2010-05-21 C-12-7 Cheras Ria High Court of Malaya KL (Commercial Division) Rulings

1

THE HIGH COURT OF MALAYA KUALA LUMPUR

(COMMERCIAL DIVISION)

SUIT NO: D22NCC-2105-2010

1. TEE YOU SHIA

2. HO CHOI KIM

v.

1. ASSET FIRST SDN. BHD.

2. PARAMJIT SINGH A/L CHARAN SINGH

3. SHARANJIT SINGH A/L CHARAN SINGH

4. JAGMOHAN SINGH A/L BHUPINDAR SINGH

5. BAVANI A/P M. SOORIAMOORTHY

GROUNDS OF JUDGMENT

Enclosure 42 is an ex-parte application for the following Orders,

(1) A declaration that the 2nd Defendant was and is the legal and

beneficial owner of the properties set down below:

1.1. No. 48F, Jalan Hulubalang 29, Taman Sentosa, 41200

Klang, Selangor held under Geran 93238, Lot No.

62809, Mukim of Klang, District of Klang, State of

Selangor;

2




Selangor;

1.3 No. 41F, Jalan Hulubalang 26, Taman Sentosa, 41200



Selangor;

1.4 No. 32A-1F, Jalan Dato Dagang 31, Taman Sentosa,

41200 Klang, Selangor held under Geran 60495, Lot

No. 72604, Mukim of Klang, District of Klang, State of

Selangor;

1.5 No. 65C-2F, Jalan Dato Dagang 31, Taman Sentosa,



Selangor;

1.6 No. 73B-1B, Jalan Dato Dagang 31, Taman Sentosa,



Selangor;

1.7 Unit No. B-G13, Ground Floor, Block B, Plaza Suria,

Jalan PJU 10/4A, Damansara Damai, 47300 Sungai

3

Buloh, Selangor held under PN 22332, Lot 70243,

Mukim of Sungai Buloh, District of Petaling, State of

Selangor;

1.8 Unit H/413, Blok H, Saujana Apartment, No. 1, Jalan

PJU 10/1G, PJU 10, Damansara Damai, 47830 Petaling

Jaya, Selangor held under PN 20615, Lot No. 70321,


Selangor;

1.9 Plot No. 67, Phase 1A/514, Lembah Beringin 44110

Kuala Kubu Bahru, Selangor held under Geran 39539,

Lot 1501, Mukim of Sungai Gumut, District of Ulu

Selangor, State of Selangor;

1.10 Unit No. 509, Block A, Rumah Pangsa Fasa 2, Bandar

Baru Sungai Buloh, Seksyen U20, 40160 Shah Alam,

Selangor;

1.11 Unit No. A-3-9, Pesona Villa Apartment, Jalan Melati

Indah 1, Saujana Melawati, 53100 Kuala Lumpur held

under GM 427, Lot 18625 (formerly known as HSM

13571), Mukim of Ulu Kelang, Tempat Batu 7 Hulu

Kelang, District of Gombak, State of Selangor;

4

1.12 No. C-11A-03, Lestari Apartments, Jalan PJU 10/1B,

Damansara Damai, 47830 Petaling Jaya, Selangor held

under PN 22376, Lot No. 70313, Mukim of Sungai

Buloh, District of Petaling, State of Selangor;

1.13 No. 2, C-12-7, Rumah Pangsa Cheras Ria, Jalan 6/95B,

Taman Cheras Utama, Cheras, 56100 Kuala Lumpur;

1.14 PS16-7, Prima Saujana Apartment, No.2, Jalan Wangsa

2/6, Taman Wangsa Permai, 52200 Kuala Lumpur held

under PM581/M1/17/363, Lot No. 58126, Bandar

Kepong, District of Gombak, State of Selangor;

1.15 No. 10, Tingkat Bawah, Blok 41, Jalan 28/24, Seksyen

28, 40400 Shah Alam, Selangor held under Geran

36258/M3/1/90, Lot No. 21916, Pekan Hicom, District of

Petaling, State of Selangor; and

1.16 Unit B4-02, 4th Floor, Block B, Pangsapuri Seri Pulai,

Jalan Balakong Jaya 26, Taman Balakong Jaya, 43300

Seri Kembangan, Selangor.

(the Properties)

(2) A declaration that the Plaintiffs be recognized as the new legal

and beneficial owners, in equal half () shares, of each

individual unit of the Properties upon the completion or

compliance of the following:

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2.1 The Plaintiffs respective execution of deed of absolute

assignments for each individual unit of the Properties;

2.2 Delivery of valid express notice of assignments for each

individual unit of the Properties to the respective housing

developers;

2.3 Delivery of valid adjudicated and stamped instruments of

transfer for each individual unit of the Properties to the

respective housing developers; and

2.4 Any other formal or ancillary requirements and/or

documents necessary for the formal transfer or

assignment.

(3) A declaration that any deed of absolute assignment,

instruments of transfer or assignment as well as other ancillary

notices and/or documents relating to each individual unit of the

Properties transfer or assignment be deemed to be duly,

regularly and completely executed in the absence of the 2nd

Defendants execution;

(4) That upon the satisfaction of paragraph 2 above, the respective

Properties housing developer be ordered:

4.1 To within seven (7) days of the service of this sealed

Order, register and/or enter the Plaintiffs as legal and

beneficial owners of equal half () share of each

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individual unit of the Properties in the respective housing

developers register or record of purchasers;

4.2 To as and when it immediately appears expedient

and possible, present all necessary documents and

assistance to the Registrar of Titles or Land Administrator

in order to facilitate the said Registrar of Titles or Land

Administrators registration and/or naming of Plaintiffs as

equal half () share owners of each individual unit of the

Properties in the respective land titles;

4.3 To refuse to register and/or enter into its register or

records of purchasers any other legal and beneficial

owners from and/or resulting from the 2nd Defendants

execution and/or delivery of any absolute assignment,

instruments of transfer or assignment as well as other

ancillary notices and/or documents relating to each

individual unit of the Properties transfer or assignment;

and

4.4 To refuse the provision of any documents and assistance

to the Registrar of Titles or Land Administrator in order to

facilitate the registration and/or naming of the 2nd

Defendants and/or any other of his transferee(s) or

assignee(s) as owners of each individual unit of the

Properties in the respective land titles.

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(5) That the Registrar of Titles or Land Administrator be ordered to

register and/or name the Plaintiffs as the legal and beneficial

owners, in equal half () share, of each individual unit of the

Properties in the respective land titles;

(6) That the Director General of Inland Revenue or Collector of

Stamp Duties be ordered to adjudicate and/or stamp any deed

of absolute assignment, instruments of transfer or assignment

as well as other ancillary notices and/or documents relating to

each individual unit of the Properties transfer or assignment;

(7) That is satisfaction of the judgment debt, interests and costs

ordered amounting to RM798,437.76 as at the date of filing

herein (the Adjudged Sum), it is hereby ordered as follows:

7.1 That an independent chartered valuation surveyor and/or

registered valuer be appointment to conduct a valuation

on each individual unit of the Properties;

7.2 That a licensed auctioneer be appointed to conduct a

private auction of each individual unit of the Properties;

7.3 That the amount of the Adjudged Sum be deducted from

the proceeds of the auction of each individual unit of the

Properties;

7.4 That the amount of all outgoings due from the 2nd

Defendant to each individual unit of the Properties

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housing developers (all Outgoing Sum) be deducted

from the proceeds of the auction;

7.5 That the amount of fees, costs as well as any and all

other expenses arising from and relating to the auction

(all Auction Expenses) be deducted from the proceeds

of the auction;

7.6 That upon the satisfaction of the Adjudged Sum, all

Outgoing Sum and all Auction Expenses, and any/all

balance of proceeds from or resulting from the auction

shall be held in trust by the Plaintiffs solicitors for the

2nd Defendant and/or his estate; and

7.7 That upon the satisfaction of the Adjudged Sum, all

Outgoing Sum and all Auction Expenses, and in the event

one or more of each individual unit of the Properties

having failed to be auctioned, the Properties shall be held

in trust by the Plaintiffs for the 2nd Defendant and/or his

estate.

8. That service of all documents on each individual unit of the

Properties housing developer be deemed effected by leaving a

copy of the document on the respective Properties housing

developers registered address with the Companies Commission

of Malaysia.

9

9. That cost of this application be borne by the 1st and 2nd

Defendants; and

10. Such other orders or reliefs this Honourable Court deems fit and

necessary.

Background

Sometime in 2007, the Plaintiffs were invited to participate in property

investment schemes created and/or organized by the 1st, 2nd and 3rd

Defendants. The 2nd and 3rd Defendant introduced themselves as

directors of the 1st Defendant. The investment scheme involved

the 1st Defendant sourcing for suitable properties (apartments in

or around the Klang Valley) for purchase by participants and

subsequently for resale at higher prices. The 2nd and 3rd Defendants

on behalf of the 1st Defendant represented and promised inter alia

that:

(a) The purchase price of the properties sourced by the 1st

Defendant and made available for purchase by the

participants would be very low compared to the market

price;

(b) The properties were available to be purchased at low

prices in bulk quantities given the 2nd and 3rd Defendants

and/or the 1st Defendants connections with the banks;

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(c) The 1st Defendant would arrange for the properties to be

sold at high prices, being between 130% - 140% of the

purchase price;

(d) The profits and returns from the investments would be

significant and between 30% - 40%; and

(e) The investment scheme is lawful and would involve

proper documentation, including the execution of Sale

and Purchase Agreements prepared by 1st Defendants

nominated solicitors.

The Plaintiffs were attracted to the representations and promises of

the 2nd and 3rd Defendants and subsequently registered for 2 types of

investment schemes with the 1st Defendant as follows:-

(a) The Asset Building Community scheme (ABC scheme)

upon executing an agreement with the 1st Defendant on

1.8.2008 (the 1.8.2008 ABC Agreement); and

(b) The First Building Community scheme (FBC scheme)

upon executing an agreement with the 1st Defendant

sometime in April 2009 (FBC Agreement).

The Plaintiffs paid an annual joining fee and an administrative fee in

the sums of RM10,500.00 and RM12,600.00 respectively on 1.8.2008

to the 1st Defendant in order to participate and invest in the schemes.

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ABC Scheme

The salient features of the 1.8.2008 ABC Agreement are as follows:

(a) The 1st Defendant would be appointed to use its services

to purchase, rent and/or resell properties of the Plaintiffs.

(b) The 1st Defendant was to encompassappointed

partners and associates including real property estate

agents, auctioneers, nominated legal firms, utility

management companies and other companies affiliated to

the 1st Defendant.

(c) An administration fee to the 1st Defendant for its services

in facilitating the property transactions would be paid and

was to be valid for a 5 year period.

(d) The 1st Defendant was to source or obtain properties at a

guaranteed minimum price of 25% below market price for

the purchase.

(e) The Plaintiffs had the option to purchase the available

properties, to a total maximum investment of

RM250,000.00 per year.

(f) The Plaintiffs appointed the legal firms nominated by the

1st Defendant to represent them in the transactions, one

M/s Jagmohan Singh & Associates of No. 52-A, Jalan

Kemuja, Off Jalan Bangsar, 59000 Kuala Lumpur (4th

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Defendants Firm) and M/s Bavani & Bhavani of No.

22A, Jalan Station 41000 Klang, Selangor Darul Ehsan

(5th Defendants Previous Firm), which name and style

was changed to the M/s S Bavani on 1.6.2009 and other

legal firms from time to time nominated by the 1st

Defendant.

(g) The Plaintiffs paid for the properties purchased with cash

and by depositing the total purchase price into the Clients

Account of the nominated legal firms in the following

manner:

Option Payment

(% of Purchase Price)

Manner of payment

1

10

To be paid within 3 working days from the date of confirmation of selection of property

90


Or

2

100


(h) The legal fees of the legal firm nominated to represent the

Plaintiffs in the transaction were paid by the Plaintiffs.

(i) The vacant possession of the property from the 1st Defendant

will be given within forty five days (45) of executing the Sale

and Purchase Agreement. The period of receipt of vacant

possession should not exceed ninety (90) days.

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(j) The 1st Defendant was to ensure that the properties were

tenantable and would provide a guaranteed minimum rental

return of 8% per annum (of the purchase price).

The Plaintiffs made several initial investments in the ABC scheme.

Under the ABC scheme the Plaintiffs purchased through the 1st

Defendant three (3) properties as arranged by the 1st Defendant (the

ABC properties). The offer by the 1st Defendant and the selection

of the ABC properties were done through the 1st Defendants website.

Particulars of the ABC properties purchased, vendors, sale and

purchase agreements (SPAs), purchase prices and payments are

as follows:

ABC properties purportedly purchased:

NO

DETAILS OF PROPERTY

VENDOR & DOCUMENTS

PURCHASE

PRICE & PAYMENT

1 One (1) unit apartment with an address at Unit No. F-1-1, Apartment Golden Villa, Jalan Temenggung 37/KS 07, Taman Sejahtera, 41000 Klang, Selangor Darul Ehsan (F-1-1 Unit).

Purchase from one Rinajeet Kaur a/p Hacharam Singh by SPA dated 13.3.2009 prepared by 4th Defendants Firm.

RM59,049.00

(Paid in full to 4th Defendants

Firm on 5.12.2008)

2

One (1) unit apartment with an address at No. Alpi 02-07, Second Floor, Jalan Residensi Warnasari 13/1, Residensi Warnasari 2, 42300 Bandar Puncak Alam, Selangor Darul Ehsan (Alpi 02-07 Unit).

Purchase from one Abdul Malik bin Muhamed Sultan by SPA dated 16.1.2009 prepared by 4th Defendants Firm.

RM54,000.00

(Paid in full to

4th Defendants Firm on

16.9.2008)

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3

One (1) unit apartment with an address at No. Kasih 01-24, 1st Floor, Astana Kasih, Astana Alam Apartment 3, Jalan Astana 13/2, Section 13, Bandar Puncak Alam, Selangor Darul Ehsan (Kasih 01-24 Unit).

Purchase from one Rinajeet Kaur a/p Hacharan Singh by SPA dated 16.1.2009 prepared by 4th Defendants Firm.

RM47,250.00

(Paid in full to

4th Defendants Firm on

16.9.2008)

TOTAL

160,299.00

The 4th Defendants Firm was nominated by the 1st Defendant to

represent the Plaintiff in the purchase of the ABC properties.

Accordingly, the 4th Defendants Firm prepared the SPAs for the

Plaintiffs purchase of the F-1-1 Unit, Alpi 02-07 Unit and Kasih 01-24

Unit. The 4th Defendants Firm also received the full purchase price

of the ABC properties from the Plaintiffs.

Despite having paid the full purchase price and legal fees for the ABC

properties, the Plaintiffs were never informed by the 1st, 2nd, 3rd or 4th

Defendants of the date they would be given the vacant possession of

the ABC properties. The Plaintiffs never received any profits or

returns.

Following the purchases of the ABC properties, the 1st Defendant

then purported to arrange for the resale of the F-1-1 Unit, Alpi 02-07

Unit and Kasih 01-24 for the Plaintiffs through its nominated real

estate agent, M/S Marriot Properties. The Plaintiffs then sold the ABC

properties to various purchases for profits between 30% - 40% or

more of the original purchase price. The arrangements by the 1st

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Defendant for the resale of the ABC properties were informed to

and agreed by the Plaintiffs through the 1st Defendants website.

Particulars of the purported resale are as follows:

Purported resale of ABC properties:

NO PROPERTY PURCHASER & DOCUMENTS

RESALE PRICE (RM)

PROFIT (%)

1

F-1-1 Unit

Sold to one Savendar Kaur a/p Charan Singh by SPA dated 2.6.2009 prepared by the 4th Defendants Firm.

82,000.00

39

2

Alpi 02-07 Unit

Sold to one Siti Zaleha binti Muhammad Salim by SPA dated 7.5.2009 prepared by the 4th Defendants Firm.

75,600.00

40

3

Kasih 01-24 Unit

Sold to one Savendar Kaur a/p Charan Singh by SPA dated 2.6.2009 prepared by the 4th Defendants Firm.

67,560.00

43

TOTAL

225,160.00

Based the terms of the respective SPAs prepared by the 4th

Defendants Firm, the Plaintiffs were suppose to receive the resale

price of the F1-1-Unit, Alpi 02-07 Unit and Kasih 01-24 Unit totaling

RM225,160.00 from the 1st, 2nd, 3rd Defendants and/or 4th Defendants

Firm within 3 months from the date of the respective SPAs. However,

the 1st, 2nd, 3rd Defendants and/or the 4th Defendants Firm failed, to

pay in full or any part of the resale price to the Plaintiffs.

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Notwithstanding the delay and/or default to pay the resale price, the

Plaintiffs renewed their membership in the ABC scheme by paying to

the 1st Defendant the requisite administrative fee of RM12,600.00 on

31.7.2009.

FBC Scheme

Investors in the FBC scheme would invest in and purchase shares

or portions in FBC properties. As represented by the 1st, 2nd and/or

3rd Defendants, once all the shares or portions in each FBC property

has been taken up, the 1st Defendant would make the necessary

arrangements for the purchase and subsequent resale of the FBC

property. The 1st, 2nd and/or 3rd Defendants represented that the profit

and/or rate of return on the Plaintiffs investment in the FBC scheme

would be announced and paid within 6 months after each FBC

investment. The 1st Defendant offered the FBC properties for

investment on the 1st Defendants website. The Plaintiffs were invited

through the 1st Defendants website to select the FBC property to

invest in and specify the share or portion in ringgit value of each FBC

investment.

The Plaintiffs were represented by solicitors nominated by the 1st

Defendant for each investment in the FBC scheme. The investments

in the FBC properties were paid to either the 5th Defendants Firm

or 5th Defendants Previous Firm. The Plaintiffs also paid legal fees

for every transaction under the FBC scheme to either the 5th

Defendants Firm or 5th Defendants Previous Firm.

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The 1st Defendant duly declared the profits for the investments in the

FBC scheme for the months of April, May and June 2009. However,

the 1st Defendant has to date, failed, omitted and/or refused to pay

the declared profits and to return the investment to the Plaintiffs for

this period. In respect of the Plaintiffs investment between August

2009 to March 2010, the 1st Defendant has to date, failed, omitted

and/or refused to declare or pay any profits for the investment in the

FBC scheme for this period.

Upon discovery of the fraud, the Plaintiffs made a police report on

11.8.2010 against the Defendants and thereafter on 2.9.2010 lodged

a complaint against the 5th Defendant for the participation and/or

involvement in the fraud relating to the FBC scheme with the

Advocates & Solicitors Disciplinary Board.

Plaintiffs Suit Against The Defendants

The Plaintiffs filed a Writ of Summons and Statement of Claim

against the Defendants for the following prayers:

1. Liquidated damages:

(a) RM10,500.00 from the 1st, 2nd and 3rd Defendants jointly

and severally, being the Joining Fee paid by the 1st

Plaintiff to invest in the ABC scheme;

(b) RM25,200.00 from the 1st, 2nd and 3rd Defendants jointly

and severally, as Administrative Fee paid by the 1st

Plaintiff for the period of 2008 and 2009 (renewal);

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(c) RM160,299.00 from the 1st, 2nd, 3rd and 4th Defendants

jointly and severally, being the total purchase price paid

by the 1st Plaintiff for the F-1-1 Unit, Alpi 02-07 Unit and

Kasih 01-24 Unit under the ABC scheme;

(d) RM64,851.00 from the 1st, 2nd, 3rd and 4th Defendants

jointly and severally, being the profit due to the 1st

Plaintiff from the resale of the F-1-1 Unit, Alpi 02-07 Unit

and Kasih 01-24 Unit under the ABC scheme;

(e) RM5,511.43 from the 4th Defendant being the total legal

fees paid by the 1st Plaintiff for the purchase and resale of

the F-1-1 Unit, Alpi 02-07 Unit and Kasih 01-24 Unit under

the ABC scheme;

(f) RM15,750.00 from the 1st, 2nd and 3rd Defendants jointly

and severally, being the membership fee paid by the

1st Plaintiff for the FBC scheme for April 2009, May 2009

and June 2009;

(g) RM181,200.00 from the 1st, 2nd , 3rd and 5th Defendants

jointly and severally, being the 1st Plaintiffs investment in

the FBC scheme;

(h) RM19,265.92 from the 1st, 2nd , 3rd and 5th Defendants

jointly and severally, being the declared profit for the

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1st Plaintiffs investment in the FBC scheme for the

months of April 2009, May 2009 and June 2009;

(i) RM1,200.00 from the 5th Defendant being the total legal

fees paid by the 1st Plaintiff to the 5th Defendants Firm for

the investment in the FBC scheme for August 2009 to

March 2010; and

(j) RM600.00 from the 5th Defendant being the total legal

fees paid by the 1st Plaintiff to the 5th Defendants

Previous Firm for the investment in the FBC scheme for

April 2009, May 2009 and June 2009;

2. Other relief sought are as follows:

(a) A declaration that the business of the 1st Defendant have

been carried on by 2nd and 3rd Defendant with an intent to

defraud the investors, particularly the 1st and 2nd Plaintiffs;

(b) A declaration that the Defendants shall be jointly and/or

severally liable and personally liable, where applicable,

without any limitation of liability, for all of the debts or

other liabilities of the 1st Defendant;

(c) General Damages to be assessed by this Honourable

Court:

(i) Against all Defendants for their fraud against the

1st and 2nd Plaintiffs respectively;

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(ii) Against the 4th and 5th Defendants for their breach

of fiduciary duty and/or negligence; and

(iii) Against the 1st Defendant for breach of Contract.

(d) Aggravated and exemplary damages to be assessed by

the Honourable Court against all the Defendants;

(e) Interest at 8% per annum on the judgment sum from the

date of filing of the Summons herein until full realization

thereof;

(f) Costs of this action; and

(g) Such further and other relief that this Honourable Court

deems fit and just.

Pursuant to the Order dated 13.1.2011 (the Striking Out Order)

and Judgement dated 13.1.2011 (the Judgment in Default), the

1st and 2nd Defendants owe the 1st and 2nd Plaintiffs the total sum of

RM539,984.08 and RM258,453.68 (the Outstanding Amount)

respectively. However the 1st and 2nd Defendants failed, omitted

and/or refused to satisfy the said amounts. To date, the total amount

due and owing by the 1st and 2nd Defendant to the Plaintiffs pursuant

to the Striking Out Order and Judgment in Default are as follows:

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1st Plaintiff:

NO JUDGMENT/ORDER ITEM(S) AMOUNT (RM)

1. Judgment in Default Judgment Sum 477,065.92

Interest at 8% per annum

from 12.11.2010 to 5.8.2011

27,918.16

Fixed Costs 25,000.00

2. Striking Out Order Fixed Costs 10,000.00

Total (the Outstanding Amount) 539,984.08

2nd Plaintiff:

NO JUDGMENT/ORDER ITEM(S) AMOUNT (RM)

1. Judgment in Default Judgment Sum 211,100.00

Interest at 8% per annum

from 12.11.2010 to 5.8.2011

12,353.68

Fixed Costs 25,000.00

2. Striking Out Order Fixed Costs 10,000.00

Total (the Outstanding Amount) 258,453.68

The Plaintiffs through their solicitors had made numerous inquiries to

ascertain the assets of the 1st and 2nd Defendants for the purpose of

execution to satisfy the Outstanding Amount, including writing to

property developers for properties believed to belong to the 1st and/or

2nd Defendant. The following properties were confirmed (by its

corresponding written proof/confirmation) to be properties of the 2nd

Defendant:

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NO

PROPERTY(S)

PROPERTY

TYPE

INSTRUMENT OF TRANSFER/TITL

E

ESTIMATED

VALUE (RM)

CONFIRMATION OF

OWNERSHIP

1 No. 48F, Jalan Hulubalang 29, Taman Sentosa, 41200 Klang, Selangor held under Geran 93238, Lot No. 62809, Mukim of Klang, District of Klang, State of Selangor;

Strata Deed of Assignment/Title

Not Issued

30,000.00 Plaintiffs solicitors letter dated 28.2.2011

& M/s Ablelink Properties (M) Sdn Bhds letter dated

1.3.2011 and Land search dated 11.8.2011

(Developers confirmation).

2

No. 39F, Jalan Hulubalang 26, Taman Sentosa, 41200 Klang, Selangor held under Geran 93189, Lot No. 62766, Mukim of Klang, District of Klang, State of Selangor;

Strata

Deed of

Assignment/Title Not Issued

32,000.00

Plaintiffs solicitors

letter dated 28.2.2011 & M/s Ablelink

Properties (M) Sdn Bhds letter dated



3

No. 41F, Jalan Hulubalang 26, Taman Sentosa, 41200 Klang, Selangor held under Geran 93188, Lot No. 62765, Mukim of Klang, District of Klang, State of Selangor;

Strata

Deed of


37,000.00


letter dated 28.2.2011 & M/s Ablelink

Properties (M) Sdn Bhds letter dated



4

No. 32A-1F, Jalan Dato Dagang 31, Taman Sentosa, 41200 Klang, Selangor held under Geran 60495, Lot No. 72604, Mukim of Klang, District of Klang. State of Selangor.

Strata

Deed of


39,500.00


letter dated 28.2.2011 & M/s Fajar Marketing & Development Sdn

Bhds letter dated 24.3.2011 and Land

search dated 6.6.2011 (Developers confirmation).

5

No. 65C-2F, Jalan Dato Dagang 31, Taman Sentosa, 41200 Klang, Selangor under held under Geran 60549, Lot No. 72658, Mukim of Klang, District of Klang, State of Selangor;

Strata

Deed of


30,000.00





23

6

No. 73B-1B, Jalan Dato Dagang 31, Taman Sentosa, 41200 Klang, Selangor held under Geran 60553, Lot No. 72662, Mukim of Klang, District of Klang, State of Selangor;

Strata

Deed of


45,000.00





7 Unit No. B-G13, Ground Floor, Block B, Plaza Suria, Jalan PJU 10/4A, Damansara Damai, 47300 Sungai Buloh, Selangor held under PN 22332, Lot 70243, Mukim of Sungai Buloh, District of Petaling, State of Selangor;


Not Issued

190,350.00 Plaintiffs solicitors letter dated 11.4.2011 & M/s Medam Prestasi Sdn Bhds letter dated 18.5.2011 and Land


8 Unit H/413, Blok H, Saujana Apartment, No. 1, Jalan PJU 10/1G, PJU 10, Damansara Damai, 47830 Petaling Jaya, Selangor held under PN 20615, Lot No. 70321, Mukim of Sungai Buloh, District of Petaling, State of Selangor;


Not Issued

79,380.00 Original Deed of Assignment between Assignor (Bank) and

Assignee (Defendant), undated and

unstamped and Land search dated 9.8.2011.

9 Plot No. 67, Phase 1A/514, Lembah Beringin 44110 Kuala Kubu Bahru, Selangor held under Geran 39539, Lot 1501, Mukim of Sungai Gumut, District of Ulu Selangor, State of Selangor;


Not Issued


Assignee (Defendant), dated 30.4.2010,


10 Unit No. 509, Block A, Rumah Pangsa Fasa 2, Bandar Baru Sungai Buloh, Seksyen U20, 40160 Shah Alam, Selangor;


Not Issued


Assignee (Defendant), undated and unstamped.

24

11 Unit No. A-3-9, Pesona Villa Apartment, Jalan Melati Indah 1, Saujana Melawati, 53100 Kuala Lumpur held under GM 427, Lot 18625 (formerly known as HSM 13571), Mukim of Ulu Kelang, Tempat Batu 7 Hulu Kelang, District of Gombak, State of Selangor;


Not Issued

117,500.00 Plaintiffs solicitors letter dated 31.5.2011 & M/s Nashill & Cos letter dated 1.6.2011

and Land search dated 8.8.2011 (Assignors

solicitors confirmation).

Original Deed of Assignment between Assignor (Bank) and

Assignee (Defendant) undated and unstamped.

12

No. C-11A-03, Lestari Apartments, Jalan PJU 10/1B, Damansara Damai, 47830 Petaling Jaya, Selangor held under PN 22376, Lot No. 70313, Mukim of Sungai Buloh, District of Petaling, State of Selangor;

Strata

Deed of


46,000.00

Original Deed of

Assignment between Assignor (Bank) and

Assignee (Defendant), undated and


13

No. 2, C-12-7, Rumah Pangsa Cheras Ria, Jalan 6/95B, Taman Cheras Utama, Cheras, 56100 Kuala Lumpur;

Strata

Deed of


48,000.00

Original Deed of


Assignee (Defendant), undated and unstamped.

14

S16-7, Prima Saujana Apartment, No.2, Jalan Wangsa 2/6, Taman Wangsa Permai, 52200 Kuala Lumpur held under M581/M1/17/363, Lot No. 58126, Bandar Kepong, District of Gombak, State of Selangor;

Strata

Memorandum of

Transfer

91,900.00


letter dated 15.3.2011 & M/s Palm Grove Housing Sdn Bhds

letter dated 21.3.2011 and Land search

conducted on 8.8.2011 (Developers

confirmation). .

15

No. 10, Tingkat Bawah, Blok 41, Jalan 28/24, Seksyen 28, 40400 Shah Alam, Selangor held under Geran 36258/M3/1/90. Lot No. 21916, Pekan Hicom, District of Petaling, State of Selangor; and

Strata

Memorandum of

Transfer

54,000.00


letter dated 27.4.2011 & M/s Suria Capital

Holdings Bhds letter dated 28.4.2011 and

Land search conducted on 9.8.2011 (Developers confirmation).

25

61

Unit B4-02, 4

th Floor,

Block B, Pangsapuri Seri Pulai, Jalan Balakong Jaya 26, Taman Balakong Jaya, 43300 Seri Kembangan Selangor.

Strata

Memorandum of

Transfer

31,500.00

Original Deed of


Assignee (Defendant) undated and unstamped.

(the Properties)

However, the Plaintiffs solicitors have not been able to ascertain

any other properties belonging to the 1st and 2nd Defendant. For

the purposes of execution of the outstanding amount against the

2nd Defendant, the usual mode of execution is by a Writ of Seizure

and Sale (pursuant to O 45 r 1(1) of the Rules of the High Court

1980) [the Writ of Seizure and Sale] and that the said Writ is

effective from and by the registration of a Prohibitory Order (pursuant

to s 334 of the National Land Code) in the register document of title

by the Registrar of Titles or Land Administrator. However, since

individual strata titles have yet to be issued by the relevant land

offices for the Properties above or where individual strata title having

being issued but yet to be subdivided to the 2nd Defendant, the

Plaintiffs solicitor is prevented from filing and/or resorting to the

procedure of Writ of Seizure and Sale to execute the Judgment in

Default and Striking Our Order in order to satisfy the outstanding

amount. This present incapacity is due to the inability of the Registrar

of Titles or Land Administrator to register the Prohibitory Order into

the respective individual titles of the Properties.

26

It is the submission of the Plaintiffs that the Court possesses the

inherent jurisdiction to promote and preserve the cause of justice

through the due process of the law.

It is further submitted by the Learned Counsel for the Plaintiffs that

the orders sought are within the ambit of the courts inherent

jurisdiction pursuant to s 25(2) of the Courts of Judicature Act

1964 as well as O 92 r 4 of the Rules of the High Court 1980. It is

submitted that it is just and equitable to grant such an order for

following reasons:

(i) The orders will enable the Plaintiffs to appropriately

satisfy the amount due and owing pursuant to the final

judgment from the 2nd Defendant;

(ii) In the absence for such orders, the Plaintiffs would only

be left with a paper judgment notwithstanding the

existence and availability of the 2nd Defendants

Properties for execution;

(iii) In the absence of such orders, the defaulting Defendants

would be allowed to stifle a final and proper judgment of

the Court by relying and capitalizing in a loophole within

the existing framework of the law.

The Learned Counsel submitted that the 2nd Defendant will not be

prejudiced by the orders sought herein since any and all excess sums

27

from the auction or Properties not successfully auctioned, would

indefinitely be held by the Plaintiffs solicitor in trust for the 2nd

Defendant or his estate respectively.

Decision

In the instant case the Plaintiffs sought an order from this Court to

declare that the 2nd Defendant was and is the legal and beneficial

owner of the properties set down below:




Selangor;




Selangor;

1.3 No. 41F, Jalan Hulubalang 26, Taman Sentosa, 41200



Selangor;

1.4 No. 32A-1F, Jalan Dato Dagang 31, Taman Sentosa,



Selangor;

28

1.5 No. 65C-2F, Jalan Dato Dagang 31, Taman Sentosa,



Selangor;

1.6 No. 73B-1B, Jalan Dato Dagang 31, Taman Sentosa,



Selangor;

1.7 Unit No. B-G13, Ground Floor, Block B, Plaza Suria,

Jalan PJU 10/4A, Damansara Damai, 47300 Sungai

Buloh, Selangor held under PN 22332, Lot 70243,


Selangor;

1.8 Unit H/413, Blok H, Saujana Apartment, No. 1, Jalan

PJU 10/1G, PJU 10, Damansara Damai, 47830 Petaling

Jaya, Selangor held under PN 20615, Lot No. 70321,


Selangor;

1.9 Plot No. 67, Phase 1A/514, Lembah Beringin 44110

Kuala Kubu Bahru, Selangor held under Geran 39539,

Lot 1501, Mukim of Sungai Gumut, District of Ulu

Selangor, State of Selangor;

29

1.10 Unit No. 509, Block A, Rumah Pangsa Fasa 2, Bandar

Baru Sungai Buloh, Seksyen U20, 40160 Shah Alam,

Selangor;

1.11 Unit No. A-3-9, Pesona Villa Apartment, Jalan Melati

Indah 1, Saujana Melawati, 53100 Kuala Lumpur held

under GM 427, Lot 18625 (formerly known as HSM

13571), Mukim of Ulu Kelang, Tempat Batu 7 Hulu

Kelang, District of Gombak, State of Selangor;

1.12 No. C-11A-03, Lestari Apartments, Jalan PJU 10/1B,

Damansara Damai, 47830 Petaling Jaya, Selangor held

under PN 22376, Lot No. 70313, Mukim of Sungai

Buloh, District of Petaling, State of Selangor;

1.13 No. 2, C-12-7, Rumah Pangsa Cheras Ria, Jalan 6/95B,

Taman Cheras Utama, Cheras, 56100 Kuala Lumpur;

1.14 PS16-7, Prima Saujana Apartment, No.2, Jalan Wangsa

2/6, Taman Wangsa Permai, 52200 Kuala Lumpur

under held under PM581/M1/17/363, Lot No. 58126,

Bandar Kepong, District of Gombak, State of Selangor;

1.15 No. 10, Tingkat Bawah, Blok 41, Jalan 28/24, Seksyen

28, 40400 Shah Alam, Selangor held under Geran

36258/M3/1/90. Lot No. 21916, Pekan Hicom, District of

Petaling, State of Selangor; and

30

1.16 Unit B4-02, 4th Floor, Block B, Pangsapuri Seri Pulai,

Jalan Balakong Jaya 26, Taman Balakong Jaya, 43300

Seri Kembangan, Selangor.

O. 92 r. 4 of the Rules of the High Court reads as follows,

For the removal of doubts it is hereby declared that nothing in these

rules shall be deemed to limit or affect the inherent powers of the Court

to make any order as may be necessary to prevent injustice or to

prevent an abuse of the process of the Court..

Low Hop Bing J (as he then was) said in Maharin Nisha

Hassan Mohamed v. Panir Selvam Chellamuthu & Anor

[2005] 7 CLJ 289 that Order 92 r 4

is not a carte blanche. There must be a proper basis for it to be invoked.

It has been so succinctly stated by Syed Agil Barakbah SCJ in Permodalan

MBF Sdn. Bhd. v. Tan Sri Datuk Seri Hamzah bin Abu Samah & Ors. [1988] 1

CLJ 244 (Rep); [1988] 1 CLJ 31; [1988] 1 MLJ 178 that where the rules

contain provisions making available sufficient remedies, the court will not

invoke its inherent powers..

Abdul Malik Ishak J (as he then was) in Affin Bank Bhd. v. WT

Low & Ng Realty Sdn. Bhd. [2003] 1 CLJ 674 explained that the

inherent jurisdiction of the Court may be invoked in a variety of

circumstances but,

. there are limits to it. The distinctive feature of the inherent

jurisdiction of the court is that it is exercisable by summary process.

31

The scope of this Order on the inherent jurisdiction of the court is very

wide but as stated by Edgar Joseph Jr. in Pacific Centre Sdn. Bhd. v.

United Engineers (M) Bhd. [1984]2MLJ 143 at 147,

..the inherent jurisdiction powers of the court includes all powers

that are necessary to fulfill itself as a court of law; to uphold, to

protect, and to fulfill the judicial function of administering justice

according to law in a regularly, orderly and effective manner..

The inherent jurisdiction must be applied to do justice to parties

and to secure fairness. It would be of great injustice for this Court to

declare that the Plaintiffs be recognized as the new legal and

beneficial owners, in equal half () shares, of each individual until of

the properties upon the completion or compliance of the following for

each individual unit of the aforesaid properties for the following

reasons:-

1) The aforesaid properties are not properties which the

Plaintiffs themselves have purchased or sold through the

ABC and /or FBC schemes from the Defendants.

2) The properties listed above are not limited to the

properties which the Plaintiffs have purchased or sold but

also included properties purchased and sold by other

investors. There are also other parties/investors that have

participated and invested by either purchasing or selling

the aforesaid properties in the aforesaid ABC and FBC

scheme.

32

Based on the reasons mentioned above I am of the considered view

that this is not a fit and proper case for this court to exercise its

inherent jurisdiction to make the orders as sought by the Plaintiffs.

t.t. ( HASNAH BINTI DATO MOHAMMED HASHIM ) Judicial Commissioner High Court of Malaya Kuala Lumpur.

30th January 2012

Counsels: For the Plaintiff/ Appellant:

Messrs. Mah Weng Kwai & Associates

Jeremy Yong

For the Defendant/Respondent:

Messrs. Teh Soon Kee & Partners

Messrs. Ho-Noecker & Pragasam

2010-05-21 C-12-7 Cheras Ria High Court of Malaya KL (Commercial Division) Rulings

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Transcript of 2010-05-21 C-12-7 Cheras Ria High Court of Malaya KL (Commercial Division) Rulings