Hazrul Alis for the Appellant / 2nd Defendant Messrs Putra Taulan & Faiq Azizan Raiza Zakaria for the Respondent / Plaintiff Messrs Albar & Partners

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) GUAMAN SIVIL NO.D8-22-999-2005 -------------------------------------------------------------------------------------- ANTARA PROKHAS ASSET MANAGEMENT SDN BHD (No. Syarikat: 1135247-H) ... PLAINTIF DAN 1. ANGKATAN EDARAN ENTERPRISE SDN BHD (No. Syarikat: 279409-U) 2 NOR AZLAN BIN JAN (NO. K/P: B6859321) 3. RAZALI BIN ABDULLAH (NO. K/P: B5227694) 4. WAKIL PERIBADI (ESTATE) KEPADA ROSLI BIN HASAN (NO. K/P: B6831664) 5. A. ZARIN BIN A. KUDUS (NO. K/P: B4463672) 6. ABU BAKAR BIN ASHAARI (NO. K/P: B4394744) 7. MOHAMAD BIN HAJI NASRI (NO. K/P: B5759394) ... DEFENDAN- DEFENDAN JUDGMENT 1. This is an appeal by the 2nd defendant herein, Nor Azlan Bin Jan (D2), under enclosure 50 against the decision of Learned Timbalan Pendaftar (TP) given on 11.12.2019 in dismissing the D2’s application, as per enclosure 49, to set aside the order given by the court in granting leave to the Plaintiff, Prokhas Asset 1 Management Sdn Bhd to execute the Judgement against him on 29.1.2019 (Order of 29.1.2019). Background 2. The Plaintiff had earlier applied for leave to execute on 28.1.2019 via enclosure 33 pursuant to a Judgment In Default obtained against D2 to the 7th Defendant on 15.2.2007 and against the 1st Defendant (D1) on 17.1.2007. The said leave to execute was obtained on 29.1.2019 (Leave) after hearing the application which was made ex parte. 3. The Plaintiff was previously known as Danaharta Urus Sdn Bhd, and D2 had been a guarantor to a loan obtained by D1 from Bumiputera Commerce Bank Berhad (formerly known as Bank of Commerce (M) Bhd incorporating Bank Bumiputera Malayisa Berhad and who in 1999 was vested into Danaharta Urus Sdn Bhd). 4. From 14.9.2007 to 2.11.2012 various negotiations for settlement were held between the parties. From the evidence before this Court, D1 has been writing to Prokhas Asset Management Sdn Bhd (Prokhas) since 8.10.2007 or its solicitors with regards the same. 5. On 29.5.2015 there was a Vesting Order between Danaharta Urus Sdn Bhd and Prokhas, whereby Danaharta Urus vested all its business assets and liabilities to Prokhas with effect from 2 14.3.2015 pursuant to sec 19 of the Akta Pengurusan Danaharta Nasional Bhd. 6. D1 was subsequently wound up on 27.7.2016. 7. On 28.3.2019 Prokhas obtained an order from the court to amend the plaintiff’s name to Prokhas in all cause papers in this suit via enclosure 37 (for leave to execute) & enclosure 40, which application was served on all parties. 8. On 4.9.2019, D2 then applied to set aside the Order of 29.1.2019 on the grounds that : i. the Plaintiff’s application was late and without proper reasons and therefore were frivolous, vexatious and an abuse of court process; and ii. Plaintiff does not have the locus standi and a cause of action as the Plaintiff had sold and/or transferred all its rights and interest to another Company in the year 2015. Court’s Findings Preliminary Objection 9. For the record, these are my grounds based on D2’s application at enclosure 49 and his Affidavit In Support thereto at enclosure 48. This court will not be delving into any other issues not raised in the said enclosures 48 or 49 as it is trite that the same will not be 3 entertained as any statement or averments or issues not raised as a ground in the Application or the affidavit in support thereto would tantamount to (i) statements from the bar which cannot be entertained by the court and (ii) matters on which the application was not grounded on. 10. To begin with, I must state that D2 had raise a preliminary objection (PO) of which I have taken note of and which related to the use of the alleged defective affidavits by the Plaintiff and which I hold I am not constrained to make reference to, as this was not raised in the aforementioned said enclosures 48 & 49. I dismiss the same on the ground that Order 2 rule 3 of the Rules of Court 2012 i.e Preliminary Objection for Non Compliance of Rules Not Allowed, allows me to allow such usage of the affidavits as I find absolutely no miscarriage of justice as a result of the alleged defect or non compliance to D2 herein. Plantiff not being in existance 11. I now come to the substance of the application which consists of D2’s contention that the Plaintiff was not in existence at time of Order for leave to execute was given by the learned TP on 29.1.2019. From the courts records it is clear that by virtue of the Order dated 28.3.2019 at enclosure 37, the Plaintiff had become Prokhas. Although this order was obtained ex parte, the application under enclosure 40 to amend the plaintiff’s name to Prokhas in all cause papers in this suit had been served on D2 on 25.3.2019 (see the Affidavit Of Service of the Plaintiff at enclosure 42) but neither D2 nor any of the Defendants had appeared in 4 Court on the date of hearing and thus the Court through the Learned TP exercised his discretion and made the order for the said enclosures 37 & 40. I hold that the said orders would now bind D2 as D2 had not attempted to set aside or appeal against the orders, despite having knowledge of such an application by the Plaintiff by virtue of being served with the cause papers for the said enclosure 40. 12. It is settled law that a Court order must be adhered to and every order / judgment is enforceable unless and until it is set aside. See the Court of appeal case of Lee Tian Tshung v Hong Leong Finance Bhd [2000] 3 MLJ 364 [2000] 4 CLJ 15 and Patel Holdings Sdn Bhd v Estet Pekebun Kecil [1990] 2 CLJ 280. 13. In any event I find that D1 had communicated with Prokhas as early as 27.9.2007 and therefore find that the Defendants have accordingly acknowledged the existence of Prokhas for the last 10 - 12 years and to now come to Court on their application to Set Aside as per enclosure 33 which was filed on 28.1.2019, would in this courts considered view be wholly unconscionable and improper bearing in mind the fact that D1 had been negotiating with Prokhas all this while. 14. D2 as a director of D1 must surely have knowledge of the said negotiations and cannot now suddenly raise the ‘corporate veil’ and deny that D2 had no knowledge of the same. In fact in the letters dated 27.9.2007 and 8.10.2007 from D1 to Prokhas (at enclosure 32 i.e exhibits R3 and R4 respectively of the Affidavit In Support of enclosure 33), it is clear that D2 had signed the letter as 5 a director of D1 and therefor has express knowledge of the negotiations. 15. I whole heartedly humbly adopt the statement of Gopal Sri Ram JCA (as he then was) in the case of Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 CLJ 577, which was quoted to me by counsel for the P’s that “there is a principle of great antiquity that a litigant ought not to benefit from its own wrong. Although of universal application, it has been restated when applied to a particular context. For example, the principle when applied in the context of the law of contract may be formulated as follows: a party ought not to be permitted to take advantage of his own breach. See Alghussein Establishment v. Eton College [1988] 1 WLR 587; New Zealand Shipping Co Ltd v. Societe Des Ateliers Et Chantiers De France”. Issue pertaining to the Judgment 16. It is clear that under Sec 6(3) Limitation Act 1953, the law requires that: (3) An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due. 17. Whereas Order 46 rule 2 of the Rules of Court 2012 on which D2’s application is predicated reads: 6 (1) A writ of execution to enforce a judgment or order may not be issued without the leave of the court in the following cases: (a) where six years or more have lapsed since the date of the judgment or order; (b) where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order; 18. Based on Order 46 rule 2 of the Rules of Court 2012, it is thus undeniable that the Plaintiff must provide reasons for the delay in applying for leave to execute the Judgment. 19. Accordingly, I have examined the documents and the affidavits before me as well as observed from the factual chronology of the matter from 14.9.2007 to 2.11.2012 and found that the parties had been negotiating a settlement of the matter, albeit between D1 and the Plaintiff, and that the reasons as enumerated by the Plaintiff are sufficient and justifiable reasons for this Court to consider in determining whether there was in fact a delay and the reasons put forth thereto and accordingly I find that there has been no delay in applying for leave in executing the Judgment as claimed by D2. 20. This is not a case of the Plaintiff sitting on its rights as it is evident that the Judgment was obtained on 15.2.2007 against D2 and just a few months later, negotiations between the Plaintiff and D1 had commenced. See Koperasi Pembangunan Desa v Merotai Setia Maju Enterprsie [2003] 5 CLJ 298. I therefore agree with the Learned TP that it is evident that there were negotiations in the settlement repayment process which were actively undertaken by 7 both P and D1 and that these reasons are acceptable and reasonable. 21. Cases such as Tio Chee Hing v Chung Khiaw Bank Ltd [1981] 1 MLJ 227 (FC) and Affin Bank Bhd v Wan Abdul Rahman bin Wan Ibrahim (CA) are clear that negotiations are indeed sufficient reasons for this court to take into account in deciding whether there has been a delay and to justify the granting of leave to execute a judgment beyond the 6 years after the same was obtained. 22. In the circumstances, I hereby dismiss the appeal with costs of RM5,000 after hearing the parties submit on costs. Dated 8th October 2020 sgd. NADZARIN BIN WOK NORDIN JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT Parties Hazrul Alis for the Appeallant / 2nd Defendant Messrs Putra Taulan & Faiq Azizan Raiza Zakaria for the Respondent / Plaintiff Messrs Albar & Partners 8