Sykt Ogen LED Sdn Bhd [No. Sykt: 201601001793] 1.Balaguru a/l Muniandy [No. K/P: 760330-08-5759] Dalam kapasiti peribadi dan berniaga diatas nama dan gaya Ogen Worldwide [No. Pendaftaran: 202003039005] 2. Azzumas Technology Sdn Bhd [No. Syk

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO.: BA-22NCC-89-06/2020 BETWEEN SYARIKAT OGEN LED SDN BHD … PLAINTIFF [NO. SYKT: 201601001793] AND 1. BALAGURU A/L MUNIANDY … DEFENDANTS [NRIC NO.: 760330-08-5759] Dalam kapasiti peribadi dan berniaga diatas nama dan gaya Ogen Worldwide [No. Pendaftaran: 202003039005] 2. AZZUMAS TECHNOLOGY SDN BHD [COMPANY NO: 201901035128] ______________________________________________________________________ JUDGMENT The Application 1. The plaintiff, Syarikat Ogen Led Sdn Bhd, has filed this application seeking the following injunctive reliefs against Balaguru A/L Muniandy (the 1st defendant) and Azzumas Technology Sdn Bhd (the 2nd defendant): (a) An interim prohibitory injunctive order against the defendants (including the directors, agents, nominees, employees of the defendant and/or any relevant person associated) to prohibit/restrain them from performing any activities including 1 attempts to sell, market, supply and/or storing products which have the tradename and logo of “Ogen Led”; (b) An interim prohibitory injuctive order against the first defendant to retract his company’s profile at www.ogenworldwide.com which uses the tradename of “Ogen Led” as well as all the details including pictures and articles which have been altered; (c) An interim prohibitory injunctive order against the defendants (including the directors, agents, nominees, employees of the defendant) in making any representation in whatsoever manner and form, to any third parties including its customers, that the second defendant has been appointed as master distributor to the plaintiff; (d) An interim prohibitory injunctive order against the defendants to restrain them from approaching the plaintiff’s client in whatsoever forms of communication, including letters, emel, telephone, short messaging with the intention of damaging the reputation and image of plaintiff’s product and its directors; 2 (e) An injunctive order against the defendants to surrender all the confidential information including list of prices, customer’s list and suppliers list of the Led products to the plaintiff forthwith. (f) An interim prohibitory injunctive order against the defendants from utilising any confidential information belonging to the plaintiff in their marketing, sales and supply of the plaintiff’s products. (g) Costs of this application to be costs in the cause; (h) Such further and other reliefs which this honourable Court deems fit and proper to give. Background Facts 2. The plaintiff’s company was incorporated in 2016. It is in the business of supplying and servicing LED lights. It has a trademark registered under its name as “Ogen LED”. It was a dormant company set up to maintain the tradename. Mr Muraly Muniandy and the 1st defendant were the only two directors and shareholders of the plaintiff and the latter held 51% of the shares in the plaintiff. 3. In mid 2019, the plaintiff became involved in marketing of its products through DBMM Jaya Sdn Bhd and employed two fulltime staffs to oversee its business. 3 4. DBMM Jaya Sdn Bhd was incorporated in 2014 and its directors were also Mr Muraly Muniandy, the 1st defendant, and one other person. The share composition of DBMM Jaya Sdn Bhd at that time was as follows: Ishak bin Yeop Hamzah: 40,000 shares Balaguru Muniandy : 460,000 shares Muraly Muniandy : 500,000 5. Disagreements surfaced between Mr Muraly and the 1st defendant sometime towards the end of 2019. The 1st defendant by whatsapp messages to Mr Muraly called for a board meeting with the intention of ending all business relationships between them. A meeting was held on 23 December 2019. There is a serious dispute as to whether the meeting called for on that day was for the plaintiff or DBMM Jaya Sdn Bhd or both. The 1st defendant averred that day he had attended a meeting for DBMM Jaya Sdn Bhd, and denied calling for or attending any meeting of the plaintiff. Mr Muraly, on the other hand, has averred for the plaintiff that there were two meetings, one for the plaintiff and one for DBMM Jaya Sdn Bhd. 6. The plaintiff’s minutes of meeting show that the board meeting took place on 23 December 2019, which the 1st defendant attended. The minutes also show that the members resolved, inter-alia, the following: 4 a. The adoption of a new Constitution which allowed one director to make decisions for the plaintiff. b. Allotment of shares to one Magesan and Selvi in extinguishment of a debt due by DBMM to Magesan and Selvi. c. That the 1st defendant shall not after the date of the meeting, deal with the management and administration of both the companies pending some “internal issue” as regards to the allegation of him mismanaging company funds. 7. The 1st defendant disputes the minutes and the validity of all resolutions passed at the board meeting. 8. The shareholding of the plaintiff was changed based on the plaintiff’s minutes of meeting. New shares were issued to Magesan and Selvi, who were the brother and niece of Muraly, and the shareholding of the company was then changed to: Muraly Muniandy : 490 Balaguru Muniandy : 510 Magesen Muniandy : 224,000 Selvi Balan : 19,000 9. On 30.12.2019, the 1st defendant’s directorship in DBMM Jaya Sdn Bhd was terminated. 5 10. The following day, i.e. on 31.12.2020, the 1st defendant wrote a letter of demand under the plaintiff’s letterhead, without the board’s approval, to DBMM Jaya Sdn Bhd requiring it to pay backdated royalty fees for the usage of the trademark name “Ogen LED”. He altered the plaintiff’s letterhead by inserting his residential address. 11. On 3.2.2020, the 1st defendant again, without the approval of the board appointed the 2nd defendant company as master distributor for the plaintiff’s product. The appointment was done by issuing a false certificate using the plaintiff’s logo and tradename and company seal. The 1st defendant never requested from the plaintiff for the company seal which was kept at the Company Secretarial office. 12. The plaintiff on discovering of the 2nd defendant’s appointment, and through its solicitor on 5.2.2020 issued a legal notice to 2nd defendant company to stop representing themselves as the plaintiff’s distributor and notified them that the appointment was invalid. The 2nd defendant did not respond to the notice. 13. On 7.2.2020, the 1st defendant registered a business entity with the Suruhanjaya Syarikat Malaysia under the name of “Ogen Worldwide” running the same nature of business. He is registered as the sole director. The 1st defendant did not declare his conduct with the Board and neither did he obtain approval from the Board. 6 14. The 1st defendant also created a web page under the web name www.ogenworldwide.com. In that profile, he had without approval from the plaintiff’s company and DBMM Jaya Sdn Bhd, used materials, photos and contents and uploaded the same with modifications. He made alterations to images by removing Mr Muraly from the pictures and changing DBMM to Ogen Led. 15. On 2.3.2020, the 1st defendant again issued another letter of demand to DBMM Jaya Sdn Bhd under the plaintiff’s letter head. In this letter, the 1st defendant reminded DBMM Jaya Sdn Bhd to pay royalty and also alleged that the 2nd defendant had paid royalty fees to plaintiff. However, no such payment was ever received by the plaintiff. The 1st defendant subsequently alleged that he had received a cheque for RM11,000.00 from the 2nd defendant, but has been holding on to it for the last one year and did not bank it into the plaintiff’s account because of the problems with Mr Muraly. 16. Thereupon, the 1st defendant filed Originating Summons BA-24NCC-31-03/2020 in Shah Alam High Court [“Suit 31”] pursuant to section 103 of the Companies Act 2016 to dispute the allotment of shares to the new shareholders. The action was premised on the allegation that he did not attend any meeting for the plaintiff on 23 December 2019. The Court granted an interim injunction to restrain the new shareholders from exercising their rights as shareholders of the plaintiff, and further ordered the action to be converted to a Writ action as there were serious factual issues to be tried, and the same is pending in Court. 7 17. In June 2020, the plaintiff filed the instant action against the defendants. The cause of action against the 1st defendant is for breach of his fiduciary duties whilst he was a director of the plaintiff, whereas the cause of action against the 2nd defendant is for the tort of passing off for unlawfully using the plaintiff’s tradename “Ogen Led”. 18. Pending the disposal of the present action, the plaintiff has filed the present application. It is premised on the ground that it will suffer irreparable damage and as it will lose its customer’s goodwill and the trust of their customers on its product and its tradename if an interim injunction is not granted. The plaintiff’s case 19. It is the plaintiff’s contention that the 1st defendant has not acted in the interest of the plaintiff in taking the actions in paras 10,11,13 and 15 above. These actions were taken unilaterally and without the board’s approval. 20. It is submitted that DBMM Jaya Sdn Bhd had been appointed by the plaintiff as the Sole Distributor. The 1st defendant had knowledge of it. The fact that the 1st defendant had appointed the 2nd defendant as Master Distributor using forged documents and had made alterations to pictures and uploaded them on his webpage is clear evidence that the 1st defendant had not acted in the interest of the plaintiff. 8 The first defendant’s case 21. It is the 1st defendant’s contention that the actions were undertaken for the benefit of the plaintiff. The plaintiff has suffered no losses and neither has he benefitted from these actions. 22. It is submitted that the plaintiff has shown no evidence in relation to the appointment of DBMM Jaya Sdn Bhd as Sole Distributor. As a director of the plaintiff, the 1st defendant argued, he had the right to appoint the 2nd defendant as Master Distributor. The plaintiff’s complaints on the appointment of the 2nd defendant are therefore baseless as it would bring benefit to the plaintiff as the latter would be required to pay royalties. 23. It is further argued that the only party that could probably stand to lose out in the appointment of the 2nd defendant is DBMM Jaya Sdn Bhd as it would now have to compete with a fellow distributor to market the plaintiff’s product to a wider market and pay royalties to the plaintiff for the many years of use of the intellectual property rights of the plaintiff without accounting for any form of monetary consideration. 24. It is next submitted that the 1st defendant set up ogenworldwide.com to market the plaintiff’s “Ogen Led” trademark and goodwill as well to market the 2nd defendant as the plaintiff’s master distributor. The plaintiff has suffered no loss from the incorporation of ogenworldwide.com or from the creation of the website. 9 25. The 1st defendant also contended that the issuance of the letter of demand dated 31.1.2020 to DBMM Jaya Sdn Bhd for payment of royalty fees for the usage of the plaintiff’s “Ogen Led” trademark was also done for the benefit of the plaintiff. The plaintiff, it is submitted, failed to show how its interest is affected or if any loss has been occasioned to it. He further added that if anything, DBMM would have faced a competitor but the same cannot be equated to the plaintiff suffering losses as the plaintiff and DBMM are separate entities. It would be for the benefit of the plaintiff for DBMM to pay royalties for the usage of the plaintiff’s intellectual property rights. 26. Lastly, it is contended that the present action is invalid as Mr Muraly had acted unilaterally in instructing the institution of this action using the plaintiff’s name without the authorisation of the board of directors of the plaintiff. The second defendant’s case 27. It is the 2nd defendant’s contention that it was unaware of the internal dispute between the directors of the plaintiff, and had entered into the Master Distributor agreement in good faith. It is submitted that the plaintiff would derive benefit under Master Distributor agreement as it would market the latter’s products and secure more customers for it. 28. It was said that if an injunction is granted against it, it would affect its business and its customers who need the products on an urgent basis. 10 29. It is argued that its failure to respond to the plaintiff’s letter of demand does not warrant an inference that it was conspiring with the 1st defendant to damage the reputation and image of the plaintiff’s products. It did not respond as the 1st defendant when contacted after the plaintiff’s letter of demand had assured it he had the power to appoint it as Master Distributor. The applicable law 30. The reliefs prayed for in the application as set out in paragraph 1 above are interlocutory prohibitory injunctions. The case of Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 is oft cited as the leading authority in relation to the grant of interlocutory and interim injunctions. In that case His Lordship Gopal Sri Ram JCA held as follows: “… the correct approach to be adopted and the stages of reasoning involved in the process of arriving at the conclusion as to whether interlocutory injunctive relief should be granted or withheld are those that have been neatly summarised by Hashim Yeop Sani J, (as he was then) (in Mohamed Zainuddin v Yap Chai Seng [1978] 1 MLJ 40. This is what that very eminent judge said in that case (at p 42)): Firstly to discover whether the plaintiff's case is frivolous or vexatious. If it is not, then to decide in whose favour the balance of convenience lies. If these factors are evenly balanced it may not be improper for the court to take into account any tipping in the balance 11 as revealed by affidavits … Secondly if the plaintiffs were to succeed at the trial, whether they would be adequately compensated for the interim restriction on their activities which the grant of an interlocutory injunction would have imposed. The judge then considers the balance of convenience, and if the relevant factors were evenly balanced the court should grant an interlocutory injunction which would maintain the status quo. It is said that at that stage the court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits.” (Emphasis added.) 31. His Lordship further held that an inquiry must be undertaken when hearing an application for an interim injunction. He clarified the nature of inquiry as follows: “First, he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must, when considering this question, bear in mind that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision the issues raised on the joinder and decide whether these are serious enough to merit a trial. If he finds, upon a 12 consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief is refused. On the other hand if he does find that there are serious questions to be tried, he should move on to the next step of the inquiry; Second, having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would provide by its grant against the harm that would result from its refusal. He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the injunction especially if he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief. Thirdly, the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to 13 produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo … Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff's equity, such as an award of monetary compensation in the event that he succeeds in establishing his claim at the trial.” 32. Adopting the approach set out in the case of Keet Gerald Francis, I proceed to consider the merits in the present application. Whether injunction ought to be granted 33. In this regard, the court has considered all relevant materials including the submissions of all parties. In coming to a decision, the court is mindful of the exhortation of the Court of Appeal that it must refrain from making any determination on the merits of the claim or any defence at this stage. Whether there are serious issues to be tried 34. It is common ground that based on Keet Gerald Francis, this Court is not to embark on a factual finding of facts on facts in dispute but to be satisfied by the evidence adduced in the application, as to whether there is a serious question to be tried. 14 35. It is the 1st defendant’s contention that that it was preposterous to suggest that he had breached his fiduciary duties as a director of the plaintiff when his actions would bring benefit to the plaintiff seeing that the 2nd defendant would pay royalties. The plaintiff had suffered no loss as a result of the actions taken by him. 36. On the limited facts and evidence before me, I am unable to agree with the position taken by the defendants that there are no serious issues to be tried. It is true that that the plaintiff and DBMM Jaya Sdn Bhd are separate and distinct entities but Mr Muraly had in his affidavit explained the symbiotic relationship that existed between both the companies. It is glaring that the 1st defendant took these actions against the plaintiff only upon his dismissal as director of DBMM Jaya Sdn Bhd. 37. If indeed the1st defendant had taken these actions for the benefit of the plaintiff, it is unclear as to why false documents were used in relation to the appointment of the 2nd defendant as distributor and the need to tamper or alter the pictures that were uploaded on www.ogenworldwide.com. Additionally, the 1st defendant’s alleged payment of royalty by the 2nd defendant and his failure to bank in the cheque is inconsistent with his allegation that his actions were for the benefit of the plaintiff. 15 38. On the affidavit evidence it is clear that there are serious issues of fact and law to be tried in this case, namely: (a) Whether the 1st defendant had committed any breach of fiduciary duties against the plaintiff’s company when he had on several instances, acted unilaterally without the consent approval of the board; (b) Whether the 1st defendant had unlawfully acted beyond his scope of power and duties as director by appointing the 2nd defendant company as “master distributor”; (c) Whether the plaintiff’s tradename had been unlawfully used by the 2nd defendant hence committing tort of passing off; (d) Whether the 1st defendant possess confidential information pertaining to plaintiff’s products and had misused them. (e) Whether the 1st defendant conspired with 2nd defendant to cause the plaintiff to lose its trademark and its business. 39. That brings me to the next step to consider, to wit, where that the balance of convenience lies. Where does the balance of convenience lie? 40. It is the 1st defendants contention that the balance of convenience lies in their favour as if the reliefs sought in the instant application are granted, the reputation 16 and image of the plaintiff would be severely affected as there will be a high likelihood that third party sellers and/or distributors such as the 2 nd defendant would refrain from becoming the plaintiff’s distributor. Further, an injunction would effectively stop all earnings which may be obtained from the payment of royalties that may be made by the 2nd defendant to the plaintiff. 41. It is in evidence that DBMM Jaya Sdn Bhd had issued a letter dated 25 October 2018 to one Mohamad Roslan bin Zainal Abidin appointing him as its agent. In this letter it is stated, inter-alia, that “DBMM Jaya is the proud technology partner and proprieter globally through its signature products brand OGEN LED lighting and have the sole ownership rights to it.” The letter is not disputed by the 1st defendant, who at the material time was a director and shareholder of DBMM Jaya.” It is unlikely DBMM Jaya Sdn Bhd would have issued this letter claiming to be the plaintiff’s Sole Distributor if the 1st defendant’s allegation is true. 42. The manner in which the 2nd defendant was appointed requires scrutiny as it and does not appear to have been in accordance with law. The defendants submission that this is immaterial as the appointment would generate revenue and profits cannot be countenanced. 43. Given the facts of this case, as well as the serious allegations against the 1st defendant which appear to be supported by some credible evidence, I am of the respectful view that the plaintiff would suffer serious injustice if the defendants are allowed to sell, market and supply the plaintiff’s products. In addition, the plaintiff 17 maybe prevented from carrying out its contractual obligations to DBMM Jaya Sdn Bhd. 44. On the evidence as a whole, the balance of convenience would appear to be in the plaintiff’s favour. Whether damages is an adequate remedy? 45. Lastly, the court considered whether damages would be an adequate remedy in this case. The 1st defendant contended that damages would be an adequate remedy, whilst the plaintiff contended otherwise. The plaintiff submitted that if an injunction is not granted, the loss suffered by the plaintiff would be irreparable and it will lose its customer’s goodwill and the tradename which it had built over the years through the marketing arm of the its trading company DBMM Jaya Sdn Bhd. I am inclined to agree with the plaintiff that damages would not be an adequate remedy in this case. This is because the harm that would befall the plaintiff are not of a kind which is capable of being quantified. Conclusion 46. In conclusion, the court finds that the questions posed in Keet Gerald Francis have to be answered in the plaintiff’s favour in that there are serious questions of law and facts to be determined at the trial. The court further finds that the balance of convenience leans in favour of the plaintiff for the issue of an interim injunction 18 against the defendant. And lastly, the court is satisfied that in the event that the defendant is successful, damages would be an adequate remedy. Dated: 29 March 2021 (S.M KOMATHY SUPPIAH) Judge High Court of Malaya Shah Alam Date of Decision : 5 March 2021 Solicitors :- For the Plaintiff: Navinderan Subramaniam, [Messrs Preakers & Partners] For the First Defendant: Choi Wai Onn, [Messr CY Wong Ng Partners] For the Second Defendant: Kee Mohd Thariq bin K Zainal Abidin, [Messrs Hifdzi Salmiah Kee Hanisah & Co.] 19