15.11.2024?”

Question (i) above constitutes the central issue in this Application, with the other questions being consequential upon the determination of Question (i). A] QUESTION (i) IS NON-JUSTICIABLE

The first and central issue is that Question 1, as framed by the Plaintiff, is non-justiciable. The question is somewhat ambiguous, it seeks an abstract or hypothetical ruling on whether the R&Ms can manage the Plaintiff’s business from the Premises despite the Defendant’s tenancy.

The question lacks the minimum degree of clarity necessary for the Court to determine what legal or factual controversy it refers to. The language used is vague and broad; it does not identify any specific act of obstruction, nor any legal entitlement that is said to have been infringed.

The Court’s role is to adjudicate actual legal controversies grounded in specific facts and rights.

It is not the role of the Court to interpret and reconstruct an erroneously framed legal question. Where a question is incoherent and fails to present a justiciable controversy, the Court will not engage in speculative interpretation.

As posed, Question 1 lacks the necessary factual and legal context to allow a definitive ruling. It does not assert a concrete breach of law or identify an actual act of obstruction by the Defendant that can be properly adjudicated.

Courts will not act in vain or issue declarations in the abstract (Bar Council Malaysia v. Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773).

As Question (i) is non-justiciable and incapable of being answered, the Court must likewise decline to address the other Page 6 of 12 Questions in this Application, all of which hinge upon the determination of Question (i). B]

Based on the documentary evidence, the Court finds that a valid Tenancy Agreement was entered into between YPUT and the Defendant on 1.7.2023.

This agreement remains effective. YPUT, as the registered proprietor of the premises, is entitled to deal with its land, including the grant of tenancy, at its discretion. The Plaintiff has no privity with that agreement and no standing to challenge it in these proceedings.

Accordingly, the Defendant is recognised as the lawful tenant of the premises. C] BUSINESS OPERATIONS OF XORIX – DISPUTED AND

The Plaintiff seeks to assert that it is being prevented from managing its (Xorix) business “situated within the Premises”.

However, the question of whether the Plaintiff’s business was or is being operated from the premises is disputed, and the Plaintiff has not shown that the business of the Plaintiff (Xorix) is being run or operated on the Premises at present.

Having said that and in any event, these matters cannot be determined via affidavit evidence.

Even based on the affidavits in this Application, it has not been demonstrated: i) That the Plaintiff (Xorix) is still in operation (conducting business), despite being wound up on 30.5.2024, although the Winding Up Order was subsequently stayed upon application by the Petitioner itself. ii) That the Plaintiff (Xorix) was, and continues to be, operating its business from the Premises.

In the absence of evidence to the contrary, the Defendant is presumed to be in occupation of the Premises by virtue of the Tenancy Agreement.

Further, the Plaintiff has failed to explain how it (Xorix) could have been operating its business, if indeed it was still in operation, from the Premises while the Defendant remains in occupation thereof.

This further reinforces that the present action is not suitable for determination by way of the Originating Summons procedure (Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd Page 8 of 12 [1992] 2 MLJ 212; Aqmal Dakhirrudin v. Azhar Ahmad & Anor [2019] 1 LNS 492).

Since the Plaintiff insists that this dispute can be determined by way of Originating Summons, they run the risk of having this Application dismissed if the dispute cannot be resolved on affidavit evidence alone.

This is a conscious choice made by the Plaintiff, and it is not for the Court to provide assistance in this regard.

It is noted that, often, though not in the present case, a plaintiff faced with disputed facts in a matter commenced by Originating Summons would invite the Court to convert the proceedings into a Writ action pursuant to the Court’s powers under Order 28 Rule 8(1) of the Rules of Court 2012. However, with respect, I do not think it is for the Court to extend assistance in circumstances where the plaintiff has chosen, and continues to maintain, that the matter was rightly commenced by Originating Summons. D]

The issues in this application overlap significantly with those in Suit No. WA-22NCC-328-05/2024 (“Suit 328”), including the tenancy arrangement, possession of the premises, and the status of the R&Ms.

To allow this matter to proceed in parallel would result in duplication of judicial effort, risk of inconsistent findings, and procedural unfairness. The Court must guard against multiplicity of proceedings and forum fragmentation, particularly where the same factual matrix is under consideration elsewhere in active litigation (Penang Port Commission v. Kanawagi s/o Seprumaniam [2008] 6 MLJ 686). E] CONDUCT OF THE R&MS AND ACCESS TO THE

While the R&Ms assert that they require access to secure charged assets, the Court notes that the Premises are not part of the charged property under the Debentures.

Moreover, the Defendant has issued repeated written requests for the R&Ms to collect any charged assets located at the Premises. These requests were not acted upon.

The R&Ms cannot now invoke non-access as prejudice when they have consistently failed to avail themselves of the opportunity to remove those assets. F]

In the circumstances, this Application is dismissed.

On the issue of costs, the Defendant sought a personal costs order against R&Ms, alleging reprehensible or oppressive conduct. It was submitted that an award of costs against the Plaintiff, Xorix, would ultimately prejudice the Defendant, who is a substantial shareholder of the company. However, this issue was not ventilated during the substantive hearing and was only raised after I had dismissed Enclosure 1. As such, there were insufficient submissions to support the request.

While I acknowledge that there is some basis for the request in light of the prior conduct of the R&Ms, as previously highlighted during submissions, the material before me is insufficient to make a definitive finding.

In the circumstances, I make no order as to costs. Dated this 11th day of July, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 11 of 12 COUNSEL FOR THE PLAINTIFF : Dato’ Amelda Binti Md Din (Sitti Salehah Binti Bura Era and Abu Haziq Bin Abu Talib Mohamad together with her) Messrs Amelda & Partners No. 37G, Medan Bukit Indah 2, Taman Bukit Indah, 68000 Ampang, Selangor Tel: 03-42955799 Emel: officehq@ameldaandpartners.law COUNSEL FOR THE DEFENDANT : Ahmad Ezmeel Bin Ahmad Tarmizi (Ahmad Zakiuddin Bin Adnan together with him) Messrs Ezmeel & Co. No. 40-1, Jalan Telawi, Bangsar Baru, 59100 Kuala Lumpur Tel: 03-22013350 Emel: general@ezmeelco.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 28 Rule 8(1) Companies Act 2016 ▪ Section 384

Aqmal Dakhirrudin v. Azhar Ahmad & Anor [2019] 1 LNS 492

Bar Council Malaysia v. Tun Dato’ Seri Arifin bin Zakaria & Ors (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773

Penang Port Commission v. Kanawagi s/o Seprumaniam [2008]

Ting Ling Kiew & Anor v. Tang Eng Iron Works Co Ltd [1992] 2