Ambank Islamic Berhad 1. Konsortium Bas Ekspress Semenanjung (M) Sdn. Bhd. 2. Datuk Che Azizuddin Bin Che Ismail 3. Gets Global Berhad 4. Santero Sdn. Bhd

Ambank Islamic Berhad 1. Konsortium Bas Ekspress Semenanjung (M) Sdn. Bhd. 2. Datuk Che Azizuddin Bin Che Ismail 3. Gets Global Berhad 4. Santero Sdn. Bhd

Plaintiff satisfied Order 14 prerequisites and established a prima facie case; contractual notice clauses plus certificates of posting established valid service of demand and recall; commodity particulars were shown in murabahah sale contracts; contract permitted variation of profit rate and foreclosure was not a prerequisite to suing guarantors; certificate of indebtedness stands absent evidence of manifest error; defendants failed to raise any triable issue or show prejudice from timing, therefore summary judgment was appropriate.

Citation
22M-313-05/2019 (Mahkamah Tinggi)
Parties
Plaintiff: Ambank Islamic Berhad; 1st Defendant: Konsortium Bas Ekspres Semenanjung (M) Sdn. Bhd.; 2nd Defendant: Datuk Che Azizuddin bin Che Ismail; 3rd Defendant: GETS Global Berhad (Previously known as KBES Berhad); 4th Defendant: Santero Sdn. Bhd.
Court
High Court
Jurisdiction
Malaysia
Judgment Date
23 January 2020
Case Number
22M-313-05/2019 (Mahkamah Tinggi)
Procedural Posture
Commercial Civil Suit (banking/islamic Finance) / Summary Judgment Application (allowed)
Outcome
Plaintiff’s application for summary judgment allowed; Defendants’ applications to strike out dismissed; costs awarded to Plaintiff
Legal Topics
Summary Judgment, Guarantee and Indemnity, Tawarruq, Notice and Service, Foreclosure, Certificate of Indebtedness, Late Payment Charges (ta’widh)
Source Language
Malay/English
Banking Contract Commercial Law Islamic Finance Civil Procedure Summary Judgment Guarantee and Indemnity Tawarruq +4 more

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Parties

Ambank Islamic Berhad

Plaintiff

Konsortium Bas Ekspres Semenanjung (M) Sdn. Bhd.

1st Defendant

Datuk Che Azizuddin bin Che Ismail

2nd Defendant

GETS Global Berhad (Previously known as KBES Berhad)

3rd Defendant

Santero Sdn. Bhd.

4th Defendant

Procedural Posture

Commercial Civil Suit (banking/islamic Finance) / Summary Judgment Application (allowed)

Legal Issues

  1. 1 whether plaintiff issued valid contractual notice/demand prior to suit
  2. 2 whether clause 5 of Master Agency Agreement unlawfully ousts remedies
  3. 3 whether foreclosure of charged property was prerequisite to suing guarantors

Ratio Decidendi

Plaintiff satisfied Order 14 prerequisites and established a prima facie case; contractual notice clauses plus certificates of posting established valid service of demand and recall; commodity particulars were shown in murabahah sale contracts; contract permitted variation of profit rate and foreclosure was not a prerequisite to suing guarantors; certificate of indebtedness stands absent evidence of manifest error; defendants failed to raise any triable issue or show prejudice from timing, therefore summary judgment was appropriate.

Court Disposition

Plaintiff’s application for summary judgment allowed; Defendants’ applications to strike out dismissed; costs awarded to Plaintiff

Orders

  • Application for summary judgment allowed in terms of enclosure 18
  • Defendants' applications to strike out (enclosures 12, 14 and 16) dismissed