XXXX v XXXX (JA-22NCvC-64-05/2019)

JEFFA HOLDINGS SDN. BHD (No. Syarikat: 330153-A)

JEFFA SERVICES & HOSPITALITY SDN. BHD. (No. Syarikat: 114266-M) …PLAINTIF-PLAINTIF

PUNCAK BEBAS SDN. BHD. (No. Syarikat: 282540-V)

REVOLUSI MEGAH SDN. BHD. (No. Syarikat: 674149-T)

BOHARI BIN KATAN (No. K/P: 591209-01-5033) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Background facts [1] This case originated from a triangle debt collection between the 1st Plaintiff, one company known as Pacific Oils and Fats Industries Sdn Bhd (hereafter refers to as “POFI”) and the 2nd Defendant. The 2nd Defendant owed the 1st Plaintiff a sum of RM2,000,000.00. The 1st Plaintiff in turn, 17/04/2025 10:37:46 JA-22NCvC-64-05/2019 Kand. 95 owed POFI a similar amount. Arising from inability to pay, a winding-up proceeding was initiated by POFI against the 1st Plaintiff. [2] Prior to the above, the 1st Plaintiff was awarded a contract by MINDEF for the upgrading of the PLKN Camp. The 1st Defendant was appointed as the sole contractor to finance and carry out the upgrading work. This task was then delegated by the 1st Plaintiff to the 2nd Plaintiff, with the 1st Defendant continuing as the sole contractor, with the signing of an agreement dated 23.12.2015. [3] The case centers on alleged fraud when representations were made by the Defendants to the Plaintiffs arising from the terms in this agreement (hereafter refers to as “the said agreement”) including withdrawal of monies by the Defendants from the Plaintiff’s bank account without the Plaintiff’s approval. The Defendants contend that they were deductions of profits owed by the Plaintiff to the Defendants under the said agreement. [4] The said agreement in clause 6.2 incorporated the said sum owing to the 1st Plaintiff being RM2,000,000 recognized as outstanding debt. It is by virtue of the said agreement apart from the winding-up order, that the 1st Plaintiff was substituted by the 2nd Plaintiff. It is significant to have sight of the background correspondences between the 1st Plaintiff and the 2nd Defendant to appreciate the history that moved this suit by the Plaintiffs (see: Common Bundles of Documents CBODs enclosure 37). [5] There are other terms arising from this upgrading contract of the PLKN Camp novated by the 1st Plaintiff to the 2nd Plaintiff which saw the 1st Defendant appointed as the sole contractor to finance and carry out the said work. The said agreement also permits the 1st Defendant to take over the management of the accounts of the 2nd Plaintiff’s bank, OCBC subject to certain terms and conditions. [6] The consideration in relation to the said agreement was for the 1st Defendant via the 2nd Defendant to settle the outstanding debts of the 1st Plaintiff for RM2,000,000.00 owing to POFI (see: letter from counsel for the 1st Plaintiff in Part A enclosure 37 CBODs at page 30 pdf). However, only an initial sum of RM250,000.00 was paid by the 1st Defendant. [7] Despite this failure, the OCBC accounts of the 2nd Plaintiff’s which was within the management and control of the 1st Defendant from January 2016 till December 2016, saw a sum of RM1,750,000 withdrawn but was not utilized by the Defendants to settle the RM2,000,000.00 debt of the Plaintiffs. The Plaintiffs hence contended that there was a breach of the said agreement by the Defendants arising from conspiracy to defraud the Plaintiffs. Findings of facts: History of the business relationship [8] The 2nd Plaintiff agreed to appoint the 3rd Defendant as signatory to the cheques of the 2nd Plaintiff’s account. The Plaintiff asserted this was done on a representation made by the Defendants that the 2nd Defendant will, via the 1st Defendant, pay the RM2,000,000.00 to the 1st Plaintiff (see: clause 8.5 of the said agreement at page 40 pdf, letter from solicitor for the 1st Plaintiff to the 2nd Defendant at page 18 pdf specifying this sum and the police report page 63 pdf in Part A CBODs enclosure 37). The payment will be made to POFI through the 2nd Plaintiff, to be channeled to the 1st Plaintiff. [9] It is important to note that the 2nd Defendant although not named as party in the said agreement, did not file any application to strike out the suit. Instead, only one common statement of defence was filed by all the three Defendants in this case. In short, it can only mean that they were all acting in concert as supported by the correspondences between the respective counsel for the Plaintiffs to the counsel for POFI and counsel for the 2nd Defendant (see: enclosure 37 CBODs at page 16 pdf). [10] The statement of defence and the agreed facts in enclosure 35 reveal that the 1st and 2nd Defendant carry the same business address and registered address. Thus, the inevitable inference is that they are one and the same entity albeit carrying out business under different names. [11] Counsel for the 2nd Defendant Messrs. Allen Loh in fact via a letter dated 7.1.2017 to OCBC Bank (see: Defendant’s Bundle of Document enclosure 67 at page 16 pdf) represented the fact that they acted for the 3rd Defendant. The letter was to inquire why the 3rd Defendant was removed as authorized signatories to the 2nd Plaintiffs’ account. [12] Furthermore, the term used in the said agreement dated 23.12.2015 for the RM2,000,000.00 amount as “outstanding debt” could only mean an acknowledgment of the debt owed by the 1st Plaintiff to POFI. This also means that all the Defendants were part of the same entity. The reason being, a large sum was already outstanding and this was acknowledged by the 1st Defendant when signing the said agreement. An “outstanding debt” must only mean sum not paid and already accruing at the time of signing of the agreement. [13] The Plaintiffs in their Statement of Claim pleaded that the business relationship between the 1st Plaintiff and the 1st Defendant started earlier in 2005, initiated by an agreement also pertaining to works related to the PLKN Camp. The business venture resulted in some financial difficulty on the 1st Plaintiff that resulted in a joint agreement with the 1st Defendant towards settlement of any sum due. [14] The joint agreement also saw the operation of the PLKN Camp handed to the 1st Defendant to enable any settlement by the Ministry of Defence, be handed to the 1st Defendant. The obligations in the joint agreement was finalized in 31.12.2013 and the said PLKN camp be handed back to the 1st Plaintiff. The Defendants in their Statement of Defence, denied these facts as extracted by this Court and produced in the above para 13 and 14 of this judgment. This Court is of the view, rightly so as no documents were annexed in the CBODs to support the Plaintiffs’ version of the story. [15] With this denial, the reference to the 23.12.2015 clause as “outstanding debt” for the sum RM2,000,000.00 can only mean the debt owed by the 2nd Defendant to the 1st Plaintiff and nothing else. The said agreement dated 23.12.2015 between the 2nd Plaintiff and the 1st Defendant where the 1st Defendant was appointed by the 2nd Plaintiff as the sole contractor to finance and complete the upgrading of the buildings and infrastructure of Kem PLKN at Teluk Sari, Mersing, Johore provide for the contract sum being RM6,295,095.05 (see: clause 5.1 of the said agreement in enclosure 37 CBODs at page 37 pdf). [16] If the version of the Plaintiff is true (which is not, in the absence of any other supporting documents) and due to the winding up action against the 1st Plaintiff by POFI (which a stay was subsequently obtained by the 1st Plaintiff on 3.2.2016: please see enclosure 37 at page 35), the said role played by the 1st Plaintiff in the upgrading contract of Kem PLKN was transferred to the 2nd Plaintiff when the 2nd Plaintiff became the signatory to the said agreement. [17] This also means the RM2,000,000.00 (RM2 million) debt owed to the 1st Plaintiff by the 2nd Defendant, now acquired by the 2nd Plaintiff (see: correspondences from counsels for POFI and the 1st Plaintiff and the letter from MINDEF to the 2nd Plaintiff in enclosure 37, all are in Part A). The Defendants in their statement of defence, unfortunately omitted to explain this relevant history. Furthermore, the said agreement made reference to a Letter of Award dated 2.6.2015. (see: clauses 6.1). This, moved this Court to hold that the said agreement to be treated as a fresh and new obligations between the 2nd Plaintiff and the 1st Defendant. [18] Clause 3.1 also limits the objective of the agreement towards settlement of the Contract Debts in financing the said PLKN Project at the present time or in the future and thereafter. Nothing was mentioned to explain the “outstanding debt” of RM2,000,000.00. For this reason, the said agreement must be read to indicate a limited scope of contract debt only for the sum of RM6,295,095.05. [19] Clause 6 to 7 of the said agreement to this Court’s finding, provides for the settlement of monies (now becomes the 2nd Plaintiff’s debt) owed to the 1st Defendant upon receipt of payment from MINDEF. The amount RM2,000,000.00 said to be the amount of debt owing to the 2nd Plaintiff by the 1st Defendant as stipulated in clause 6.2 as outstanding debt. Although, this sum is inclusive in the said agreement making the total amount of contract sum referred to in the said agreement as “the contract debt” for the sum of RM8,295,095.05. The terms of the said agreement [20] Clause 3.2 of the said agreement (see: enclosure 37 CBODs at page 35 pdf) provides as follows: “3.2 Further the parties hereby agree to enter into this agreement for the objective and purpose of enabling JSHSB (2nd Plaintiff) to settle in full the Contract Debt hereinafter referred to and due and owing to PBSB (2nd Defendant) from JSHSB, as set out in Clause 6 and its sub-clauses below stated and thereafter, to enter into a Profit-Sharing Scheme from moneys to be earned or received as rental payments from Mindef either directly or indirectly through any other financial institution for the running of the said PLKN Project”. [21] In addition to this, clause 3.3 emphasizes on the Profit-Sharing Scheme which will take effect as follows: “3.3 The parties hereto agree that the upon full payment made by JSHSB of the Contract Debt referred to hereinafter, the Profit-Sharing Scheme shall automatically take effect in respect of the division of profits earned from the operation of the said PLKN Project even beyond the expiry date until JSHSB exercises its right under clause

9.3 to buy-out the said majority share of PBSB”. [22] Clause 3.4 again reiterate the purpose of the agreement when it states as follows: “3.4 Both parties hereby agree that this Agreement is entered for the purpose of securing the full repayment of the Contract Debt referred to herein, due to PBSB as well as the sharing of profits (Profit- Sharing Scheme) in the running or operation of the said PLKN Project as stated in clause 9 and its sub-clauses below stated thereafter”. [23] Clauses 6 and 9 including clause 7 respectively deal with the sum due and are as follows: “Amount Due to PBSB Both parties agree that the following sums shall constitute the total outstanding amounts or indebtedness due and owing from JSHSB to PBSB under this Agreement excluding any future debts incurred as a result of financing, operating and managing the said PLKN Project and profits to be earned from rentals or payments received from Mindef either directly or indirectly through any other financial institutions involved for the running of the said PLKN Project.

6.1 The Contract Sum of RM6,295,095.04 payable to PBSB from JSHSB excluding any sums due under variation orders in respect of the upgrading works to be undertaken by PBSB pursuant to and more particularly set out in the Letter of Award dated 2.6.2015 issued by JSHSB and any further agreement thereto in respect of upgrading works of the said PLKN Project.

6.2 The outstanding debt agreed at RM2,000,000.00.

6.3 Overdue interest calculated at one point five per centum (1.5%) per month on RM8,298,095.04 being the aggregate sums of the outstanding debt and contract sum, on a reducing balance scale, upon receipt of each payment made by JSHSB on account with effect from the date of this Agreement to date of full payment of the sum of RM8,295,095.04 which overdue interest shall be quantified at the end of payment of such sum.

Contract Debt The sums stated in clauses 6.1 to 6.3 aforesaid including those amounts of a recurring nature such as interest on overdue sums shall collectively be referred to as the Contract Debt, to be fully paid or settled by JSHSB.

JSHSB’s Undertaking and Covenants …

8.4 All moneys or sums received which are due and payable from Mindef or the Government of Malaysia shall be paid into the Bank account, Account No. XXXX of OCBC Bank (Malaysia) Berhad, Muar. This account shall be declared and informed to Mindef or any other financial institution in respect of the receipt of all payments, funds, bank or loan facilities, financing or moneys in connection with the said PLKN Project or any other moneys received to JSHSB’s credit from those bodies.

8.5 To allow at all times and on demand, the said PBSB and its directors or other officers, servants and/or agents full access, permission, authority and mandate to request, inspect and verify any and all of JSHSB’s bank accounts including the said Bank Account, trading, cheque and account books, ledgers, statements, files, correspondence and other documents pertaining but not limited to its business operations, contracts, assets and liabilities in respect of the said PLKN Project.” [24] All the above clauses in the said agreement and the correspondence heading dated 10.12.2015 (see: page 17 pdf enclosure 37) which reads “Re: Settlement of RM2,000,000.00 by Revolusi Megah Sdn Bhd on behalf of Jeffa Holdings Sdn Bhd for the Purpose of Stay of Winding Order dated 7.8.2014 against Jeffa Holdings Sdn Bhd by Pacific Oils & Fat Industries Sdn Bhd” support the claim by the Plaintiffs that the said RM2,000,000.00 remained and continued to be owing by the 2nd Defendant at the time of signing by the 1st Defendant, of the said agreement. [25] Interestingly also, having sight of the cause papers particularly the counter-claim by all the Defendants shows a common relief seeking for the sum of RM2,000,000.00 to be paid by the 2nd Plaintiff to the 1st Defendant. Yet this, however contradicts with the Defendants’ Summary of Case enclosure 68 where the said sum RM2,000,000.00 was sought by all the Defendants. This Court’s finding is that no evidence was adduced to support this counter-claim and no explanation as to why it was taken as also outstanding in favor of the 2nd Defendant. [26] To the contrary, the sum of RM2,000,000.00 instead was a sum owing by the 2nd Defendant to the 1st Plaintiff which was termed as “outstanding debt”. The decision of this Court is supported by the categorization of documents all in Part A and the framing of the main cause papers as stipulated earlier where one counsel representing all the 3 Defendants as per para 9 of this Judgment. [27] The decision of the Court of Appeal in Civil Appeal No. W-02(W)- 1746-10/2023 Thiagarajan S Rengasamy & 3 ors v Sri Ganes Palaniapan on the significance of the categorization of the documents in either Part A, B or C respectively is crucial. It affirmed the decision of the High Court on this point, and is referred to and followed by this Court. [28] In that said case of Thiagarajan S Rengasamy & 3 ors, a claim arising from defamation with the documents containing the alleged defamatory statements were placed in Part A. The effect of placing this in Part A is addressed by Court of Appeal to be as follows: “[6] The contents of the four Facebook posts had been placed in Part A of the trial bundles. The question that arose was whether the claim for defamation was maintainable at all in this light, on the basis that Part A documents are intended to be documents which contents are agreed by the parties to be true… … [28] We are of the view that there does not exist any distinction between agreeing on the contents of a document, and the meaning of the contents of such document. Once a document is agreed as authentic and no dispute arises as to its contents, it must necessarily follow that the parties have agreed that the meaning of the words contained in the document is representative of the truth. If the meaning is disputed, then the document must be placed in Part B, not Part A…” [29] The transfer of a certain amount of money RM1,750,000.00 from the 2nd Plaintiff’s OCBC Bank can be seen in the OCBC financial statements for the year 2016 (see: enclosure 37 CBODs at pages 67 pdf onwards). The Defendants did not explain this by way of supporting documents to proof the expenses that have been incurred by them but merely said they are the profits entitled by the Defendants, and nothing more. [30] For this reason, this Court is of the view that counter-claim by the Defendants ought to be dismissed. The Plaintiffs, have succeeded in proving their claim based on the documents produced in Part A of the CBODs hence the reliefs sought by the Plaintiffs are allowed by this Court. -Signed- (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 16.04.2025 COUNSEL For the Plaintiffs: Wan Shahrizal Wan Ladin Messrs. Wan Shahrizal, Hairi & Co Advocates & Solicitors No. 3-2, 1st Floor, Jln PJS 8/4 Datara Mentari, Bandar Sunway 46150 Petaling Jaya