IN THE HIGH COURT AT KUALA LUMPUR (COMMERCIAL DIVISION)
SUIT NO. D-22-772-2007
RADEN CORPORATION SDN BHD … PLAINTIFF
RAVI BELTRAN & CO.
(being sued as a firm) … DEFENDANT
BEFORE THE HONOURABLE JUDGE Y.A. HAJI HAMID SULTAN BIN ABU BACKER
This is my judgment in respect of intervener’s application enclosure 32 to intervene in the proceedings.
The plaintiff strongly objects on the grounds that there is no documentary proof to show any legal interest. And in addition says the affidavit of one Mr. Khoo Swee Tiong which the intervener purportedly relies on has been struck out. And the said intervener’s application was made mala fide on the defendant’s instruction.
1. The plaintiff’s claim is for proceeds of the sale of machinery now in the hands of defendant who are stakeholder solicitors. The defendant’s case is that the proceeds belong to another company which has been wound up and liquidator appointed. The application to intervene is by the liquidator.
2. Parties relied on the following cases: Jamaluddin Mohd Radzi & Ors v. Sivakumar Varatharaju Naidu  3 CLJ 785; Selvam Holdings (Malaysia) Sdn Bhd v. Toby Lam as the Receiver and Manager and Liquidator of Selvam Holdings (M) Sdn Bhd & Anor  4 CLJ 899; Tohtonku Sdn Bhd v. Superace (M) Sdn Bhd  2 MLJ 63; Tiong Hung Ming v. Kalimantan Hardwood Sdn Bhd; Weeluk Holdings Sdn Bhd (Applicant)  9 CLJ 593; Zaitun Marketing Sdn Bhd v. Boustead Eldred Sdn Bhd  3 CLJ 785; American International Assurance Bhd v. Coordinated Services L Design Sdn Bhd [No: D-24NCC-93-2009] Hamid Sultan Bin Abu Backer J High Court [Kuala Lumpur] 24 February 2010.
3. I have read the application, affidavits and submission of the parties in detail. I take the view the intervener’s application must be dismissed. My reasons inter alia are as follows:
(i) The action can be easily resolved if the defendant’s solicitor deposit the money in the court and/or take stakeholder
interpleader summons to resolve the issue. This will also demonstrate their defence is bona fide and stand as stakeholder only, without getting into any dispute and maintain their independence as stakeholder solicitors. This the defendant has not done till date. What the intervener in this case ought to have done is to make an application to the court for the money to be paid into court with an order that the defendant takes a stakeholder interpleader summons, to determine to whom the money ought to be given. This the intervener has not done. The learned authors of Malaysian High Court Practice, 2001 Desk Edition, at page 484 make the following observations:
“The rationale behind this rule was described in Tong Lee Co Pte Ltd v. Koh Chiow Meng & Anor 2 Mallal’s Digest (4th Ed, 1994 Reissue) para 1786, viz that interpleader proceedings are not, in the strictest sense, proceedings against anybody, but are proceedings, the object of which is to extricate the applicant from the embarrassment of being sued, or likely to be sued, by more than one party in respect of the same subject-matter; and also to put the claimants in a position in which, if they are going to insist upon their claims, they should do so when the application was made. ”
On the facts of the case, if the intervener has genuine claim the liquidator ought to have made the necessary application to the court to direct the defendant to take interpleader summons or deposit the money into court for the court to
decide who the rightful claimant is. It is not too late for the intervener who happens to be the liquidator to do so.
(ii) For the intervener to intervene the intervener must satisfy that the order the court might make would directly affect his legal interest. Commercial interest per se is not sufficient. In this respect I agree with the plaintiff’s submission that the threshold requirement has not been satisfied, on the facts of the case.
(iii) There is also one issue on locus the plaintiff has raised, which has merits. I do not wish to deal with the same as it will serve no useful purpose taking into consideration that the intervener has not satisfied the threshold requirement.
4. For reasons stated above, I dismiss enclosure 32 with costs. The intervener to pay the plaintiff costs of RM 5,000.00 and the intervener shall not make any application in this court or any other court in respect of its claim on this issue without paying the said costs to the plaintiff.
I hereby order so.
(Y.A. DR.HAJI HAMID SULTAN BIN ABU BACKER)
High Court (Commercial Division)
Date: 26th May 2010
For the Plaintiff: Dato’ Sivarajan Navaratnam; M/s Rajan
For the Defendant: Kannan S/O Ratnam; M/s Ravi, Aida &