1. ) MALACHEMENAIDU A/L APPLANAIDU 2. ) NIPHAPORN BUTSABIN 1. ) DATIN SERI HAJJAH SARAH SAYEED MAJANGAH 2. ) DATUK SERI HAJI GHULAM MOHAMMED SAYEED 3. ) PERIASAMY A/L MARI 4. ) CECILA JANE JOSEPH SEBASTIAN 5. ) KAMALJIT KAUR SANDHU

= aon > ONS faN> IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR SUIT NO. 22NCvC-662-12/2015 Between MALACHEMENAIDU A/L APPLANAIDU NIPHAPORN BUTSABIN ... Plaintiffs And DATIN SERI HAJJAH SARAH SAYEED MAJANGAH DATUK SERI HAJ] GHULAM MOHAMMED SAYEED PERIASAMY A/L MARI CECILIA JANE JOSEPH SEBASTIAN KAMALJIT KAUR SANDHU ... Defendants (Consolidated with Suit No. 22NCvC-665-12/2015 by an Order of the High Court dated 22.3.2016) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR SUIT NO. 22NCvC-665-12/2015 Between LIU, SHU-LAN, CONNIE NG LEE ENG, THERESA SHIRLEY CELESTE A/P CHARLES CHRISTOPHER MUHAMMAD SHABBIR ... Plaintiffs And DATUK SERI HAJ] GHULAM MOHAMMED SAYEED PERIASAMY A/L MARI CECILIA JANE JOSEPH SEBASTIAN KAMALJIT KAUR SANDHU ... Defendants (Consolidated with Suit No. 22NCvC-55-02/2015 by an Order of the Court of Appeal dated 7.4.2016) IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR SUIT NO. 22NCvC-55-02/2015 Between 1. LIU, SHU-LAN, CONNIE 2. NGLEE ENG, THERESA 3. SHIRLEY CELESTE A/P CHARLES CHRISTOPHER 4. MUHAMMAD SHABBIR ... Plaintiffs And HAJJAH SARAH SAYEED MAJANGAH ... Defendant (trading as Sayfol International School) GROUNDS OF DECISION Introduction 1. The 24 defendant (“Ghulam”) in Suit No. 22NCvC-662-12/2015 (“Suit 662”) filed an application vide Enclosure 116 (“Enc 116”) to strike out the plaintiffs’ Writ and Statement of Claim in Suit 662. Enc 116 is made under Order 18 rule 19(1)(b) and/or (d) of the Rules of Court 2012 (“ROC’). 2. Vide Enc 116, Ghulam also applied to strike out the plaintiffs’ Writ and Statement of Claim in Suit No. 22NCvC-665-12/2015 (“Suit 665”). Ghulam is the 1% defendant in Suit 665. 3. In turn, the plaintiffs in Suit 662 filed an application vide Enclosure 126 (“Enc 126”) for leave to amend their Statement of Claim. Enc 126 is made under Order 20 rule 5 of the ROC. 4. The plaintiffs in Suit 665 likewise filed an application vide Enclosure 128 (“Enc 128”) for leave to amend their Statement of Claim. Enc 128 is made under Order 20 rule 5 of the ROC. 5. The plaintiffs in Suit 662 and Suit 665 are collectively referred to as the “Plaintiffs”. The Statements of Claim in Suit 662 and Suit 665 are collectively referred to as the “SOCs’. 6. | heard all 3 enclosures (Enc 116, Enc 126 and Enc 128) together. | allowed both Enc 126 and Enc 128 for the SOCs to be amended as proposed. | dismissed Enc 116 and did not allow the striking out by Ghulam. 7. Ghulam filed an appeal against my decision in Enc 116 (dismissal of the striking out application). He did not file any appeal in respect of my decisions in Enc 126 and Enc 128 (amendment of the SOCs). These are the grounds of my decision in relation to Enc 116. Background 8. The Plaintiffs’ claim arises from an alleged investment scheme in an educational institution known as Sayfol International School located at No. 261 Jalan Ampang, Kuala Lumpur (“School”). The Plaintiffs aver that Ghulam and his wife, Hajjah Sarah (“Wife”), have deceived them of their alleged investments. 9. Wife was the 1° defendant in Suit 662. She is also the sole defendant in Suit No. 22NCvC-55-02/2015 (“Suit 55”) The Plaintiffs seek recovery of their alleged investments. 10. In the SOCs, the Plaintiffs pleaded the following: (a) (b) (c) (d) (e) (f) Wife was, at all material times, registered as the sole-proprietor of the School; Ghulam was, at all material times, the founder and undisclosed co-owner of the School. And the principal decision maker regarding the financial and operational matters relating to the School: The Plaintiffs were induced by Ghulam and Wife to advance monies towards, amongst others, the development and expansion of the School and its proposed expansion plans; In return, the Plaintiffs would be given a stake in the School or would be guaranteed a 5% monthly return on their investments; The monies advanced would be repaid by Ghulam and Wife upon demand made by the Plaintiffs; Ghulam and Wife have failed to repay the monies advanced by the Plaintiffs upon demand being so made; The 3% defendant in Suit 662 (“Periasamy”) was, at all material times, employed as the Bursar and the Chief Financial Officer of the School. He was also the 2™ defendant in Suit 665; (nh) The 4 defendant in Suit 662 (“Cecilia”) was, at all material times, employed as the Registration Officer and later Registrar of the School. She is also the 3 defendant in Suit 665; (i) The 5" defendant in Suit 662 (“Kamaljit’) was, at all material times, employed as a Secretary in the School. She was also the 4" defendant in Suit 665; (j) These other 3 defendants facilitated and received the payments of the monies advanced by the Plaintiffs: (k) At all material times, the Plaintiffs did not know that Ghulam and Wife had made such separate similar arrangements with each of them. The 3 suits 11. Suit 662 was filed on 9.12.2015 by the two plaintiffs named therein against Ghulam, Wife and the other 3 defendants. The plaintiffs prayed for the following: (a) The appointment of a Receiver and Manager to manage all the educational institutions under the Sayfol Group; (b) The corporatization of the School and upon successful corporatization, the issuance of shares in the School in favour of the plaintiffs in proportion to their respective investments; (c) Alternatively, a declaration that Ghulam and Wife are indebted to, and do return the monies advanced by, the plaintiffs. 12. Suit 665 was filed on 10.12.2015 by the four plaintiffs named therein against Ghulam and the other 3 defendants. The plaintiffs prayed for a declaration that Ghulam is indebted to, and do return the monies advanced by, the plaintiffs. 13. Suit 55 was filed on 4.2.2015 by the four plaintiffs named therein against Wife. The plaintiffs in Suit 55 are the same plaintiffs in Suit 665. The plaintiffs prayed for a declaration that Wife is indebted to, and do return the monies advanced by, the plaintiffs. Consolidation of the 3 suits 14. Suit 665 was consolidated with Suit 662 by an order of the High Court dated 22.3.2016. And subsequently consolidated with Suit 55 by an Order of the Court of Appeal dated 7.4.2016. 15. The 3 suits (i.e. Suit 662, Suit 665 and Suit 55) arose out of the same set of circumstances. Initially, separate suits were filed for reason that it involved different plaintiffs and defendants, as well as the reliefs prayed therein were not identical. Subsequently, these 3 suits were consolidated as it became apparent that the conduct of the defendants were almost identical. 16. The order for consolidation dated 22.3.2016 by the High Court had the effect of transferring Suit 665 to Suit 662. And ordered that both suits continue as one action and be heard together. 6 17. The order for consolidation dated 7.4.2016 by the Court of Appeal consolidated Suit 55 with Suit 662. And ordered that both suits continue as one action, with Suit 662 being the principal suit. 18. Both consolidation orders had the effect of treating all 3 suits (i.e. Suit 662, Suit 665 and Suit 55) as one action. There are now 6 different plaintiffs claiming against the same defendants based on almost identical facts. The other defendants’ striking out applications 19. The following defendants had previously applied to strike out the plaintiffs’ claim against them (“Other Defendants’ Striking-Out Applications’): (a) In Suit 662:- (i) Wife (1% defendant), (ii) Periasamy (3" defendant) and (iii) Kamaljit (5"" defendant); (b) In Suit 665:- (i) Periasamy (2"¢ defendant) and (ii) Kamaljit (4" defendant). 20. On 22.11.2016, the High Court allowed the Other Defendants’ Striking-Out Applications. The plaintiffs’ appeal against the said High Court order was dismissed by the Court of Appeal on 21.2.2018. Leave to appeal to the Federal Court was dismissed on 17.10.2018. 21. In Suit 55, Wife had filed a similar application to strike out the plaintiffs’ claim against her. This application however was dismissed by 7 the High Court on 25.5.2015. There was no appeal against this High Court order. The Sessions Court suit 22. On 9.12.2013, Cecilia filed a suit against Wife via Sessions Court Suit No. A52NCvC-131-12/2013 (“Sessions Court Suit’). Cecilia pleaded that she had to return RM116,000 to certain investors pursuant to the alleged investment scheme, and sought to claim the RM116,000 from Wife. Cecilia also pleaded that she had been unlawfully terminated, and that Wife had breached her contract of employment. 23. In the defence and counterclaim, Wife denied the existence of the alleged investment scheme. Wife claimed that Cecilia, together with Periasamy, had systematically committed a fraudulent conduct by misappropriating substantial sums of monies from the School’s fees, which had been deposited into Cecilia’s personal account. 24. On 2.10.2014, after a full trial, the Sessions Court dismissed Cecilia’s claim and allowed Wife’s counterclaim. The said Sessions Court order was upheld by the High Court on 19.6.2015. Cecilia did not appeal further. Decision 25. |am satisfied that this is not a plain and obvious case for striking out. (See Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 3 MLJ 36; [1993] 2 AMR 1969). | therefore dismissed Enc 116 and did not allow the striking out by Ghulam. 26. In my opinion, the SOCs are not obviously unsustainable. On the contrary, | find that the SOCs disclose a reasonable cause of action. My reasons are as follows. Ghulam’s submission 27. Ghulam canvassed the following arguments: (a) The Plaintiffs have no locus standi to institute Suit 662 and Suit 665 (this argument is no longer relevant). (ob) The Plaintiffs’ claim is barred by the operation of res judicata and/or issue estoppel by reason of: (i) the Other Defendants’ Striking-Out Applications; (ii) the Sessions Court Suit. Locus standi 28. Ghulam argued that the Plaintiffs have no locus standi to institute Suit 662 and Suit 665. The basis for this argument stemmed from the previous bankruptcy status of Ghulam (there was some uncertainty regarding when Ghulam became a bankrupt and when he was discharged from bankruptcy). And no leave of court was obtained at the time Suit 662 and Suit 665 were instituted. 29. Since then, the Plaintiffs have filed an application to obtain retrospective leave pursuant to section 8(1) of the Insolvency Act 1967. 9 The bankruptcy court heard the application on 28.9.2020 and held that no leave of court is required. By reason that the Plaintiffs’ claim in Suit 662 and Suit 665 are not debts provable in bankruptcy, as defined in sections 2 and 40(3) of the Insolvency Act 1967. 30. As such, by virtue of the said decision of the bankruptcy court, it is incontrovertible that the Plaintiffs have the requisite locus standi to institute Suit 662 and Suit 665 against Ghulam, regardless of his then bankruptcy status. Res judicata - Other Defendants’ Striking-Out Applications 31. Ghulam contends that the Plaintiffs’ claim against him in Suit 662 and Suit 665 is barred by res judicata owing to the Other Defendants’ Striking- Out Applications. | disagree. 32. | am of the opinion that the Other Defendants’ Striking-Out Applications does not bar the Plaintiffs’ claim against Ghulam. It seems unfair that the Plaintiffs should be estopped from continuing with Suit 662 and Suit 665, solely because some of the other defendants in Suit 662 and Suit 665 were successful in their striking out applications. 33. Firstly, notwithstanding that the Other Defendants Striking-out Applications were successful, however, a similar striking out application in Suit 55 was unsuccessful. As such, Ghulam’s reliance on the Other Defendant's Striking-Out Applications is misplaced as the learned High Court Judge in Suit 55 held that the Plaintiffs’ claim is not plain and obvious to be struck out. 10 34. Secondly, the Other Defendant’s Striking-Out Applications were allowed by the learned High Court Judge in Suit 662 and Suit 665 on the ground that there were insufficient particulars to constitute a cause of action against the said defendants. 35. That ground is not applicable in the instant case. Here, Ghulam’s argument for striking out the Plaintiffs’ claim is not based on lack of particulars. It is premised on res judicata. 36. In any event, the court can exercise its discretionary powers to direct an amendment of the statement of claim order to rectify the apparent defect due to insufficient particulars, instead of striking out. 37. In fact, it is on this premise that the Plaintiffs have made an application to amend the SOCs vide Enc 126 and Enc 128. And | have allowed Enc 126 and Enc 128 for the SOCs to be so amended. The said amendments go towards establishing the particulars of the Plaintiffs’ claim, and how the return of the monies advanced by the Plaintiffs were repaid and/or subsequently dishonoured by Ghulam. 38. | am guided by the Court of Appeal case of Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] 4 MLJ 520 at 537-538 which said: [52] It must be borne in mind that pleadings must be hopeless, baseless or without foundation in law or in equity or an abuse of the process of the court before they can be struck out under O 18 r 19 of the RHC. According to the case of Harris Mohd Salleh v Ismail bin Majin, Returning Officer & Ors and another application [2000] 3 MLJ 434, an application for striking out based on the ground of insufficient particulars cannot be a good reason for striking out. It is trite that where the pleadings are defective and the opposing party 44 seeks to strike out the pleadings, the court must be wary and ought not to act summarily if an amendment can correct the defect.” 39. Also, the Court of Appeal case of Shahidan Shafie v Atlan Holdings Bhd & Anor & Other Appeals [2005] 3 CLJ 793 at 803, 806 which said: “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. It seems to me that the authorities that | have discussed in brief thus far show that a court ought not to strike out an originating process or pleading unless it cannot be saved by any amendment whatsoever based on the available facts. That, of course, is another way of saying that it is only in a plain and obvious case that a pleading will be struck out as not disclosing any cause of action. Because, a pleading that may be saved by amendment is not a plain and obvious case that should be struck out.” 40. Thirdly, the Other Defendants’ Striking-Out Application in Suit 662 was allowed on a technical ground. Namely that the plaintiffs therein did not file any affidavit in reply to object to the said striking out application. 41. That ground does not apply to the present facts since the Plaintiffs have filed affidavits opposing Enc 116. As such, the result of the Other Defendants’ Striking-Out Applications should not preclude the Plaintiffs’ claim against the remaining defendants in Suit 662 and Suit 665. 42. Furthermore, the Plaintiffs’ claim against the remaining defendants in Suit 662 and Suit 665 can stand independently with or without the other 12 defendants who were struck out. By reason that the Plaintiffs’ claim against the remaining defendants is separate and distinct from the other defendants who were struck out. 43. Finally, | am mindful of the consolidation orders which consolidated Suit 662, Suit 665 and Suit 55. The effect of the consolidation orders is that all 3 suits will proceed as one action. | can assume that there existed some common question of law or fact or some other reason rendering it desirable that all 3 suits should be disposed of at the same time. 44. | refer to the Federal Court case of TM Feroze Khan & Ors v Meera Hussain bin TM Mohamed Mydin [2000] 1 MLJ 321 at 334 which said: “It is reasonable to assume that by ordering consolidation, the learned trial judge must have considered it proper for the plaintifs’ writ action to proceed and that there existed some common question of law or fact or some other reason rendering it desirable that the whole should be disposed of at the same time.” 45. Wife’s striking out application in Suit 55 was dismissed. Thus, Suit 55 will proceed to trial. | think it would be in the interest of justice to allow Suit 662 and Suit 665 to also proceed and be ventilated in trial together with Suit 55, giving effect to the consolidation orders. 46. Moreover, the plaintiffs in Suit 55 and Suit 665 are the same persons. They are claiming for the same amounts against different defendants, i.e. Wife in Suit 55 and Ghulam in Suit 665. Res judicata — Sessions Court Suit 13 47. Ghulam further contends that the Plaintiffs’ claim against him in Suit 662 and Suit 665 is barred by res judicata owing to the Sessions Court Suit. Again | disagree. My opinion is that the Sessions Court Suit does not bar the Plaintiffs’ claim against Ghulam. 48. It is pertinent to note from the outset that the parties and the cause of action in the consolidated suits (i.e. Suit 662, Suit 665 and Suit 55) are different altogether with the Sessions Court Suit. 49. The plaintiff in the Sessions Court Suit was Cecilia. She is the 4" defendant in Suit 662 and the 3% defendant in Suit 665. 50. The defendant in the Sessions Court Suit was Wife. She is the sole defendant in Suit 55. 51. Thus, none of the Plaintiffs nor Ghulam himself were a party to the Sessions Court Suit. It bears reiterating that the Plaintiffs were not the litigants in the Sessions Court Suit. 52. Further, the cause of action in the Sessions Court Suit is different from Suit 662 and Suit 665. 53. In the Sessions Court Suit, Cecilia was claiming from Wife a return of monies (i.e. RM116,000) paid by Cecilia to a third party investor. Cecilia also claimed damages for breach of her employment contract. 54. In the Sessions Court Suit, Cecilia prayed for the following reliefs: (a) Damages for breach of the contract of employment; 14 (b) Return of the sum of RM116,000 paid by Cecilia on behalf of Wife to the investors; (c) Outstanding salaries and allowances; (d) Employee Provident Fund contributions, due from the employer as well as the sum deducted from Cecilia, but not paid by Wife. 55. From the reliefs sought by Cecilia in the Sessions Court Suit, it is evident that the crux of Cecilia’s claim is based on employment matters with the School and/or with Wife. And whether there is indeed payment of monies of a specific amount (i.e. RM116,000) made by Cecilia on behalf of the School and/or Wife. 56. In contrast, the Plaintiffs are claiming for a return of their monies paid to or invested directly with Ghulam and the other defendants. The Plaintiffs’ claim in Suit 662 and Suit 665 is unrelated to Cecilia’s claim in the Sessions Court Suit. 57. The Plaintiffs are claiming as investors. The plaintiff in the Sessions Court Suit (i.e. Cecilia), on the other hand, was not an investor but was said to be a person who solicited investors. 58. As such, there is no duplicity of claims. Nor could the Plaintiffs have possibly intervened in the Sessions Court Suit, as contended by Ghulam. 59. The issues that were in question or to be determined in the Sessions Court Suit did not deal with the investment scheme operated by the 15 defendants. There was no finding made by the learned Sessions Court Judge concerning the investments made by the Plaintiffs in the School. 60. The 1* plaintiff and 2"? plaintiff in Suit 665 testified as witnesses on behalf of Cecilia in the Sessions Court Suit. It is not the case that the Sessions Court rejected their evidence, as contended by Ghulam. The Sessions Court merely found no evidence in support of Cecilia’s claim for RM116,000 supposedly paid to a third party investor, which was not even pleaded. 61. This can be seen in the Grounds of Judgment of the learned Sessions Court Judge which said: “Bagi isu seterusnya iaitu tuntutan pemulangan wang RM116,000.00 yang dibayar oleh plaintif kepada pelabur defendan dan mahkamah mendapati setelah meneliti keterangan plaintif dan saksi-saksi yang dikemukakan, isu pelaburan telah gagal dibuktikan. Saksi-saksi yang hadir gagal membuktikan isu ini. Keterangan saksi-saksi ini mengesahkan ada membuat pelaburan yang berjumlah ratusan ribu ringgit malah ada yang mencapai sehingga lapan ratus ribu ringgit pelaburan dengan pihak sekolah. Namun begitu tidak ada seorangpun yang berjaya menunjukkan bukti dokumentari urusan pelaburan ini samada dari segi urusan perjanjian atau pembayaran keuntungan. Plaintif mengatakan pelaburan ini adalah untuk kemajuan dan perkembangan kampus baru SIS namun tiada sebarang dokumen dikemukakan plaintif bagi pembuktian skim pelaburan. Kewujudan bayaran kepada pelabur SP6, Muslim Shah langsung tidak dinyatakan didalam tuntutan plaintif. Jika benar fakta bahawa plaintif membuat bayaran kepada seorang bernama Muslim Shah fakta ini dari awal patut diplidkan dan dinyatakan dengan jelas dalam penyata tuntutan plaintif. Apa yang nyata plaintif langsung tidak menyebut kepada Siapakah bayaran dibuat sehinggalah pada hari bicara. Walau bagaimanapun fakta ini tidak langsung disokong oleh sebarang keterangan dokumentari. Wang sejumlah RM116,000.00 adalah satu jumlah yang besar. Jika benar, ada pembayaran dibuat, plaintif sepatutnya mengemukakan bukti pembayaran atau bagaimana transaksi bayaran tersebut dibuat. Prinsip yang jelas adalah pihak-pihak terikat dengan pliding yang difailkan. Oleh itu mahkamah menolak keterangan ini dan tuntutan plaintif untuk sejumlah RM116,000 telah gagal dibuktikan.” 16 62. It seems to me that the finding in the Sessions Court Suit was confined to whether or not there is a payment of RM116,000 made by Cecilia to a third party investor on behalf of Wife. The Plaintiffs’ claim in Suit 662 and Suit 665, particularly those who became witnesses in the Sessions Court Suit, was never an issue decided in the Sessions Court Suit. As such, the findings of the learned Sessions Court Judge cannot operate as an estoppel against the Plaintiffs’ claim. 63. The Court of Appeal case of Ang Game Hong & Anor v Tee Kim Tiam & Ors [2018] 4 MLJ 432 is instructive. The Court said (at page 443): “[30] Next we shall deal with the second issue as to whether the principle of the res judicata applies. This issue is actually related to the first issue. It was our view, like in the first issue, the same argument can be used here. The position of the law is clear following the Federal Court in Serac Asia Sdn Bhd which adopted its decision in another case ie Hock Hue Bank Bhd v Sahari bin Murid [1981] 1 MLJ 143 which, inter alia, held that the court had no power under any application in the same action to set aside a judgment regularly obtained after it had been entered unless it is a judgment by default or made in the absence of a party at a trial or hearing. In the instant case, the plaintiff's position is stronger. Not only in 2004 case it was a judgment in default, the default judgment was not against the plaintiff but the first defendant and that the plaintiff was not a party to the 2004 case. As submitted by learned counsel for the plaintiff and we agreed, the issue between the plaintiff and the second and third defendants were not adjudicated in the 2004 case. Thus the default judgment should not be binding against the plaintiff. So also with the consent judgment, which the plaintiff had nothing to do with. [31] ... There had never been any issue between the plaintiff and the second and third defendants that had been heard and tried in the 2004 case that it can legitimately be said that the respective liability of each party was very fully litigated. Moreover the cause of action in this instant case is distinct and separate from that in the 2004 case. In the present case, the plaintiff's cause of action is that he has the indefeasible title in the land while in 2004 case the second and third defendants’ cause of action was based on their right in the land as against the allegation of fraud committed by the first defendant. Hence, 17 we agree with the learned High Court judge that res judicata does not apply in the instant case.” 64. Also the Court of Appeal case of Tanalachimy a/p Thoraisamy & Ors v Jayapalasingam a/l Kandiah & Ors (sued as liquidators of the Great Alonioners Trading Corp Bhd) and another appeal [2014] 4 MLJ 85 at 103- 104 which said: ‘[46] ... Res judicata is essentially an equitable doctrine founded on considerations of public policy. ‘In modern terms, it is against public policy, and oppressive to the individual, to re-agitate disputes which have been litigated to a conclusion.’ (Spenser Bower, Turner & Handley, Res Judicata, p 4) There could be situations when an overly rigid adherence to the doctrine can lead to oppression to a party, in which event it may be inequitable to apply it unquestioningly. We have been referred to the decision of the Court of Appeal in Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 4 MLJ 346, and the following passage in the judgment: Now, there is a dimension to the doctrine of res judicata that is not always appreciated. It is this. Since the doctrine (whether in its narrow or broader sense) is designed to achieve justice, a court may decline to apply it where to do so would lead to an unjust result. (at p 357 of the report, per Gopal Sri Ram JCA (as he then was)) [48] To apply issue estoppel, it will become necessary to define clearly what are the issues which were finally decided by the earlier court so as to be held binding on a later court. There cannot be an issue estoppel if the issue or issues have not received a final determination. On a broader basis, the doctrine can apply if the issues or issues were fundamental issues which formed an essential step in the reasoning which led to the decision in the earlier action, or were the basis of the earlier judgment.” 65. On the facts of the instant case, the issues between the Plaintiffs and Ghulam were not adjudicated in the Sessions Court Suit. As such, it is my finding that res judicata does not bite. 66. Ghulam harps on the fact that the 1° plaintiff and 2"? plaintiff in Suit 665 failed to produce any document in the Sessions Court Suit to prove 18 the existence of the alleged investment scheme. However their reply was that the Sessions Court Suit was Cecilia’s case, and that was why they did not bring the documents to the Sessions Court. 67. Ghulam avers that the alleged investment scheme does not exist at all, and that this is supported by the findings of the learned Sessions Court Judge. But Plaintiffs contend that it is not necessary for them to prove the existence of the alleged investment scheme in order to succeed in their action. The alleged investment scheme merely serves as a description of the modus operandi of Ghulam to obtain unjust enrichment from the Plaintiffs. 68. As such, the Plaintiffs say that the existence of the alleged investment scheme is only ancillary to their claims, failing which, would not affect their claims. This is because the Plaintiffs’ claim against Ghulam is premised on unjust enrichment. The Plaintiffs only have to prove the elements of unjust enrichment to succeed in their claim. 69. At this stage of the proceedings, | do not have to delve into the respective merits of the claims. Suffice it for me to say that this is a question fit to be tried. Not a plain and obvious case for striking out 70. My view is that the SOCs disclose a reasonable cause of action for unjust enrichment. This was specifically pleaded at paragraph 18 of the SOC in Suit 662 and paragraph 16 of the SOC in Suit 665. 71. On the face of the SOCs: 19 (a) Ghulam was enriched by the advance of the monies made by the Plaintiffs to him and the other defendants; (b) Ghulam has retained the monies at the expense of the Plaintiffs, despite them having demanded the return of the same. 72. In Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441, the Federal Court explained that a cause of action in unjust enrichment can give rise to a right of restitution where it is established that: (a) the defendant has been enriched; (b) the enrichment was gained at the plaintiffs expense; (c) the retention of the benefit by the defendant was unjust; and (d) there is no defence available to extinguish or reduce the defendant's liability to make restitution. 73. Inthe present case, the SOCs have pleaded the following: (a) Ghulam was enriched; (b) that enrichment was at the expense of the Plaintiffs; (c) the monies advanced by the Plaintiffs were not intended to be gratuitous payments; 20 (d) the enrichment was unjust in that there was no cause for Ghulam to retain the monies. 74. The question whether the retention of the monies received is unjust requires a close and careful examination of evidence from both sides. And whether there is a defence to extinguish or reduce the liability (if any) to make restitution requires mature consideration. These are triable issues that need to be fully argued at trial. 75. For now, | must presume that the averments in the SOCs are true (there being no Defence filed by Ghulam). (See Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor [1998] 2 MLJ 498; [1998] 3 CLJ 253). On the face of it, a cause of action for unjust enrichment has been sufficiently pleaded in the SOCs, rendering it improper to be struck out summarily. 76. Moreover, | find that the Plaintiffs’ claim are not frivolous, vexatious, scandalous or an abuse of the process of court. The Plaintiffs’ claim are substantiated with particulars not only in the SOCs but also in the Common Bundle of Documents dated 6.11.2016, which was filed in Suit 55. (See paragraph 13(d) of the affidavits affirmed on 24.7.2019 by the 1* plaintiff in Suit 662 and by the 2" plaintiff in Suit 665 respectively). 77. Ghulam avers that the Plaintiffs could not have advanced any monies and thus did not suffer any loss. | am cognizant that | should not conduct a trial on affidavit, nor embark on a minute examination of the documents. | would simply point out that Ghulam’s contention does not appear to be tenable, considering the available evidence before this court. 21 78. The Plaintiffs produced documentary evidence of monies deposited with the School through cash deposit (in Suit 662) or HSBC Telegraphic Transfer (in Suit 665). These monies were said to be deposited as a form on investment based on the Plaintiffs’ reliance on Ghulam’s representation that guaranteed the payment of returns and/or return of capital. (See paragraph 25 and Exhibit “MA-14” of the affidavit affirmed on 24.7.2019 by the 1* plaintiff in Suit 662. And paragraph 25 and Exhibit “TN-12” of the affidavit affirmed on 24.7.2019 by the 2™ plaintiff in Suit 665). 79. After repeated request for the return of their investment, the Plaintiffs aver that they were given/handed cash cheques and/or cheques which were subsequently dishonoured and/or were asked not to present the same. (See paragraphs 23-24 and Exhibits “MA-12” and “MA-13” of the affidavit affirmed on 24.7.2019 by the 1* plaintiff in Suit 662. And paragraphs 23-24 and Exhibits “TN-10” and “TN-11” of the affidavit affirmed on 24.7.2019 by the 2" plaintiff in Suit 665). 80. All of these reinforces my finding that the SOCs are not obviously unsustainable. In the present consolidated suit, there are 6 separate plaintiffs who had no previous relationship with each other. They now say that each of them had advanced monies to Ghulam, relying on the same promises made by Ghulam. This must surely raise some triable issue. Conclusion 22 81. For the reasons above, | dismissed Enc 116 and did not allow the striking out by Ghulam. As agreed by the parties, | made no order as to costs. Dated 24 May 2021 ae, Quay Chew Soon Judicial Commissioner High Court of Malaya, Kuala Lumpur Civil Division NCvC 10 Counsels M. Lavendran and Andrea Tan Soon Li (Messrs Peter Chambers) for the Plaintiffs. Yeoh Choo Keong and Navpreet Singh (Messrs Ranjit Singh & Yeoh) for the 2" Defendant (in Suit 662) and 18* Defendant (in Suit 665). Cases cited Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7; [1993] 3 MLJ 36; [1993] 2 AMR 1969 Metroplex Holdings Sdn Bhd v Commerce International Merchant Bankers Bhd [2013] 4 MLJ 520 Shahidan Shafie v Atlan Holdings Bhd & Anor & Other Appeals [2005] 3 CLJ 793 TM Feroze Khan & Ors v Meera Hussain bin TM Mohamed Mydin [2000] 1 MLJ 321 Ang Game Hong & Anor v Tee Kim Tiam & Ors [2018] 4 MLJ 432 Tanalachimy a/p Thoraisamy & Ors v Jayapalasingam a/l Kandiah & Ors (sued as liquidators of the Great Alonioners Trading Corp Bhd) and another appeal [2014] 4 MLJ 85 Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor [1998] 2 MLJ 498; [1998] 3 CLJ 253 Legislation cited Order 18 rule 19 and Order 20 rule 5 of the Rules of Court 2012 Sections 2, 8(1) and 40(3) of the Insolvency Act 1967 23