LUCASARK CAPITAL LAND SDN BHD (NO. SYARIKAT: 86743-U) 1. LOO GEOK IMM (NO. K/P: 530310-07-5410) 2. TAN CHEONG KEAN (NO. K/P: 520222-07-5489) 3. CIMB BANK BERHAD (NO. SYARIKAT: 13491-P)

DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG GUAMAN SIVIL NO: PA-22NCVC-130-08/2020 ANTARA LUCASARK CAPITAL LAND SDN BHD … PLAINTIF (NO. SYARIKAT: 86743-U) DAN 1. LOO GEOK IMM (NO. K/P: 530310-07-5410) 2. TAN CHEONG KEAN (NO. K/P: 520222-07-5489) 3. CIMB BANK BERHAD (NO. SYARIKAT: 13491-P) … DEFENDAN-DEFENDAN (MENGIKUT TINDAKAN ASAL) DAN ANTARA LOO GEOK IMM (NO. K/P: 530310-07-5410) … PLAINTIF DAN 1. LEE WENG KOK (NO. K/P: 640310-07-5063) 1 2. TAN SIOK BE (NO. K/P: 740110-07-5374) 3. UNITED OVERSEAS PARTNERS SDN. BHD. (NO. SYARIKAT: 889761-W) 4. LUCARASRK CAPITAL LAND SDN. BHD. (NO. SYARIKAT: 86743-U) … DEFENDAN-DEFENDAN (MENGIKUT TUTUTAN BALAS) GROUNDS OF JUDGEMENT Introduction [1] Two enclosures were heard together, as follows: - (i) Enclosure 19 - the plaintiff’s application under Order 18, rule 19 (a), (b), (c) and/or (e) and/or Order 92, rule 4, Rules of Court 2012 (“ROC 2012”) to strike out the 2nd defendant’s Defence on the basis that it is frivolous, vexatious and/or is an abuse of process; and (ii) Enclosure 21 - the plaintiff’s application to strike out the 1st defendant’s Counterclaim against the plaintiff pursuant to Order 18, rule 19 (a), (b), (c) and/or (e) and/or Order 92, rule 4, ROC 2012. [2] Therefore, these grounds of judgment with deal with both the applications concurrently. 2 Brief Background Facts [3] The following back ground facts are gleaned from the relevant cause papers and the submissions of the parties. [4] The plaintiff had through a Sale and Purchase Agreement dated 26/09/1994 purchased a property from Lip Sin Company Sdn Bhd for RM1,008,707.10 and the said consideration was contributed by the 1st and 2nd defendants. [5] By way of a Joint Venture Agreement dated 17/05/2004 and a Supplemental Joint Venture Agreement dated 08/09/2006 between the plaintiff (previously known as Pan Palace Holdings Sdn Bhd) and Bukit Gambier Land Bhd (“BG Land”), the parties had agreed to develop the said property to be multi-storey commercial building known as Pan Palace Plaza. [6] Through a Sale and Purchase Agreement dated 23/12/2007, between the plaintiff and BG Land, wherein BG Land agreed to sell and the plaintiff agreed to purchase the units in Pan Palace Plaza as contained in Schedule 3 of the said Sale and Purchase Agreement (“SPA 1”) for a purchase price of RM6 million, which to date is yet to be paid by the plaintiff. [7] Subsequently, by way of a Tenancy Agreement dated 12/06/2008, the plaintiff had entered into an agreement with Suiwah Supermarket & Departmental Store Sdn Bhd (currently known as “Sunshine Paramount Sdn Bhd”) (“Suiwah”) wherein the plaintiff agreed to rent out to Suiwah, Basement 1 for the period of 12 years beginning 01/08/2008 till 31/07/2020 (“Tenancy Agreement”). [8] Suiwah continues to occupy Basement 1. However, in view of the present dispute with regards to the ownership of Basement 1, the 3 monthly rent is paid to the solicitors of Suiwah, Messrs. Ghazi & Lim, who holds the monthly rent as trustees pending the disposal of this suit. [9] Thereafter, the 1st defendant entered into a Sale and Purchase Agreement dated 19/10/2009 (“SPA 2”) with the plaintiff, wherein the plaintiff agreed to sell and the 1st defendant agreed to purchase Basement 1 of Pan Palace Plaza. [10] SPA 2 was approved by the plaintiff’s directors, who at the time, were the 1st and 2nd defendants, by way of a Director’s Resolution dated 19/10/2009 in which, inter alia, it was decided that Basement 1 is to be sold to the 1st defendant for RM11,508,000.00. [11] Subsequently via Director’s Resolution dated 26/10/2009, it was, inter alia, decided that the plaintiff would give a discount to the 1st defendant, whereby, Basement 1 is to be sold at a nominal sum of RM1.00 and the said amount was paid by the 1st defendant on the same day. [12] With the completion of the transaction under SPA 2, the 1st defendant became the beneficial owner of Basement 1 and the same was communicated to the plaintiff by the 3rd defendant by way of letter dated 09/12/2009. [13] On 23/12/2009, the 1st and 2nd defendants entered into a loan agreement with the 3rd defendant and obtained a loan of RM2.5 million and as consideration and as loan security, the 1st defendant assigned Basement 1 to the 3rd defendant via a Deed of Assignment dated 23/13/2009 (“Deed of Assignment”). [14] Since 09/12/2009, the 1st defendant entrusted the plaintiff to collect the rent from Suiwah. 4 [15] During the first quarter of 2011, the 1st, 2nd and 3rd defendants in the Counterclaim (“Lee, Tan and UOP”) conveyed to the 1st and 2nd defendants, of their offer to purchase the entirety of the Pan Palace Plaza building for the sum of RM32 million, subject to the condition that Basement 1 would be part of the purchase. [16] The 1st defendant was agreeable to the offer and was prepared to release her beneficial interest in Basement 1 to the plaintiff. [17] Meanwhile, Lee and/or Tan and/or UOP had carried out all reasonable due diligence on the plaintiff. [18] Then, the 2nd defendant issued a letter on behalf of the plaintiff to the 1st defendant to inform her that SPA 2 had been terminated and the said letter was backdated to 21/02/2010. Thus, the plaintiff continued to be the beneficial owner of Basement 1. [19] Next, UOP and the plaintiff entered into a Sale and Purchase Agreement dated 19/04/2011 in which the plaintiff agreed to sell and UOP agreed to buy the entire Pan Palace Plaza building, including Basement 1 for the amount of RM32 million (“SPA 3”). [20] As a private securities bond to ensure the completion of all the terms and conditions of SPA 3, the 1st and 2nd defendants agreed to contribute RM1 million as a fixed deposit with the 3rd defendant as security document for UOP’s overdraft facility. [21] The fixed deposit of RM1 million contributed by the 1st and 2nd defendants is part of the loan of RM2.5 million given by the 3rd defendant and UOP and/or Lee and/or Tan relied on the fixed deposit to release the overdraft facility granted by the 3rd defendant. 5 [22] Nevertheless, UOP terminated SPA 3 prior to its completion on 15/06/2012 and till 15/06/2012, Lee and/or Tan and/or UOP had paid the plaintiff RM6.4 million which is part payment of the purchase price of RM32 million. [23] On termination of SPA 3, the plaintiff forfeited RM6.4 million as liquidated ascertained damages (“the amount forfeited”). [24] According to the 1st defendants, with the termination of SPA 3, the 1st defendant remained as the beneficial owner of Basement 1. [25] Thereafter, the 1st and 2nd defendants entered into a Share Sale Agreement dated 15/06/2012 (“Share Sale Agreement”) with UOP, whereby, the 1st and 2nd defendants agreed to sell and UOP agreed to purchase all of the 1st and 2nd defendants’ shares in the plaintiff for the sum of RM7.4 million, since Basement 1 was no longer part of the deal. [26] Further, it was agreed by the parties that the RM6.4 million required to be paid by Lee and/or Tan and/or UOP, will be by way of using the amount forfeited and the balance of RM1 million is to be paid by Lee and/or Tan and/or UOP by using their own funds. [27] Hence, the amount forfeited was not credited to the plaintiff, as it was used to assist Lee and/or Tan and/or UOP to purchase the plaintiff’s own shares. [28] Upon completion of the sale, UOP became the sole shareholder of the plaintiff and Pan Palace Holdings Sdn Bhd’s name was changed to Lucasark Capital Land Sdn. Bhd i.e., current name of the plaintiff. [29] According to the plaintiff, the plaintiff was unaware the the 1st defendant had used the SPA 2 to obtain a loan from the 3rd defendant, 6 wherein the 1st defendant had used Basement 1 as a security for the said loan and had assigned Basement 1 to the 3rd defendant. [30] Aggrieved by the existence of the Deed of Assignment, on 18/04/2019, the plaintiff filed Originating Summons No: 24NCVC- 362-04/2019 at the Penang High Court seeking a declatory order that the assignment to the 3rd defendant was of no effect. [31] The plaintiff contended that the resolutions dated 19/10/2009, 21/10/2009 and 31/10/2009 were in contradiction with the loan and banking documents and as such are instruments of a fradulent scheme to misrepresent to the plaintiff that the 1st and 2nd defendants were still the owners of Basement 1. [32] After Lee and/or Tan and/or UOP had taken over the plaintiff from the 1st and 2nd defendants, Lee and/or Tan and/or UOP sold and/or rented out the retail units in Pan Palace Plaza for their own benefit. [33] After 15/06/2012, the 1st defendant entrusted the plaintiff and/or Lee and/or Tan and/or UOP to collect the rent from Suiwah on behalf of the 1st defendant, as at the material time, the 1st defendant is the beneficial owner of Basement 1. [34] On 14/03/2019, the 1st defendant via her solicitors, Messrs. Henry Soong & Partners, issued a letter to the plaintiff requesting the statement of accounts of the rent collected thus far and all outgoings relating to Basement 1. However, there was no response from the plaintiff. [35] The 1st and 2nd defendants contended that at all material times, the plaintiff and/or Lee and/or Tan and/or UOP were aware that the 1st defendant is the beneficial owner of Basement 1, as it is evidenced by the fact, from 2012 until 2018, every year when the 3rd defendant 7 requested the 1st and 2nd defendants to provide a copy of the fire insurance policy for Basement 1, the plaintiff and/or Lee and/or Tan and/or UOP would provide a copy of the fire insurance policy to the 1st and 2nd defendants, in order for them to fulfil the 3rd defendant’s request. Plaintiff’s Case [36] The plaintiff’s case against the defendants, are essentially, as follows that: - (i) the Deed of Assignment is null and void because the assignment made no reference to Basement 1; (ii) on 10/01/2014 the plaintiff informed the 3rd defendant that the Deed of Assignment was null and void and therefore Basement 1 belongs to the plaintiff; (iii) any assignment pursuant to SPA 2 is null and void as SPA 2 was never completed; (iv) the resolutions dated 19/10/2009, 26/10/2009 and 31/10/2009 are instruments of a fraduleuent misrepresentaion by the 1st and 2nd defendants; and (v) the resolutions are null and void in light of the entering of the Share Sale Agreement. [37] In respect of enclosure 19, the plaintiff contended that the 2nd defendant’s Defence, does not disclose any reasonable defence, does not set out any case of his own nor disclose any spesific details. 8 [38] According to the plaintiff, 2nd defendant’s defence is in the nature of “holding over” and bare denial. It was also submitted that the 2nd defendant had not presented any facts and/or averments to rebut the plaintiff’s case. [39] Thus, the plaintiff submitted that the 2nd defendant’s pleadings does not disclose any challenge to the facts averred by the plaintiff and as such, the 2nd defendant’s Defence ought to be struck out and judgment entered against the 2nd defendant. [40] With regard to enclosure 21, the plaintiff contended that the 1st defendant’s Counterclaim ought to be struck-out, for reasons, as follows: - (i) the reliefs sought by the 1st defendant in the Counterclaim is not capable of being granted under the law because it stems from the misinterpretation of the provisions in section 67, Companies Act 1967 (“CA 1967”); and (ii) the Counterclaim is time barred pursuant to section 6, Limitation Act 1953 (“LA 1953”). [41] The plaintiff submitted that section 67(6), CA 1967, creates an exception and excludes the operation of section 24, Contracts Act 1950, in respect of the 1st defendant’s Counterclaim that the plaintiff had purportedly received financial assistance from the plaintiff for the purchase of its own shares. [42] Thus, the plaintiff contended that the 1st defendant’s Counterclaim is bound to fail, is frivolous, vexatious, unsustainable and/or will only delay the fair trial of the action. 9 [43] The plaintiff also argued that the 1st defendant’s Counterclaim is barred by limitation because the Share Sale Agreement was entered into on 15/06/2012 and therefore any action to nullify the Share Sale Agreement would have to be filed within 6 years i.e., on or before 14/06/2018. And, that there is nothing in the 1st defendant’s pleadings to suggest that the time period has been extended and/or enlarged. 1st and 2nd Defendant’s Case [44] In respect of enclosure 19, it was contended that the 2nd defendant’s Defence has disclosed a reasonable defence and that there are triable issues of fact and law, as follows: -. (i) the plaintiff’s claim is premised upon an allegation of fraud and/or fraudulent misrepresentation which raises triable issues, and such serious allegations can only be tested in a trial by viva voce evidence; and (ii) the 2nd defendant has raised a triable issue on limitation, as the plaintiff’s claim is premised on purported events which first occurred in 2009. However, the plaintiff only filed this suit about 11 years later, on 04/08/2020. Since, the plaintiff’s claim of fraudulent misrepresentation comes under the tort of deceit, the plaintiff must bring its claim within 6 years. [45] The 2nd defendant also submitted that the plaintiff’s ground for striking out is without basis because the plaintiff has mistakenly treated the 2nd defendant’s holding Defence as a defence of “holding over”. In any event, a holding Defence is effective and operative as a Defence. 10 [46] Thus, the 2nd defendant contended that this is not a fit and proper case to strike out his Defence. [47] As for enclosure 21, the 1st Defendant’s Defence and Counterclaim are founded, inter alia, on the following reasons: - (i) the Share Sale Agreement was tainted with illegality and therefore, null and void and unenforceable; (ii) the issue of fraud has been raised; (iii) the plaintiff is time barred from bringing this action against the 1st defendant; and (iv) the plaintiff and/or Lee and/or Tan and/or UOP cannot unjustly enrich themselves. [48] Further, it was pointed out that the plaintiff had only applied to strike out the 1st defendant’s Counterclaim and not the Defence. Thus, the 1st defendant argued that the plaintiff has conceded that the 1st defendant’s Defence has merit and/or is not frivolous or vexatious. And since the Counterclaim is based on the same reasonings as the Defence which is meritorious in nature, it must therefore follow that the Counterclaim is in essence also meritorious. [49] Hence, the 1st defendant contended that there are four (4) issues to be determined, as follows: - (i) whether the 1st defendant has locus standi to pray for the reliefs in the Counterclaim against the plaintiff; (ii) whether the 1st defendant is time barred from bringing the Counterclaim against the plaintiff; 11 (iii) whether the relief sought by the 1st defendant in the Counterclaim in relation to breach of Section 67, CA 1965 can be granted; and (iv) whether the averments of facts by the 1st defendant raised a triable issue of fraud. The Law [50] Order 18, rule 19 (1), ROC 2012, provides, “Striking out pleadings and endorsements (O. 18, r. 19) 19. (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that— (a) it discloses no reasonable cause of action or defence, as the case may be; (b) it is scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” [51] The principle for striking out pleadings pursuant to Order 18, rule 19(1), ROC 2012 is well settled. It is applicable only in a plain and obvious case or where a claim is, on the face of it, obviously unmaintainable. 12 [52] In the Supreme Court decision in Bandar Builder Sdn Bhd v. United Malayan Banking Corporation [1993] 3 MLJ 36, Mohamed Dzaiddin SCJ (as he then was), delivering the judgment of the court, in respect of Order 18 rule 19(1) of the Rules of High Court 1980 (which is in pari materia with Order 18 rule 19(1), ROC), said: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the RHC are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7, and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it 'obviously unsustainable' (see AG of Duchy of Lancaster v L & NW Rly Co 8). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (see Wenlock v Moloney & Ors 9). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O 33 r 3 (which is in pari materia with our O 33 r 2 of the RHC) (see Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd 7). The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” [Emphasis added] 13 [53] Further, in Seruan Gemilang Makmur Sdn. Bhd. v. Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, the Federal Court, enunciated as follows, “The tests for striking out application under O. 18 r. 19 of the ROC, as adopted by the Supreme Court in Bandar Builder (supra) are, inter alia as follows: (a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule; (b) this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it 'obviously unsustainable'; (c) it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence; (d) If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 of the ROC; and (e) The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” Findings Enclosure 19 [54] Since the plaintiff’s claim is premised upon an allegation of fraud and/or fraudulent misrepresentation committed by the 1st and 2nd defendants in claiming that Basement I belonged to the 2nd defendant, this raises a triable issue as the plaintiff’s evidence of 14 fraud and/or fraudulent misrepresentation must be presented and tested at the trial. This Court is not in a position to make a determination on the plaintiff’s allegations of fraud and/or fraudulent misrepresentation by merely scrutinising affidavit evidence. [55] The Federal Court in Seruan Gemilang (supra), held, “[34] The case of Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346; [2001] 2 CLJ 321 is a good example involving an action to set aside an earlier judgment of a court on ground of fraud, and the court dealt with it in a full trial, but not in a summary striking out process. In that case, the Court of Appeal stressed on the requirement that the allegation of fraud must be established by evidence, and affirmed that whether the test has been met in any given case must depend on the facts and circumstances of the particular case and evidence needs to be adduced during trial.” [Emphasis added] [56] Similarly, in Sarwan Singh a/l Kundan Singh v Aminah binti Faudzar [2020] MLJU 1230, the Court of Appeal, observed, “[17] It is trite that fraud can only be proved by oral evidence at a trial by the examination of witnesses and cross-examination is essential to determine the truth of the fraud pleaded. Thus on this score, we are of the considered view that the learned Judge erred when His Lordship stated, “If there was indeed a fraud that had been perpetrated on the court in the previous action [Suit 381], then the plaintiff was the principal actor of that fraud.” In our judgment it is not open for the learned Judge to make such an assumption without the benefit of viva voce evidence.” [Emphasis added] 15 [57] Thus, I agree with the submissions of 2nd defendant that in wanting to strike out the 2nd defendant’s Defence, the plaintiff appears to be attempting to circumvent its burden of proving fraud at trial and deprive the 2nd defendant the opportunity to cross-examine witnesses of the alleged fraud. In any event, the plaintiff’s allegation of fraud and/or fraudulent misrepresentation cannot be deemed proven, even if a Defence is not filed. [58] Hence, I find that the plaintiff’s application in enclosure 19 is an abuse of the process of court. [59] Additionally, I find that the 2nd defendant has raised a triable issue on limitation as the Court of Appeal in CB Land Sdn Bhd v Perunding Hashim & Neh Sdn Bhd [2016] 6 MLJ 320, found limitation to be a triable issue. [60] The plaintiff’s claim is premised on purported events that first occurred in 2009. However, the plaintiff had only filed this suit on 04/08/2020 i.e., about 11 years later. And since the plaintiff’s claim of fraudulent misrepresentation comes under the tort of deceit, pursuant to section 6, LA 1953, the claim must be brought within 6 years, which in this instance, is not the case. [61] I also find the plaintiff’s contention that the 2nd defendant’s holding defence, is a defence of “holding over” to be misconceived and wrong in law. It is trite law that a holding defence is effective and operative as a valid defence. (See - N'Dow v Timmis Desai Solicitors, [1998] Lexis Citation 2360 and Maes Finance Ltd and another v A.L. Phillips & Co. (A Firm), [1997] Lexis Citation 2283) 16 [62] Therefore, I am satisfied that the plaintiff’s application in enclosure 19 is devoid of merit. Enclosure 21 [63] In respect of the plaintiff’s contention that the 1st defendant does not have locus standi to seek the reliefs in the Counterclaim, I find that the 1st defendant as the former shareholder and director of the plaintiff and as one of the parties involved in the Share Sale Agreement, the 1st defendant has a direct interest in the consequences of the Share Sale Agreement i.e., any infringement of 1st defendant’s legal right affecting her interest in the matter. (See – Transnasional Express Sdn Bhd & Ors v Tan Chong Industrial Equipment Sdn Bhd [2020] 7 CLJ 769) [64] I further hold that the 1st defendant has the requisite locus standi to seek the reliefs in relation to section 67, CA 1965, due to the relationship that exists between 1st defendant and the plaintiff through her former position at the plaintiff and by virtue of privity of contract. [65] I also agree with 1st defendant’s submission that as the beneficial owner of Basement 1, the 1st defendant has locus standi to file the Counterclaim since the plaintiff is alleged to have infringed the 1st defendant’s legal rights via the Writ and the Statement of Claim. [66] As for the plaintiff’s contention that the 1st defendant is time barred under the LA 1953 to commence the Counterclaim, it is pertinent to note that although the fraudulent activity occurred more than 6 years ago, it appears only to have been discovered when the 1st defendant requested for the statement of accounts for the rent collected thus 17 far and all outgoings relating to Basement 1 and that the plaintiff had only filed the writ action on 04/08/2020. [67] Section 29 LA 1953, stipulates, as follows: - “Where, in the case of any action for which a period of limitation is prescribed by this Act, either: (a) the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or (b) the right of action is concealed by the fraud of any such person as aforesaid; or (c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it: ...” [Emphasis added] [68] Therefore, the time limitation only begins to run when the fraud was discovered on 14/03/2019 i.e., when the 1st defendant’s solicitors issued a letter to the plaintiff requesting the statement of accounts relating to the rent collected thus far and all outgoings relating to Basement 1. Hence, I hold that the Counterclaim is within the time limit. [69] It is also averred that the plaintiff had assisted UOP to buy the plaintiff’s shares from the 1st and 2nd defendants. This is in contravention with section 67, CA 1965. 18 [70] Section 67, CA 1965, states, as follows: - “(1) Except as is otherwise expressly provided by this Act no company shall give, whether directly or indirectly and whether by means of a loan, guarantee or the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase or subscription made or to be made by any person of or for any shares in the company or, where the company is a subsidiary, in its holding company or in any way purchase, deal in or lend money on its own shares. ... (3) If there is any contravention of this section, the company is, notwithstanding section 369, not guilty of an offence but each officer who is in default shall be guilty of an offence against this Act.” [71] Therefore, if the purchase of the shares in the plaintiff was tainted with illegality, it will then be considered null and void and unenforceable under section 24, Contracts Act 1950. See - Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356. [72] Section 24, Contracts Act 1950, provides, as follows: - “The consideration or object of an agreement is lawful, unless – (a) it is forbidden by a law; (b) it is of such a nature that, if permitted, it would defeat any law; (c) it is fraudulent; (d) it involves or implies injury to the person or property of another; or (e) the court regards it as immoral, or opposed to public policy. 19 In each of the above cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” [Emphasis added] [73] Thus, I am unable to agree with the plaintiff’s submissions that section 67(6), CA 1967, creates an exception and excludes the operation of section 24, Contracts Act 1950. [74] Further, Section 66, Contracts Act 1950, stipulates, as follows: - “When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under the agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” [75] Accordingly, the purchase of the shares is susceptible to be rescinded and in such an event, UOP who has unjustly benefited from the purchase of the shares, would have to return the shares to the 1st and 2nd defendants. [76] Hence, if the said financial assistance to purchase the plaintiff’s share is proven, this Court will be able to grant the reliefs prayed for by the 1st defendant in relation to the alleged breach of section 67, CA 1965. [77] I also find that the 1st defendant has particularised the facts of the fraudulent acts allegedly committed by the plaintiff. Therefore, I am satisfied that the Counterclaim does not consist of just allegations, without sufficient facts on which the claims rest. The facts pleaded in the Counterclaim, also show that there is a triable issue of fraud. [78] Hence, it is my considered view that the 1st defendant must be given an opportunity to adduce evidence to support the pleaded 20 allegations. It would be premature to strike out the Counterclaim without the 1st defendant given the opportunity to prove the Counterclaim. [79] In addition, I am also in consensus with the submissions of the 1 st defendant that since the plaintiff had only applied to strike out the 1st defendant’s Counterclaim and not the Defence, this implied that the plaintiff accepted that the1st defendant’s Defence has merit and/or is not frivolous or vexatious. [80] Therefore, as the Counterclaim is based on the same reasonings as the Defence which is of merit, it follows that the Counterclaim is in essence also of merit. Conclusion [81] For the reasons explained above, applying the principles laid down in Bandar Builder (supra) and Seruan Gemilang Makmur (supra), I am satisfied that the 2nd defendant Defence does have a reasonable or maintainable defence and is not obviously unsustainable against the plaintiff’s action and that the 1st defendant has a reasonable or maintainable cause of action in the Counterclaim. [82] Accordingly, I find that this is not a plain and obvious case for the 2nd defendant’s Defence and the 1st defendant’s Counterclaim to be summarily struck out pursuant to Order 18, rule 19 (a), (b), (c) and/or (e) and/or Order 92, rule 4, ROC 2012, as the same are not scandalous, frivolous, vexatious and an abuse of the process of the court. 21 [83] Therefore, it is ordered, as follows: - (i) enclosure 19 is dismissed with costs of RM 5,000.00, subject to the payment of allocatur fee; and (ii) enclosure 21 is dismissed with costs of RM 5,000.00, subject to the payment of allocatur fee. Dated: 6th September 2021 (GEORGE VARUGHESE) Judicial Commissioner High Court Penang For the Plaintiff: Reza Rahim [Messrs Reza Rahim & Rajivan] For the Defendant: Karin Lim Ai Ching & Terry Lim [Messrs Presgrave & Matthews] 22