KOPERASI AMANAH PELABURAN BERHAD BANK KERJASAMA RAKYAT MALAYSIA BERHAD

WA-22NCvC-143-03/2023 Kand. 43 19/06/2023 11:02:17 IN THE HIGH COURT IN MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA CIVIL SUIT NO: WA-22NCvC-143-03/2023 BETWEEN KOPERASI AMANAH PELABURAN BERHAD (KOPERASI NO: W-4-0996) …. PLAINTIFF AND BANK KERJASAMA RAKYAT MALAYSIA BERHAD .… DEFENDANT GROUNDS OF JUDGMENT Enclosure 5: Plaintiff’s Application for an interim injunction to prohibit the Defendant from executing the order of the High Court dated 25.6.2021 until the disposal of the main suit Introduction [1] In the afternoon of 16.5.2023, this application came before this Court where the Plaintiff sought for an interim injunction to prohibit the 1 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant from enforcing the High Court order dated 25.6.2021, namely (the Plaintiff is the Perayu and the Defendant is the Responden named in the High Court order): (i) Perayu hendaklah pindah keluar daripada Premis Responden atau memberi milikan kosong dalam tempoh tiga (3) bulan iaitu pada dan/atau sebelum 30.9.2021 yang mana Perayu hendaklah terus membayar sewa buanan seperti kadar sewa bulanan yang telah dibayar sewa bulanan yang telah dibayar sepanjang tempoh 2021 iaitu RM74,911.10 sebulan sehingga 30.9.2021; (ii) Sekiranya Perayu gagal untuk pindah keluar dari Premis Responden tersebut/gagal memberi milikan kosong selepas 30.9.2021, maka Perayu hendaklah membayar sewa bulanan berganda (“double rental”) kepada REsponden sehingga urusan pemindahan selesai dan sehingga penyerahan kosong, mana- mana yang terakhir’ dan (iii) Selanjutnya adalah diperintahkan bahawa kesemua hak-hak Responden sepertimana di dalam Perjanjian Penyewaan bertarikhk 4.8.2017 adalah dikekalkan. [2] The High Court order was a decision that dismissed the Plaintiff’s appeal against the Session Court order that ruled against it. This Court after perusing the cause papers, affidavits and taking into account the oral submissions by both parties, dismissed this application to injunct the Defendant from executing and enforcing the High Court order, with costs of RM10,000. 2 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal [3] This Court found that this was not an instant where the equitable relief of an injunction was appropriate. Before detailing the reasons for the said decision to dismiss, below are the salient facts and the chronology of events that led to the application bearing relevance. A Narrative of the Plaintiff’s Case [4] The Defendant, the registered proprietor of the premises with the address of Lot 18.01 Level 18, Menara 2, Menara Kembar Bank Rakyat, No. 33 Jalan Rakyat 50470 Kuala Lumpur had tenanted the premise to the Plaintiff. The tenancy was for three years which was from 1.6.2017 to 31.5.2020. There was a dispute that arose as to the extension of the tenancy that resulted in the Plaintiff seeking a court declaration for an extension of the tenancy. [5] The Plaintiff sought an injunction to stop the Defendant from eviction but it was dismissed by the Session Court on 2.2.2021. The Plaintiff then appealed to the High Court which was also dismissed on 25.6.2021. This is the High Court order that is the subject matter of the application. [6] An application for leave to appeal to the Court of Appeal, against the High Court order was also dismissed on 29.9.2021. Hence, the High Court order of 25.6.2021 that affirmed the Session Court order of 2.2.201 remains in force. There is no extension of tenancy for the premises and the Plaintiff was required to vacate and deliver vacant possession of the premises to the Defendant by 30.9.2021. [7] The Plaintiff was required to pay rent to the Defendant as agreed until 30.9.2021, after of which the Plaintiff was required to pay to the 3 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant double rental amount monthly until the Plaintiff deliver vacant possession of the premises to the Defendant. [8] At the same time, the Plaintiff then filed a suit to injunct the Defendant from evicting the Plaintiff and to set aside the High Court order. This Originating Summons WA-24NCvC-1705-09/2021 (OS 1705) by the Plaintiff cited that the previous High Court decision lacked jurisdiction so the High Court order was null and void. [9] On 24.9.2021 (a week before the dismissal of the Plaintiff’s leave application by the Court of Appeal), the High Court dismissed OS 1705 on the grounds of abuse of the court process. No appeal was lodged against this OS 1705 decision. [10] On 27.3.2023, said to have been prompted by yet another demand by the Defendant for vacant possession of the premises, the Plaintiff lodged this suit. The Defendant then on 7.4.2023 obtained leave to file a writ for possession (the Defendant filed the application on 14.4.2022). So, this had impelled the Plaintiff to file this application to injunct the Defendant from enforcing the High Court order of 25.6.2021 that was effective all the while. The interim injunction application [11] It was the Plaintiff’s submission that the interim injunction was pertinent to maintain the status quo pending the disposal of this suit. Otherwise, this Court heard, the suit would be rendered academic, redundant and nugatory. The Plaintiff further contended that it would suffer irreparable damage to its reputation in the event Awesome TV 4 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal which was currently operating at the premises was constrained to relocate its business activities. The Plaintiff averred that it had spent more than RM1,000,000 for renovation expenses of the premises tenanted from the Defendant. The Plaintiff claimed that damages were an inadequate remedy. The bona fide issues to be tried according to the Plaintiff include: (a) Whether the High Court had jurisdiction to grant such orders on 25.6.2021; (b) Whether the High Court order was null and void due to lack of jurisdiction and ought to be set aside; (c) Whether the High Court order was granted in breach of trite law that parties were bound by their pleadings; (d) Whether the High Court order was granted in breach of the rules of natural justice; (e) Whether the Plaintiff was given an opportunity to be heard; (f) Whether the Plaintiff was denied a fair and impartial hearing; and/or (g) Whether the High Court had exceeded its jurisdiction in granting the order on 25.6.2021. The Analysis and Decision of this Court [12] From the outset, this Court finds that this application (Enclosure 5) to move the court for an equitable order of injunction is an abuse of the 5 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal court process. In essence, the Plaintiff is seeking to injunct and prohibit the Defendant from executing the High Court order of 25.6.2021. There was no application to stay the High Court order of 25.6.2021 nor was there an appeal against the OS1705 decision, which to this Court’s mind is the correct avenue to temporarily freeze/stay, so to speak, the execution of the same. Thus, the High Court order dated 25.6.2023 and OS1705 have been rendered final, there being no extant appeal. Once the order has been perfected and regularly obtained, the Court is functus officio to hear the same matter. As such, the matter is now res judicata and cannot be relitigated. The Court of Appeal in Pembangunan Tanah dan Perumahan Sdn Bhd v Raja Qahaarruddin Raja Abdul Aziz [2020] 2 CLJ 519 held that; “There must be an end to all litigation involving the same issue either because the affected party had not exercised its right of appeal or that it has exhausted all avenues of setting aside the impugned judgment or subsequent consent order.” [13] There were earlier attempts to attain the objective of continued tenancy and evade eviction of the premises – the High Court order of 25.6.2021 was the result, as with the dismissal of OS 1705. This application for the interim injunction was clearly an abuse of the court process (in fact from this viewpoint, this suit lodged as well). The issues put forth and argued as serious bona fide triable issues had been dealt with on numerous occasions by our courts at three different levels. [14] The Plaintiff action amounted to the same action on a third attempt. The principle of res judicata wholly applied in this instant. The Supreme 6 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal Court in Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 premised its decision on the principle: “What is res judicata? It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicatum. When a matter between two parties has been adjudicated by a court of competent jurisdiction, the parties and their privies are not permitted to litigate once more the res judicata, because the judgment becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur. The public policy of the law is that, it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium. It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa. Both maxims are rationales for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.” [15] Authorities that bound this Court affirmed that the Plaintiff’s action was equivalent to an attempt to re-litigate the same issues raised several times earlier – the Court of Appeal held in David Cheah Seng Chye v So Miau Song & Ors & Other Appeals [2023] 5 CLJ 20 that the High Court Judge Justice Ahmad Shahrir Mohd Salleh was correct in applying the principle of res judicata on a matter before him which was litigated and adjudicated earlier to which there was no appeal. [16] The Plaintiff in seeking the equitable relief for an order to injunct another must come with clean hands. This action was obviously tarnished by its numerous attempts to open litigation before the courts. Moreover, 7 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal this Court noted that there was considerable delay to seek for this order which the Plaintiff claimed was pertinent to preserve the status quo. The High Court order of 25.6.2021 had been effective since it was meted out. The Defendant had made numerous requests for the delivery of vacant possession of the premises to no avail. The Plaintiff were highly aware and had full knowledge of their legal obligations mandated by the High Court order. So, even on the principle of inordinate delay, this application cannot succeed – see Kasim Musa & 3 Ors v Maniam Raman [2000] 1 LNS 387. [17] On the other hand, there were glimpses of bad faith on the part of the Plaintiff as Enclosure 5 to apply for an interim injunction was filed on 20.4.2023, after the Defendant had obtained leave for writ of possession two weeks prior. [18] Nevertheless, for such an application, consideration must be made as to whether there were serious questions to be tried, whether damages would be an adequate remedy and whether the balance of convenience or justice of the case; as per American Cyanamid Co v Ethicon Ltd [1975] q All ER 504 and Keet Gerald Francis Noel John v Mohd Noor @ Harun bin Abdullah & 2 Ors [1995] 3 BLJ 254. [19] This Court doubted the issues that the Appellant argued as serious bona fide issues to be tried warranted the grant of the injunction prayed for. They had been adjudicated in the previous suits. A re-litigation of the issues must not be allowed as it was estopped by the principle of res judicata. 8 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal [20] This Court further was not satisfied that damages were not an adequate remedy. The expenses spent were quantifiable. The Plaintiff’s action was premised on tenancy, not ownership of the premises. Interlocutory order for an interim injunction would not be suitable – Associated Tractors Sdn Bhd v Chan Boon Heng & Anor [1990] 1 CLJ (Rep) 30. [21] This Court considered the truth borne out of the High Court order of 25.6.2021 which was the fact that the Defendant, the legal and rightful owner of the premises, had an immediate right by 30.9.2021 to the vacant possession of the same. The Defendant was also entitled to all the rentals due from the Plaintiff – double rental from 30.9.2021 onwards. [22] The balance of convenience and justice in the case was with the Defendant. Almost two years later, the Defendant had yet to enjoy the fruits of litigation. The Supreme Court’s decision in Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [1995] 1 CLJ 461 had reference, the test iterated as follows: “On the one hand, there is a risk that if the interlocutory injunction is refused but the plaintiffs succeed in establishing at the trial their legal rights to the protection for which the injunction has been sought they may in the meantime have suffered harm and inconvenience or monetary loss for which an award of money can provide no adequate recompense. On the other hand, there is the risk that if the interlocutory injunction is granted but the plaintiffs fail at the trial, the defendants may in the meantime have suffered harm and inconvenience which is similarly irrecompensable.” 9 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal [23] The Federal Court ruled in S&M Jewellery Trading Sdn Bhd & Ors v Fui Lian-Kwong Hing Sdn Bhd [2015] 8 CLJ 16 that equity would not allow any party to allege a tenancy existed when it was terminated. In this instant before this Court, there was confirmation in the most certain clarity that the Plaintiff was to vacate the premises and deliver vacant possession of the same to the Defendant. [24] This Court had also noted that the Plaintiff had omitted to provide full and frank disclosure on the fact that they had attempted to set aside the High Court order of 25.6.2021 before but had failed. OS 1705 was not disclosed and this Court found that to be a material fact. The Plaintiff thus had not complied with Order 29 Rule 2A (e) and (f) of the Rules of Court 2012 (RoC). Order 29 Rule 2A provided that the affidavit in support of an ex-parte application must contain a clear and concise statement of: “(e) any facts which may lead the Court not to grant the application ex parte or at all; (f) any similar application made to another Judge, and the order made on that application;” [25] This Court found that the Plaintiff had not been entirely honest in seeking this equitable relief. This would also amount to an abuse of the court process (see Ho Num Chon & Anor v Tech-Lab Manufacturing Sdn Bhd [2017] 9 MLJ 32 and Penang Port Commission v Kanawagi s/o Seperumaniam [2008] 6 MLJ 686). 10 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [26] Based on the above, this Court did not allow the application. Enclosure 5 for an interim injunction preventing the Defendant to enforce the High Court order of 25.6.2021 is hereby dismissed with costs of RM10,000. DATED 16 JUNE 2023 ROZ MAWAR ROZAIN JUDICIAL COMMISSIONER HIGH COURT IN MALAYA KUALA LUMPUR For the Plaintiff: Sri Dev Nair together with Shamalah Selvarajah and Mohd Hafiz Bin Mahmund T/n Bodipalar Ponnudurai De Silva For the Defendant: Muhammad Ali Redha Bin Ahmad Rashidi together with Mohd Munzeer bin Zainul Abidin and Mohammad Zaid Bin Daud @ Daud Yatimee T/n Yusfarizal, Aziz & Zaid 11 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 S/N TIOgElXlE2E7UOn8gGoA **Note : Serial number will be used to verify the originality of this document via eFILING portal