DALAM MAHKAMAH RAYUAN MALAYSIA DI KUALA LUMPUR
(BIDANG KUASA RAYUAN)
RAYUAN SIVIL NO. W-02-403 TAHUN 2009
FORMIS NETWORKSERVICE SDN. BHD.
(No. Syarikat: 188270-U) … PERAYU
JOHNSON CONTROLS (M) SDN. BHD.
(No. Syarikat: 97392-P) … RESPONDEN
(Dalam Perkara Saman Pemula No. D1 – 24 – 81 – 2007 Dalam Mahkamah Tinggi Malaya di Kuala Lumpur
Di dalam Perkara Seksyen-seksyen 41 dan 50 Akta Relief Spesifik 1950
Di dalam Perkara Aturan 29 Kaedah-kaedah Mahkamah Tinggi 1980
Di dalam Perkara Aturan 92 kaedah 4 Kaedah-kaedah Mahkamah tinggi 1980
Di dalam Perkara Notis bertarikh 7.3.2007 menurut Seksyen 218 Akta Syarikat 1965
FORMIS NETWORKSERVICES SDN. BHD.
(Syarikat No. 188270-U) … PLAINTIFF
JOHNSON CONTROLS (M) SDN. BHD.
(No. Syarikat: 97392-P) … DEFENDEN)
LOW HOP BING, JCA SULONG BIN MATJERAIE, JCA RAMLY BIN HJ. ALI, JCA
LOW HOP BING, JCA
(DELIVERING THE JUDGMENT OF THE COURT)
 On 23 March 2009, the learned High Court Judge dismissed the appellant’s (“the plaintiff’s”) originating summons and oral application for an Erinford injunction.
 This is the plaintiff’s appeal against the said decision.
II. FACTUAL BACKGROUND
 The plaintiff requested the defendant to supply goods and services for a project to “supply, test, commission and maintain” the intelligent control system of Putrajaya Administration Complex in Putrajaya.
 The “goods and services” consisted of a Security Access Control System and IP CCTV System together with their installation, testing and commissioning under a warranty, which was charged by the defendant and was paid partly.
 Additional and separate warranty was given by the defendant from 24 November 2005 to 24 November 2007.
 The defendant’s contractual obligations are to supply goods and services that are “fit for the purpose of the project”; and to warranty the product until 24 November 2007.
 The defendant then demanded from the plaintiff the following sums:
(1) Progress Payment No. 20 (in respect of the CCTV system) for RM239,357.71; and
(2) Progress Payment No. 24 (in respect of the Security Access Control system) for RM130,088.32.
 First part payment in the sum of RM57,464.31 was made by the plaintiff.
 The defendant further extended the warranty to 24 November 2007 on all goods supplied by the defendant. Relying on the undertaking as to warranty, a further sum RM121,975.54 was paid.
 However, the plaintiff alleged that the defendant did not perform its contractual obligations of supplying goods that are fit for the purpose of the project or replace the defective goods, and that the defendant also failed to return goods that were taken by them for repair.
 Instead, the defendant threatened to present a winding-up petition on the alleged outstanding sum of RM190,006.18.
 On 7 March 2007, the defendant served a notice under s. 218 of the Companies Act 1965 (s. 218 notice) on the plaintiff. The s. 218 notice was issued without first obtaining a judgment in Court.
 On 16 March 2007, the plaintiff filed an originating summons, seeking a declaration that the defendant is not entitled to file a winding up petition based on the alleged debt, and an injunction to restrain the defendant from presenting a winding-up petition.
 On the same date, the plaintiff also filed a summons in chambers praying for an interim injunction.
 On 26 March 2007, the plaintiff obtained an ad interim injunction against the defendant, pending final disposal of the originating summons.
 However, the plaintiff’s originating summons was dismissed by the High Court on 23 March 2009.
 On 24 March 2009, the plaintiff filed a notice of appeal against the said decision and at the same time filed encl. 4(a) for interim order pursuant to s. 44 of the Courts of Judicature Act 1964, pursuant to which consent order was entered on 1 April 2009, pending disposal of the appeal.
III. DISPUTE ON SUBSTANTIAL GROUNDS
 Mr Yap Boon Hau, learned counsel for the plaintiff, submitted that the plaintiff disputed the alleged outstanding sum, on the grounds that the goods and services rendered by the defendant were defective; the defendant’s refusal to complete the testing and commissioning works; failure to return items taken; and the defendant’s claims include warranty which the defendant refused to warrant.
 Defendant’s learned counsel Mr Chen Mian Kuang responded that the s. 218 notice was for a balance debt due under the plaintiff’s certificate and part payment.
 Upon a proper perusal of the affidavits filed in the High Court, we found that the dispute raised for the plaintiff was founded on substantial grounds, which include the following:
(1) As early as 15 June 2006, the plaintiff had supplied a list of outstanding works and defective works;
(2) The defendant admitted there were defective goods : at least 17 items needed repair;
(3) The plaintiff had issued at least 11 letters of complaint to the defendant.
 Quite apart from that, upon a proper perusal of the affidavits filed by the parties, we also found the following triable issues:
(1) Whether the defendant had failed to perform its obligations to supply proper goods and services fit for the purpose of the project; and to remedy the defective goods?
(2) Whether the defendant had breached the terms of the warranty?
(3) Whether the defendant should return the sum which the plaintiff had paid for the warranty and deduct the claim for the balance sum of warranty from their claim of RM190,006.18?
(4) Whether the defendant had neglected to complete the uncompleted works?
(5) Whether the defendant was liable to return the goods taken by them? and
(6) Whether the defendant had omitted to deduct the costs of the goods taken by them?
 We are of the view that the debt is seriously disputed on substantial and bona fide grounds, and the triable issues have to be resolved by way of a trial in a civil action.
 We therefore allowed the plaintiff’s appeal with fixed costs of RM2,000 here and in the Court below. We substituted the order of the High Court with an order in terms of the plaintiff’s originating summons. Deposit to the plaintiff.
DATUK WIRA LOW HOP BING
Court of Appeal Malaysia PUTRAJAYA
Dated this 6th day of November 2009
COUNSEL FOR APPELLANT:
Mr Yap Boon Hau
Tetuan Mah-Kamariyah & Philip Koh Peguambela & Peguamcara No. 3, Persiaran Hampshire Off Jalan Ampang 50450 Kuala Lumpur
COUNSEL FOR RESPONDENT:
Mr Chen Mian Kuang Tetuan MK Chen & Leong Peguambela & Peguamcara Suite B – 6 – 3, Plaza Mont’ Kiara 2 Jalan Kiara, Mont’ Kiara 50480 Kuala Lumpur