LEMBAH KERJAYA SDN BHD (IN CREDITOR’S VOLUNTARY
LIQUIDATION) & ANOR v SUNDARASAN A/L ARUMUGAM
CaseAnalysis
| [2022] MLJU 2562
Lembah Kerjaya Sdn Bhd (in creditor’s voluntary liquidation) & Anor v
Sundarasan a/l Arumugam [2022] MLJU 2562
Malayan Law Journal Unreported
HIGH COURT (KUALA LUMPUR)
NADZARIN WOK NORDIN J
NOTICE OF MOTION NO WA-28PW-243-08 OF 2021
1 September 2022
Sukhwinder Singh (Sukhwinder Singh N Mahinder Singh) for the applicant.
S Ravichandaran (with Puvarnisha Paskaran) (S Ravichandran & Anuar) for the respondent.
Nadzarin Wok Nordin J:
GROUNDS OF JUDGMENT
(Enclosure 1)
[1] By way of the Notice of Motion dated 27.8.2021 (Motion) in enclosure 1, the Applicants
have, inter alia pursuant to sections 456, 502, 503, 509, 511 and 514 of the Companies Act
2016 applied to this Court for the following orders:
(i) That the Respondent delivers the following documents / information to the 2nd Applicant
within 30 days from the Order of this Court:
(a) The 1st Applicant’s statement of affairs;
(b) Details of the 1st Applicant’s bank accounts;
(c) The 1st Applicant’s accounting records and documents;
(d) The 1st Applicant’s books, records, assets, including but not limited to cash and fixed
deposit certificates;
(e) The 1st Applicant’s documents, books, records of assets that belong or appear to
belong to the company;
(f) All records and information pertaining to the promotion, formation, trade dealings,
affairs and property of the 1st Applicant;
(g) All information pertaining to the disposal of the 1st Applicant’s assets;
Lembah Kerjaya Sdn Bhd (in creditor’s voluntary liquidation) & Anor v Sundarasan a/l Arumugam [2022] MLJU
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(h) The 1st Applicant’s monthly statements of payments and receipts and of position in
the winding up, adjudication upon proofs of debt lodged, settling the lists of
contributories and creditors;
(i) The 1st Applicant’s Account of Receipt and Payments;
(j) The Statement of the Position in the 1st Applicant’s Winding-up under section 514 of
the Companies Act 2016 or section 281 of the Companies Act 1965;
(k) All information and records of steps taken for possession of the assets of the 1st
Applicant and any action taken against the directors and others connected with the 1st
Applicant to locate and recover the assets;
(l) All minutes of meetings of the 1st Applicant’s creditors and contributories;
(m) All updates of the 1st Applicant’s liquidation process issued to creditors;
(n) All other information and documents pertaining to the status of the winding up of the
1st Applicant;
(o) Details of the Housing Development Account for the project known as Putra Intan
Condominium (‘the Project’);
(p) All information and original individual titles and/or original strata titles and/or master
titles for the Project;
(q) All agreements, payments, documents, books, records and bank statements for the
Project;
(r) All payments to contractors, sub-contractors and service providers for the Project;
(s) All accounting and sale records (including disposals of common facilities) for the
Project;
(t) Details of the financial institutions or banks providing end financing to the purchasers
of the units for the Project;
(u) Details of the 5% final stakeholder progress payment at No. 5 of the Schedule of
payment of purchase price under the Third Schedule of the Project’s Sale and
Purchase Agreement;
(v) Details of the release of 20% of the sums under No 2 (h), 3 and 4 and / or any
amount remaining under the Schedule to the Project’s Sale and Purchase
Agreement;
(w) All sums received by the liquidator and / or solicitors for the 1st Applicant for the
Project;
(x) Information of forfeiture and retention of payments and damages awarded against
any party for the Project;
(y) All other information and documents pertaining to the Project.
(ii) That the Respondent, be summoned before this Honourable Court to appear, on a date
to be determined by this Honourable Court, for a sworn examination by word of mouth
and to reduce the questions and answers to the examination in writing and signed.
(iii) That the costs of this application be paid by the Respondent to the Applicants.
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[2] Amongst the grounds in support of the Motion was that:
(i) the 1st Applicant was put into Creditors Voluntary Liquidation on 10.3.2009 and one
Jambulingam Sethuraman-Raki (Jambulingam) of Rimbun Corporate Advisory Sdn Bhd
(Rimbun) was appointed liquidator;
(ii) Jambulingam passed away on 3.10.2017;
(iii) the Respondent was appointed the liquidator of the Respondent on 23.10.2017, when he
was at the material time also a director of Rimbun;
(iv) the 2nd Applicant was appointed a liquidator for the 1st Applicant on 14.11.2017;
(v) a dispute arose as to whether the 2nd Applicant was the lawfully appointed liquidator for
the 1st Applicant. That dispute was adjudicated upon by the Kuala Lumpur High Court on
1.7.2019 whereby it was ordered that a fresh creditors meeting be held to appoint the
liquidator for the 1st Applicant. This Order was affirmed by the Court of Appeal;
(vi) the Creditors Meeting was held on 2.3.2021 where it was resolved that the 2nd Applicant
shall be the 1st Applicant’s liquidator;
(vii)the 2nd Applicant has appointed a firm of solicitors to seek the necessary documents and
information which was done by way of a letter dated 18.3.2021 to the Respondent.
However, to date no response has been received which necessitates the filing of the
Motion. To compel production of documents and information.
[3] The Respondent opposes the Motion and submits that:
(i) he does not have any additional documents, information or knowledge to share with the
Applicants;
(ii) the Applicants are on a fishing expedition and this Court must not assist them on this;
(iii) the Applicants have failed to show whether the Respondent does possess the
documents and/or information prior to the winding up of the 1st Applicant.
[4] I had on 9.8.2022 given my decision on the Motion after hearing the respective learned
counsels submit before me on 7.7.2022. The Respondent being dissatisfied with my decision
has since filed an appeal and herewith are my written grounds on the same.
Brief Background
[5] The 1st Applicant was the developer and owner of a project consisting of a 243 unit
condominium known as Putra Intan in Dengkil, Selangor (‘the Project’). Sales for the units began
on or about the year 2001.
[6] The 1st Applicant is also the owner of a piece of land adjacent to the Project.
[7] Before the Project was completed, the 1st Applicant was put into Creditors’ Voluntary
Liquidation on 10.03.2009. One Jambulingam Sethuraman-Raki of Rimbun Corporate Advisory
Sdn Bhd was appointed liquidator.
[8] The Project was declared abandoned by the Housing and Local Government Ministry on
12.5.2010.
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[9] Jambulingam then obtained a court order dated 10.12.2009 to manage, revive and complete
the Project. By that order, Mr. Jambulingam was given the authority to deal with the monies in
the 1st Applicant’s Housing Developer Account (‘HDA’) kept at CIMB Bank’s Batu Caves branch.
[10] Rimbun Corporate Advisory Sdn Bhd (‘Rimbun’) was then appointed to fund the
management, revival and completion of the Project. Based on a newspaper article, the Project
was completed in December 2010. The total selling price of the condominium units in the Project
is approximately RM 37 million.
[11] Jambulingam passed away on 3.10.2017 and on 23.10.2017 the Respondent was
allegedly appointed as the liquidator for the 1st Applicant.
[12] At the material time, the Respondent was also a director of Rimbun.
[13] The 2nd Applicant was also appointed as the liquidator for the 1st Applicant by a creditors
meeting dated 14.11.2017.
[14] A dispute arose as to whether the Respondent or the 2nd Applicant was the lawfully
appointed liquidator for the 1st Applicant. That dispute was adjudicated upon by the Kuala
Lumpur High Court on 1.7.2019. The High Court ordered a fresh creditor’s meeting to appoint
the 1st Applicant’s liquidator.
[15] Pending the hearing at the Respondent’s appeal against the High Court’s decision, a stay
was granted by the Court of Appeal on 10.7.2019.
[16] On 11.8.2020 the Court of Appeal unanimously affirmed the decision of High Court dated
1.7.2019.
[17] However, before the creditor’s meeting could be held, the Respondent, in his capacity as
liquidator for the 1st Applicant executed Form 76 and forwarded a sum of RM 35,826.87 to the
Jabatan Insolvensi as unclaimed monies on 3.11.2020.
[18] The Respondent had also executed and lodged Form 75 accounts of receipts and
payments of the 1st Applicant (‘Liquidation Account’) for the period 23.4.2020 to 11.8.2020.
[19] The court-sanctioned creditor’s meeting was held on 2.3.2021 wherein it was resolved that
the 2nd Applicant shall be the 1st Applicant’s liquidator.
Findings
[20] This Court finds that the 2nd Applicant is only exercising his statutory duty as a liquidator to
seek for the said documents pertaining to the 1st Applicant, the Project and the land adjacent to
the Project.
[21] Further this Court holds that upon a careful perusal of sections 502 & 503 Companies Act
2016, that the same is wide enough to cover issues pre as well as post the Winding Up Order
and as such I quote and adopt the statement that:-
“The persons to be queried may include officers of the company (being wound up) and any other persons (third parties)
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known or suspected to have in his possession any property of the company as well as any persons whom the court
considers capable of giving information concerning the promotion, formation, trade dealings, affirms or property of the
company.” See Eliad Pty Ltd v D&P Process Technologies Sdn Bhd & Anor [2021] MLJU 477.”
[22] As to the issue of delay contended by the Respondent in filing the Motion herein, the facts
before this Court shows that the Creditors Meeting which was only held on 2.3.2021, as per the
Order by the High Court, had resolved that the 2nd Applicant shall be the 1st Applicant’s
liquidator. Thus, since the Motion was filed on August 2021, I find no delay in filing the Motion as
the period of approximately 5 months does not in this Court’s view tantamount to a delay based
on the circumstances of the matter before me.
[23] I find that the Respondent in both his capacity as the former liquidator of the 1st Applicant
and by virtue of his position as a director of Rimbun would have access to the documents
sought by the 2nd Applicant in the Motion herein or would likely have the necessary information
and/or details sought in the Motion.
[24] The fact that the Respondent contends that his appointment was allegedly nullified by the
High Court Order of 1.7.2019 does not detract from the fact that he had acted as the liquidator of
the Respondent as can be seen by the various actions undertaken by him e.g obtaining the
blanket consent from the relevant authorities with regards the Project, and the unclaimed
monies being sent to the Jabatan Insolvensi amongst others.
[25] Even if the High Court Order of 1.7.2019 had the alleged effect of nullifying the
Respondent as the liquidator of the 1st Applicant, which I do not agree that it had, the acts of the
Respondent clearly shows that he had taken actual and active steps whilst he was in the
position as the “liquidator” of the 1st Applicant albeit not allegedly validly appointed.
[26] After consideration of the entire matter before me and based on my findings hereinabove, I
do not find that an examination of the Respondent is necessary as it could amount to the same
being oppressive to the Respondent and for which I take guidance from the case of Hicom
Berhad v Bukit Cahaya Country Resorts Sdn Bhd (Syarikatno:253306-T) [2005] MLJU 418,
where Ramly Ali J (as he then was) held:
“In Cloverbay Ltd. (Joint Administrators) v. Bank of Credit And Commerce International S. A. (1991) Ch 90 , the Court of
Appeal held that in exercising its discretion to order examination of a party, the Court has to balance the requirements of
the applicant against any possible oppression to the person to be examined. If the information required is so fundamental to
any assessment of whether there is a cause of action against that party and the degree of oppression is small the order
should be made but not otherwise.
It was also held in that case that the case for making an order against an officer or former officer of the wound up company
will usually be stronger than it would be against a third party. Officers owe the company fiduciary duties and a statutory
obligation is imposed on them to assist the Liquidator but no such considerations apply when an order is sought against a
third party who owes no duty to the wound up company. It was also stressed in that case that an order for oral examination
is much more likely to be oppressive than an order for the production of documents as it provides the opportunity for pre-
trial dispositions, to incriminate the examinee which the liquidator or creditor or contributory would never otherwise entitled
to.’
[27] I however hereby order that the said documents sought in the Motion to be handed over to
the 2nd Applicant as the liquidator of the 1st Applicant but I am not allowing the Respondent to be
orally examined but am instead making an order for written interrogatories to be done.
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[28] This Court thus hereby grants order in terms for prayers 1(a) to (y) and prayer 3 for costs
to be paid out of the assets of the 1st Applicant. I will in respect of prayer 4 make the following
orders:-
(i) written interrogatories are instead to be issued by the 2nd Applicant to the Respondent
within 4 weeks from this order on the Respondent via his solicitors;
(ii) the Respondent to reply within 3 weeks there from the date of the service of the said
Written Interrogatories;
(iii) the format of the Written Interrogatories shall be as per Form 45 of the Rules of Court
2012 and the answers thereto shall be as per Form 47 of the Rules of Court 2012;
(iv) an order for liberty to apply.
End of Document
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