IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION)
SUIT NO. D22-NCC-572-2009
MALAYSIA DEBT VENTURES
BERHAD … PLAINTIFF
1) LIRA TECHNOLOGIES SDN BHD
2) LIRA MEWAH SDN BHD
3) MOHD MAHYUDIN BIN ZAINAL
4) PUTERI INTAN ZURAIDA BINTI DATUK ABDUL RAHMAN
5) MOHD SUHAMI BIN ROZALI
6) KHAIRUL AZLAN BIN MOHAMAD
… DEFENDANTS GROUNDS OF DECISION (Enc. 5)
BEFORE HIS LORDSHIP TUAN ANANTHAM KASINATHER JUDGE HIGH COURT MALAYA
KUALA LUMPUR IN CHAMBER
By a letter of offer dated 18th July 2007 and a facility agreement dated 1st September 2007 (‘the said facility agreement’), the Plaintiff granted the 1st Defendant two (2) revolving project loans. The first project loan (PL1) was to
finance the construction of two (2) telecommunication infrastructure for Konsortium Jaringan Selangor Sdn Bhd (‘KJS’). The second project loan (PL2) was to finance civil, mechanical and electrical works for a base transceiver station and microwave system sites for the proposed nationwide secure digital Government integrated radio network system for Sapura Research Sdn. Bhd. (‘Sapura’). In consideration of the Plaintiff entering into the aforesaid facility agreement, the 2nd Defendant by a corporate guarantee dated 1st September 2007 and the 3rd to 6th Defendants by a guarantee of the same date inter alia jointly and severally unconditionally and irrevocably guaranteed as a continuing obligation, the due performance and observance by the 1st Defendant of all its obligations under and in relation to the Facility Agreement. The 2nd to the 6th Defendants also undertook to pay on demand all monies due and owing by the 1st Defendant to the Plaintiff under the facility agreement. By way of further security, the 1 Defendant executed a first debenture dated 1st September 2007 and several Deeds of Assignment, absolutely irrevocably and unconditionally assigning all of the 1st Defendant’s present and future rights, title and interest and all benefits accrued and to accrue to the 1st Defendant under and relating to the proceeds derived, to be derived, and / or received, to be received in respect of both projects to the Plaintiff.
At the request of the 1st Defendant, the employer of PL2 was varied from Sapura to Bina Rezki Sdn Bhd (‘BRSB’). By an
offer letter of 29th August 2007. This change of party was effected by the execution by the parties of a fresh supplemental letter of offer and a supplemental assignment of 8th April 2008, together with other security documents.
The 1st Defendant thereafter fell into arrears of its payments under the facility agreement and the supplemental letter of offer causing the Plaintiff to demand payment of all outstanding amounts including interest vide its solicitors letter of 6th August 2009 addressed to all Defendants. As of 2nd October 2009, the outstanding amount including interest calculated at 8% p.a, payable to the Plaintiff in respect of the project PL1 was RM 91,858,37 and RM 1,862,080.65 in respect of PL2. By a further letter dated 28th October 2009, the Plaintiff through its solicitors demanded payment of the aforesaid sums and provided notice of the termination of the facilities to the 1st Defendant. By another letter of demand of the same date, the solicitors for the Plaintiff notified the 2nd to the 6th Defendants of the 1st Defendant’s default and of their obligation to indemnify the Plaintiff for the 1st Defendant’s outstanding indebtedness. The Plaintiff commenced this action on 26th November 2009 when the Defendants failed to settle the amounts demanded in the Plaintiff’s letter of 28th October 2009.
After the service of the statement of claim on the Defendants, the 1st Defendant made part payment of RM 11,716.98 for project PL1 thereby reducing the outstanding
amount in respect of project PL1 to RM 80,670.36. Subsequent to the filing of this application for summary judgment, the 1 Defendant paid the further amount of RM 110, 260.28 in respect of project PL1. The Plaintiff applied this amount to
discharge fully the 1 Defendant’s indebtedness in respect of project PL1 and transferred the surplus of RM 29,589.92 to project PL2. Accordingly, the Plaintiff’s claim in this summons is only in respect of the outstanding amounts in respect of project PL2 and which outstanding amount as of 1st April 2010 amounts to RM 1,902,043.44, inclusive of interest and penalty interest (see Enc. 8).
Counsel for the Defendants submitted that the default was caused through no fault on the part of the 1st Defendant. The default, according to Counsel, was on the part of the employers of the 1st Defendant i.e. KJS and BRSB. Counsel referred the Court to sec. 5.02 of the Deeds of Assignment and contended that the Plaintiff was obliged to exhaust its remedies against the employers before it could commence any proceedings against the Defendants. With respect, there is no merit in this submission for two reasons. First, it is evident from a plain reading of sec. 5.01 that the Plaintiff is under no such obligation. Secondly, this submission is contrary to the conduct of the 1st Defendant. There is evidence that the 1st Defendant appropriated progress payments remitted by the employers which were clearly due to the Plaintiff pursuant to the Deeds of
Assignment (Exh. NAH 1 of Enc. 14). It sounds ill in the mouth of the 1 Defendant to require the Plaintiff to exhaust its remedies after having appropriated monies otherwise due to the Plaintiff, in breach of the terms of the Deeds of Assignment.
The other issue, which, according to Counsel for the Defendants, is a triable issue is the dispute over the quantum of the claim. Again, I find no merit in this submission since there are no contemporaneous documents from the Defendants or their solicitors disputing the quantum in response to the Plaintiff’s solicitors letters of demand. Furthermore, the facility agreement accorded finality to the certificate of indebtedness issued by the Plaintiff (see Sec. 16.04 of Enc. NAH 2 and Exh. NAH 17 of Enc. 6). The futility of this submission is that the 1st Defendant in its letter of 13th February 2009 (Exh. NAH 1 to Enc. 14) voluntarily admitted to being indebted to the Plaintiff and proposed settlement of this indebtedness by way of monthly installments.
In my judgment, in the light of the admissions contained in the letter of the 1st Defendant and as none of the issues raised by Counsel for the Defendant warrants this Court ordering a trial of the issues, I grant the Plaintiff leave to sign final judgment against all the Defendants in the sum of RM1,902.043.44 with interest on the principal sum of RM1,705,712.24 at the rate of 8% p.a. with daily rests from 2nd
April 2010 till payment. Defendants to pay costs of RM 350 to the Plaintiff in respect of Enc. 5.
Pesuruhjaya Kehakiman Mahkamah Tinggi Kuala Lumpur
Date of Decision: 8th June 2010
(Tetuan Rajesh Hisham Pillai & Gopal)
Mr. Noor Hazury
(Tetuan The Law Practice of Mohaji & Hazury)
for the Plaintiff
for the Defendants