A winding-up petition cannot be filed on a disputed debt, as it may cause irreparable harm to the company, necessitating resolution through ordinary litigation.

JUDGMENT

Ahmad Murad Abdul Aziz J:

Introduction

[1] The Applicant (referred to as "Cekap" or Applicant where appropriate) applied for a Fortuna Injunction in encl 1 to restrain the Respondent from filing a Winding-Up Petition after the expiry of the Statutory Notice under s 466(1)(a) of the Companies Act 2016 (" CA 2016") issued by the Respondent.

[2] It is not disputed that the Statutory Notice is not based on any judgment obtained by the Respondent against the Applicant.

[3] The Respondent contends that the basis for its issuance of the Statutory Notice are as follows:

3.1 the documentary evidence shows that the Applicant was/is at all material times aware of the debt owed to the Respondent;

3.2 the Applicant had never disputed the debt until the filing of this Originating Summons;

3.3 the Applicant has agreed and/or admitted that the Respondent was/is entitled to backcharge the sum of RM44,028,654.20; and

3.4 the Applicant has even made part payment of the debt.

[4] The Applicant, however, disputes the Respondent's claim in regard to the debt amount allegedly owing by it to the Respondent. The Applicant avers as follows:

(a) The Respondent initially issued a letter of demand to the Applicant attaching payment Certificate No. 10 (Final) dated 9 March 2023 and demanding the sum of RM44,028,654.20 allegedly owing by the Applicant. The Applicant replied by a letter dated 3 April 2023 denying and disputing the amount allegedly owing.

(b) The Respondent thereafter issued a second letter of demand dated 16 May 2023, demanding a smaller amount of RM38,387,745.70. The Applicant replied on 30 May 2023 denying and disputing the alleged debt.

(c) Following its denial of the second demand, the Applicant via a letter to the Respondent dated 7 June 2023 requested copies of supporting documents to prove the amount claimed by the Respondent. However, the Respondent refused the Applicant's request for supporting documents. This is disputed by the Respondent. The Respondent alleged it gave the Applicant some documents, but as for the remaining documents, the Respondent alleged those documents ought to be in the Applicant's possession.

(d) On the same date, the Respondent issued a Statutory Notice under s 466 of the CA 2016.

(e) After receipt of the Statutory Notice, the Applicant requested via a letter dated 14 June 2023 an undertaking from the Respondent not to commence any winding-up proceedings against it.

(f) The Respondent, however, avers that upon receipt of the letter dated 14 June 2023 from the Applicant, the Respondent's solicitors contacted the Applicant's solicitors on a "without prejudice basis" to enquire if the Applicant would agree to meet and discuss settlement. However, the Applicant did not respond.

(g) The Applicant filed this application via a Notice of Motion ("NOM") and served the NOM to the Respondent on the same day.

General Principles On Fortuna Injunctions

[5] The general principles governing the granting of a Fortuna Injunction are well established and enunciated in the case of Mobikom Sdn Bhd v. Inmiss Communications Sdn Bhd ; 2007 MarsdenLR 2843 ; where the Court of Appeal held as follows:

"[4] There is no doubt that a Court has jurisdiction and power to grant an anti-suit injunction whenever the interests of justice call for or demand it. So, an injunction may be issued by our courts to restrain the institution or prosecution of a suit in a foreign jurisdiction where this would lead to a multiplicity of proceedings. See, Bsnc Leasing Sdn Bhd v. Sabah Shipyard Sdn Bhd & Ors & Another Appeal; [2000] 2 MLJ 70; [2000] 2 CLJ 197. Similarly, a party may be restrained from presenting a winding up petition if it is found, for example, that there is a bona fide dispute about the debt on which the notice of demand issued under s 218 of the Companies Act 1965 is based. See, Bina Satu Sdn Bhd v. Tan Construction ; 1988 MarsdenLR 824 ; [1998] 1 CLJ 384 .

[6] McGarvie J in the seminal case of Fortuna Holding Pte Ltd v. The Deputy Comm