Kanarasan G., Malathi Natarajan [GHANDI KLANG] Kanesan Muthusami, Sharmilla a/p Kanesan [M. KANESAN & ASSOC. (PENANG)]

DALAM MAHKAMAH TINGGI MALAYA Di PULAU PINANG DALAM NEGERI PULAU PINANG MALAYSIA GUAMAN SIVIL NO. 22NCVC-197-09/2019 Antara —_ M. RM. SP. V. Subrahmanyan Chettiar @ V. Subramanian s/o M. RM. SP. V. Venkatachalam Chettiar (Indian Passport No. H 8720966) 2. M.RM. SP. V. Lakshmanan Chettiar @ V. Lakshmanan s/o M. RM. SP. V. Venkatachalam Chettiar (Indian Passport No. H 8720967} ... Plaintif-Plaintif Dan 1. Swaminathan Swetharanyam @ SM. Swetharanyam a/l Swaminathan Chettiar @ M. RM. SP. SM. Swetharanyam (NRIC No. 420204-71-5529) 2. M. RM. SP. V. Chidambaram Chettiar s/o M. RM. SP. SM. Venkatachalam Chettiar (Indian Passport No. X518998) ... Defendan-Defendan JUDGMENT [1] This is an application by the defendants to strike out the plaintiffs’ writ and statement of claim under Order 18 rule 19(1)}(d) of the Rules of Court 2012 (enclosure 29). The plaintiff contended that the civil suit was a probate action which did not comply with Order 72 of the Rules of Court 2012 and the plea of res judicata has rendered the said civil suit or part thereof an abuse of the process of the court. [2] On 13.12.2021, | dismissed the application. This judgment contains the reasons for my decision. Background Facts [3] The case concerns a dispute concerning the administration of the estate of one Venkatachalam Chettiar who passed away testate on 8.3.1985 (“the deceased” and “the estate”). The grant of probate for the estate was issued on 26.10.1993. The beneficiaries of the estate are the two plaintiffs and the 2" defendant. The executors of the estate are Swaminathan Chettiar, since deceased, the defendants and the 2" plaintiff. The plaintiffs and the 2" defendant are Indian nationals residing in India while the 18! defendant, a Malaysian citizen, is the only executor of the estate within jurisdiction and who has direct control over assets of the estate. 2 DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG MALAYSIA GUAMAN SIVIL NO. 22NCVC-197-09/2019 Antara 1. M. RM. SP. V. Subrahmanyan Chettiar @ V. Subramanian s/o M. RM. SP. V. Venkatachalam Chettiar (Indian Passport No. H 8720968) 2. M.RM. SP. V. Lakshmanan Chettiar @ V. Lakshmanan s/o M. RM. SP. V. Venkatachalam Chettiar (Indian Passport No. H 8720967) .. Plaintif-Plaintif Dan 1. Swaminathan Swetharanyam @ SM. Swetharanyam a/l Swaminathan Chettiar @ M. RM. SP. SM. Swetharanyam (NRIC No. 420204-71-5529) 2. M. RM. SP. V. Chidambaram Chettiar s/o M. RM. SP. SM. Venkatachalam Chettiar (Indian Passport No. X518998) ... Defendan-Defendan JUDGMENT [1] This is an application by the defendants to strike out the plaintiffs’ writ and statement of claim under Order 18 rule 19(1)}(d) of the Rules of Court 2012 (enclosure 29). The plaintiff contended that the civil suit was a probate action which did not comply with Order 72 of the Rules of Court 2012 and the plea of res judicata has rendered the said civil suit or part thereof an abuse of the process of the court. [2] On 13.12.2021, | dismissed the application. This judgment contains the reasons for my decision. Background Facts [3] The case concerns a dispute concerning the administration of the estate of one Venkatachalam Chettiar who passed away testate on 8.3.1985 (“the deceased” and “the estate”). The grant of probate for the estate was issued on 26.10.1993. The beneficiaries of the estate are the two plaintiffs and the 2" defendant. The executors of the estate are Swaminathan Chettiar, since deceased, the defendants and the 2°4 plaintiff. The plaintiffs and the 2™ defendant are Indian nationals residing in India while the 1° defendant, a Malaysian citizen, is the only executor of the estate within jurisdiction and who has direct control over assets of the estate. 2 [4] The 1* defendant is also the beneficiary of the estate of Swaminathan Chettiar who was the deceased’s brother. Both Swaminathan Chettiar and the deceased were co-proprietors of various properties wherein the latter held 1/8 shares of such properties. 2014 Consent Order [5] On 4.1.2012, the plaintiffs commenced Penang High Court Civil Suit 22NCvC-2-01/2012 against the defendants. It was alleged by the plaintiffs therein that the 1%' defendant had breached his fiduciary duty by failing to distribute the estate according to the terms of the will, account for and/or to keep accounts for the income and expenses of the said estate, misappropriated monies of the estate and failed to distribute monies from income and proceeds received by the estate to the beneficiaries since the passing of the deceased. The principal reliefs sought in that civil suit were: (i) an account for all monies received and expensed by the 1* defendant; (ii) payment of monies due to the plaintiffs from the estate; (ili) the removal of the 1° defendant as executor; and (iv) damages. 3 [6] On 18.9.2014 the parties entered into a consent judgment with the following terms (‘the 2014 Consent Judgment’): (a) (b) The 1° defendant is to render the accounts of the estate of the deceased for the years 2006 to 2014 and the accounts are to be kept at No. 140, Penang Street, Penang whereby all the beneficiaries are given access to the said accounts. The immediate sale of certain identified properties and the manner the proceeds of sale are to be distributed; The vesting of certain identified properties in favour of the 1% defendant and/or the 2°¢ defendant upon payment of the value of the plaintiffs’ portion failing which the manner in which the said properties are to be vested in the parties; The sale of certain identified properties within 2 years failing which how the said properties are to be vested in the parties; (e) All the unsold properties registered in the name of the deceased or jointly with the estate of Swaminathan Chettiar or any other person shall belong to the parties in the following proportions: 1% plaintiff 1/6 share; and plaintiff 1/6 share; 1% defendant 1/2 share; and and defendant 1/6 share; The present civil suit [7] The plaintiffs in the present civil suit pleaded in paragraphs 143 to 21 that the 1° defendant breached the 2014 Consent Judgment. The first breach was that: the 1% defendant while rendering the financial statements, notations on hand-written ledgers and tax computations did not give or allow access to documents such as vouchers, agreements, receipts and bank statements to verify the accounts that were rendered; and (ii) the 1% defendant has failed to take action to vest the identified properties for sale that remained unsold in the names of the beneficiaries according to their respective proportions. [8] The second breach was discovered from the information gleaned upon examining the accounts that were rendered and from the sale and/or transfer of the identified properties. The following irregularities were alleged in the management and/or administration of the estate by the 1% defendant: (a) the failure to distribute and/or deposit in the bank accounts of the estate the 1/8" share from the proceeds of sale of various properties jointly owned by the estate amounting to RM4,051,212.06; (b) the failure to deposit the sum of RM3,669,272.20 being the sum of forfeited from purchasers who failed to complete the sale and purchase of certain properties into the bank accounts of the estate; (c) the failure to account for the sum of RM500,075.00 belonging to the estate and having unexplained financial dealings with an entity named “KOSA”, (d) depositing monies of the estate into the personal bank accounts belonging to the 1° defendant's, namely rental received from Kolam {kan properties, compensation of the Mata Kuching properties and earning interest on estate monies before distributing the principal sum to the beneficiaries [9] The aftermath of the 2014 Consent Order saw the 4st defendant again refusing to disclose to date the true and actual position of the estate’s accounts from the year 2015. On 2.11.2015 the plaintiffs came to Penang to inspect ledgers, journals, accounts, bank statements, receipts and invoices but the 1%t defendant refused to comply with the request. Thereafter, the plaintiffs had come on various times, the last visit being on 30.6.2019, but on each occasion only the same already inspected ledgers were made available. The accounts and supporting documents from 2015 were not made available or disclosed. The plaintiffs then from time to time, from 2.11.2015 until 20.3.2019, through their solicitors requested for such inspection but the requests were ignored by the 4st defendant. The 1° defendant has also refused to meet the plaintiffs, thereby effectively preventing the 2"? plaintiff from participating in the administration of the estate. [10] In the circumstances, the plaintiff claimed that the qs defendant has breached his fiduciary duties as an executor and also the terms of the 2014 Consent Judgment. The 2™ defendant was sued for failing to partake in the administration of the estate or make inquires as to the 1° defendant's dealings. As a result of the above the plaintiffs are seeking the following reliefs: (a) the 1%*defendant within 7 days from the date of the order being made: (i) furnish a proper and true account for the estate together with all ledgers, journals, accounts, bank statements, receipts, invoices and related documents from 2006 until the present day; (ii) to disclose all his personal bank accounts numbers and furnish all bank statements of the said bank accounts from 2006 until the present day; (ii) to account for all profit, interest and benefits accrued personally from the estate, (iv) to pay and return all monies owing to the estate which is not properly accounted for. (b) the defendants be removed as executors of the estate; (c) general damages; and (d) interests and costs. [11] On 25.8.2020, during case management, | fixed the trial of the civil suit to commence on 26.7.2021 to 29.7.2021 and worked backwards in respect of pre-trial directions. On 30.12.2020, the plaintiff filed the present application to strike out the whole civil suit or alternatively part thereof, namely, the prayers for the 9 period beginning from 2006 until 2014 or paragraphs 13 until 22 of the statement of claim be struck out on the following grounds: (a) non-compliance with Order 72 of the Rules of Court 2012; and/or (b) res judicata or the merger of the cause of action into the 2014 Consent Order. [12] | am satisfied that there was no inordinate delay in filing the application and refused the plaintiffs preliminary objection to dismiss the same in limine. The principles of striking out under Order 18 rule 19(1)(d) [13] Hereinafter all rules referred to refer to the Rules of Court 2012. [14] It is trite, that an application to strike out under any of the four sub-paragraphs of O 18 r 19(1) will only be allowed where it is plain and obvious that the plaintiffs claim is obviously unsustainable (Bandar Builder Sdn Bhd v United Malayan 10 Banking Corporation [1993] 4 CLJ 7). Specifically, in respect of sub-paragraph (d) of O 18 r 19(1) the wrong or improper use of the litigation process is an abuse of the process of the court. The categories of wrong or improper conduct are not closed and depend on the relevant circumstances of each case. For this purpose considerations of public policy and interests of justice may be very material (Konsortium Lebuhraya Utara-Timur (KL) Sdn Bhd v Liew Choong Kin [2018] 6 CLJ 217; Tan Wei Hong & Ors v Malaysia Airlines System Berhad & Ors [2017] 4 MLRA 684) [15]in certain situations the rules expressly provide for mandatory condition precedents to be complied with before the doing of some act. The failure to comply with such condition precedents may amount to an abuse of the process of the court. The filing of a writ which is a probate action without first complying with the prerequisites of Order 72 is an example of abuse of the process of the court and such writ is liable to be struck out under Order 18 rule 19(1)(d) (see Kok Chee Yoong & Anor v Wong Lee Yuen [2018] MLRAU 265 and Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605). 41 [16] It is also clear that the court has discretion to strike out the pleadings or order the pleadings to be amended from the opening words of Order 18 rule 19(1). The principle is neatly encapsulated by the Court of Appeal in Shahidan Shafie v Atlan Holding Bhd & Other Appeals [2005] 3 CLJ 793 as follows: You will see from the opening words of the rule that the court has the power, on an application to strike out a pleading or order it to be amended. This is an important choice that the court has. It does not therefore mean that in every case where an application is made by a party to an action to strike out his opponent's pleading it is obligatory for the court to make an order striking out the pleading in question. The court has a discretion to exercise on the facts of each case whether the particular pleading ought to be struck out as disclosing no cause of action or ordered to be amended. It is only when the court is satisfied that no amendment could possibly save it ought a pleading to be struck out. 12 Analysis and decision Failure to comply with Order 72 [17] The defendants’ first point is that, in view of the prayer for the removal of an executor in the statement of claim, the action before the court is a “probate action” and therefore the writ can only be filed after the prerequisites of Order 72 has been complied with. The plaintiffs failed to comply with Order 72 and therefore the entire writ and statement of claim is an abuse of the process of the court and ought to be struck out. [18] Section 34 of the Probate and Administration Act 1959 (“the Act”) is the empowering provision that allows any probate or letters of administration to be revoked or amended for sufficient cause. A “probate action” is defined in section 2 of the Probate and Administration Act 1959 to include “an application to alter or revoke any grant of representation”. In the same section “representation” is defined to mean “the probate of a will and administration’. The High Court is conferred specific civil jurisdiction to grant probates of wills and testaments and letters of administration of the estates of deceased persons leaving 13 property within the territorial jurisdiction of the Court and to alter or revoke such grants under section 24 of the Courts of Judicature Act 1964. While section 16 of the Courts of Judicature Act 1964 provides for the making of rules of court concerning this specific jurisdiction. [19] In this regard the Rules of Court 2012 made under section 16 of the Courts of Judicature Act 1964 provides vide Order 72 rule 1 as follows: (1) This Order applies to probate causes and matters and the other provisions of these Rules apply to those causes and matters subject to the provisions of this Order. (2) In these Rules, “probate action’ means an action for the grant of probate of the will, or letters of administration of the estate, of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious. 14 [20] The application to remove the defendants is in essence an application to revoke the grant of probate and therefore falling within the meaning of a “probate action” under Order 72 rule 1(2). A “probate action” is required to comply with the following mandatory prerequisites set out in imperative terms that constitutes Order 72 rule 2: (1) A probate action shall be begun by writ, and the writ shall be issued out of the Registry. (2) Before a writ beginning a probate action is issued, it must be endorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate of the deceased to which the action relates. (3) A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 7 has been issued or the probate or letters of 15 administration, as the case may be, has or have been lodged in the Registry. [21] The plaintiffs have clearly not complied with these mandatory prerequisites. The issuance of a citation under rule 7 is mandatory condition to be satisfied before a writ for the revocation of the grant of probate can be issue. A writ and statement of claim issued without the citation being settled is incompetent. (see Kok Chee Yoong & Anor v Wong Lee Yuen [2018] MLRAU 265; Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605; Saadon Abdullah v Jamilah Omar [2011] 3 MLRH 913 and Yap Teck Ngian v Yap Hong Lang & Ors [2007] 1 MLRA 869). [22] For completeness, | had considered the submission by the plaintiffs that by virtue of Order 1A and Order 2 the non- compliance with Order 72 is to be treated as an irregularity which does not nullify the writ and statement of claim. It was argued that the defendants failed to discharge the onus of demonstrating that the irregularity had caused prejudice to the plaintiffs. The following passage in Redang Paradise Vacation Sdn Bhd v 16 Yap Chuan Bin [2017] 10 CLJ 296 by the Court of Appeal was cited in support of the argument: In the light of O. 1A and O. 2 of RC 2012, it is not an option anymore for the courts to strike out a matter for non-compliance of the rules without giving an opportunity to the litigant to regularise the proceedings or to condone the irregularity by the fiat of the court. It is only in extremely rare cases where the non- compliance cannot be condoned at all, the court will be obliged to strike out the matter. Those are the cases where the respondent can demonstrate prejudice as well as can establish that the breach cannot be compensated by costs. [23] It is clear that in the above passage the crucial point is that the party who failed to comply with the rules must be given an opportunity to regularise the the proceedings or that the irregularity is of such a nature that it can be condoned by the fiat of the court. The Court recognised that in certain cases the non- compliance cannot be condoned and the defaulting party is given an opportunity to regularise the proceedings. However, if in 17 regularising the proceeding the opposing party can demonstrate prejudice or show that the breach cannot be compensated by costs the court will then be obliged to strike out the matter. [24] But, there are rare instances where the irregularity cannot be regularised. The plaintiffs in the present case did not even ask for an opportunity to regularise the proceedings but merely said that the non-compliance did not prejudice the defendants. This is not sufficient. The plaintiffs must be able to regularise the defect. The reason for not asking to regularise the defect is plain and obvious in the present case. The non-compliance was one that could not be regularised as the writ is pre-mature for want to comply with the prerequisites of Order 72. [25] In my view, the failure to comply with the mandatory procedure in Order 72 is not a mere technical non-compliance for the failure is clearly one that goes into the jurisdiction of the court to try the writ. In this regard, decision of the Federal Court in Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 is instructive as there it was established that Order 1A cannot be used to supercede a mandatory 18 requirement of the rules for otherwise parties would be encouraged to ignore the rules. Order 72 is one such rule where the prerequisites stated therein is a condition precedent before filing a writ to remove an executor who has been granted probate. [26] Likewise, Order 2 cannot be a universal answer for every transgression of the rules. Some transgressions are curable while others are not. There are rare situations in the rules where the failure to comply with mandatory pre-conditions cannot be cured by invoking Order 2. Order 53 rule 3(1) is one example. The rule provides that an application for judicial review shall not be made unless leave has been granted in accordance with the the said rule. Order 72 rule 2(3) states in similar fashion that a writ beginning a probate action for the revocation of the grant of probate shall not be issued unless a citation under rule 7 has been issued or the grant of probate has been lodged in the Registry. The authorities cited above attest to this fact and establish that the non-compliance with Order 72 rule 2 is fatal. Thus, in the present case so long as the prayer to revoke the appointment of the defendants as executors is claimed the writ and statement of claim is defective and is liable to be struck out in limine. 19 [27] The next question is whether an amendment could possibly save the writ and statement of claim. In considering this question it is noted that the plaintiffs had submitted that only prayer (g) which seeks the removal of the 1% defendant as an executor in the statement of claim should be struck out in the event this Court holds that the prayer comes within the meaning of “probate action’. in my view, the proper course would be to direct the plaintiffs under Order 18 rule 19(1) to amend the statement of claim by deleting the prayer (g). This would render the writ and statement of claim valid for the other causes of action and reliefs sought therein. The plea of res judicata [28] The defendants claimed that the present suit or at least part of the suit thereof must be struck out based on the plea of res judicata. \t is contended that the causes of action and issues in the present suit are the same as or ought to have been brought in the earlier civil suit and which causes of action and issues have merged with the 2014 Consent Judgment. The defendants relied on Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (“Asia Commercial Finance’) and 20 submitted that a cause of action which has been adjudicated cannot be litigated once more and this includes every issue which parties exercising reasonable diligence might have brought in the earlier civil suit. [29] The question to be decided now is whether the plea of res judicata has been established. The law on res judicata is trite and instructively stated in Asia Commercial Finance and reaffirmed in Kerajaan Malaysia v Mat Shuhaimi Shafie [2018] 3 CLJ 1 where the Federal Court reminded that the underlying rationales of the doctrine of res judicata and abuse of process are "founded on the consideration of public policy that it is in the public interest that there should be finality in litigation and decisions made by courts of competent jurisdiction, and that no one should be vexed twice for the same kind of litigation”. [30] In Asia Commercial Finance it is stated that res judicata creates an estoppel per rem judicafum and there are two types of such estoppel: 'cause of action estoppel’ and ‘issue estoppel’. The position can be summarised as follows: 21 (i) (ii) (iii) The cause of action estoppel arises where the rights or liabilities involving a particular right to take a particular action in court for a particular remedy are determined in a final judgment. The cause of action cannot be relitigated between the same parties in a subsequent action. The cause of action estoppel extends to all other causes of action, based on the same facts or issues, which should have been litigated or asserted in the earlier action resulting in the final judgment. The issue estoppel means that neither the same parties nor their privies in a subsequent action will be allowed to challenge the correctness of the decision of a previous final judgment in which they, or their privies, were parties and neither will such parties be allowed to adduce evidence or advance any argument to contradict such decision. The issue estoppel! also extends to an issue that is raised in a subsequent proceeding which involves a 22 different cause of action to which the same issue is relevant and to a situation where an issue raised in a subsequent proceeding is an issue which might have been and which was not brought forward in the earlier action. [31] In the context of this case in view of the fact that we have a consent judgment and not a judgment adjudicated on merits the nature of such judgment must be appreciated. A consent judgment is only recorded by the court when the respective litigants have by way of an agreement resolved their legal suit and sometimes including other disputes that they may have in the form of a global settlement. A consent judgment has been explained by the Federal Court in Tan Geok Lan v La Kuan [2004] 2 CLJ 301 as follows: A consent judgment or order is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of the court, and its force and effect derives from the contract between the parties leading to, or evidenced by, or incorporated in, the consent judgment or order. 23 and later further clarified in Kamil Azman bin Abdul Razak & Ors v Amanah Raya Bhd & Ors [2019] 4 MLJ 726 in the following as follows: Such an order remains valid, effective and binding on all the parties involved ... until and unless the consent order is set aside, the consent order operates as an estoppel ... . [32] In Mayban Allied Bhd (formally known as Phileo Allied Bank (M) Bhd) v Kenneth Godfrey Gomez & Anor [2011] 5 MLJ 219, Ramly Ali JCA observed that: [23] It is trite that a consent order could give rise to a plea of res judicata. There are a number of authorities on this point. Among them are: Palmer & Anor v. Durnford Ford (a firm) & Anor[1992] 2 All ER 422: Cohen v. Fonesco [1926] 1 KB 119, Re South American & Mexican Co. ex p. Bank of England [1895] 4 Ch 37; and Malaysian National Insurance Sdn Bhd v. Lim Tiok [1997] 2 CLJ 351. 24 [33] The 2014 Consent Judgment is the evidence of the determination of the dispute between the parties arising from the earlier civil suit and is therefore binding on the parties and would give rise to a plea of res judicata if a civil suit is subsequently filed where the controversy pleaded as the foundation of the claim was also the controversy or ‘open to controversy’ in the earlier civil suit. [34] Having set out the relevant principles of the doctrine and the nature of a consent judgment the next step is to consider the whether the plea of res judicata is made out. To determine this question the causes of action and issues that will arise in the present action and the causes of action and issues in the earlier civil suit that culminated in the 2014 Consent Judgment (see Wen Rixing & Anor v Oon Hoon Nam [2021] 1 LNS 310 and The Pacific Bank Berhad v Chan Peng Leong [1998] 2 MLJ 613). [35] In the earlier civil suit the cause of action and/or issues raised was that the 1% defendant had breached his fiduciary duty by failing to distribute the estate according to the terms in the will 25 of the deceased, account for and/or to keep accounts for the income and expenses of the said estate, misappropriated monies of the estate and failed to distribute monies from income and proceeds received by the estate to the beneficiaries since the passing of the deceased until the filing of th civil suit in 2012. Ultimately, parties agreed to the rendering of accounts of the estate for the years 2006 to 2014 by the 1* defendant who is also required to give the plaintiffs full access to the said accounts. The agreement also concerned the sale of and vesting of certain identified properties and matters related thereto and apportionment of shares if the properties are unsold. [36] The present civil suit on one hand pleads of the breaches of the 2014 Consent Judgment by the 1* defendant, missing monies and irregularities in the accounts for the years 2006 to 2014. In my view the remedy in relation to such matters is to enforce the 2014 Consent Judgment and not bring a fresh action in respect of the same. Such matters would clearly caught by the plea of res judicata. [37] On the other hand the other paragraphs in the statement of claim apart from referring to relating to the 2014 Consent 26 Judgment make new complaints on the failure to provide accounts for the years 2015 to the present date which is not the subject matter of the earlier civil suit and the 2014 Consent Judgment. The present civil suit concern also different matters and a different time frame which includes new found irregularities in the management and/or administration of the estate and misappropriation of estate monies by the 1% defendant. Therefore, the plea of res judicata would not bite for matters raised for the years 2015 until the present date. [38] Since the cause of action of breach of fiduciary duty and the issues of mismanagement for the years 2015 until to date are pleaded and intertwined in the same paragraphs in respect of the accounts, issues of mismanagement and breach of fiduciary duty for the years 2006 until 2014 the paragraphs are therefore impossible to to struck out as a whole. In the circumstances it is not a plain and obvious case for striking these paragraphs. Conclusion [39] For the above reasons the application is dismissed with the following orders: 27 (i) the plaintiffs are to amend the statement of claim by deleting prayer (g) on or before 23.12.2021; and (ii) | defendants to pay the the plaintiffs costs of RM4,000.00 subject to allocatur. “"Amarjeet SinghSerjit Singh - Judicial Commissioner High Court of Penang Dated : 16° December 2021 Counsel for the Plaintiff: Kanarasan G., Malathi Natarajan [GHANDI KLANG] Counsel for the Defendant: Kanesan Muthusami, Sharmilla a/p Kanesan [M. KANESAN & ASSOC. (PENANG)] Cases reffered to: 1. Bandar Builder Sdn Bhd v United Malayan Banking Corporation [1993] 4 CLJ 7 2. Konsortium Lebuhraya Utara-Timur (KL) Sdn Bhd v Liew Choong Kin [2018] 6 CLJ 217 3. Tan Wei Hong & Ors v Malaysia Airlines System Berhad & Ors [2017] 4 MLRA 684) 28 4. Kok Chee Yoong & Anor v Wong Lee Yuen [2018] MLRAU 265 5. Debaroti Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605) 6. Shahidan Shafie v Atlan Holding Bhd & Other Appeals [2005] 3 CLJ 793 7. Saadon Abdullah v Jamilah Omar [2011] 3 MLRH 913 8. Yap Teck Ngian v Yap Hong Lang & Ors [2007] 1 MLRA 869). 9. Redang Paradise Vacation Sdn Bhd v Yap Chuan Bin [2017] 10 CLJ 296 10. Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain Hamzah Mohd Noor & Another Appeal [2009] 4 CLJ 329 11. Asia Commercial Finance (M) Berhad v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 42. Kerajaan Malaysia v Mat Shuhaimi Shafie [2018] 3 CLJ 4 13. Tan Geok Lan v La Kuan [2004] 2 CLJ 301 14. Kamil Azman bin Abdul Razak & Ors v Amanah Raya Bhd & Ors [2019] 4 MLJ 726 15. Mayban Allied Bhd (formally known as Phileo Allied Bank (M) Bhd) v Kenneth Godfrey Gomez & Anor [2011] 5 MLJ 219, Ramly Ali JCA 16. Wen Rixing & Anor v Oon Hoon Nam [2021] 1 LNS 310 17. The Pacific Bank Berhad v Chan Peng Leong [1998] 2 MLJ 613) 29