A claim challenging a summary judgment and related proceedings can be struck out as frivolous if it fails to establish a reasonable cause of action and is deemed an attempt to relitigate settled matters.

JUDGMENT

Atan Mustaffa Yussof Ahmad JC:

[1] This judgment concerns the application of the Defendant, Ambank Islamic Berhad, in encl 18 pursuant to O 18 r 19(1) Rules of 2012 (" ROC 2012") against the Plaintiff, Prolink Marketing Sdn Bhd, to strike out a writ action filed by the Plaintiff against the Defendant in this suit. The writ action arose from Islamic financing facilities that were also the subject matter of a previous suit between the Plaintiff and the Defendant, where summary judgment was given in favour of the Defendant who was the plaintiff in the previous suit.

Background Facts

[2] The Plaintiff is a customer of the Defendant, an Islamic Bank, which granted the Plaintiff Islamic banking financing facilities for the total sum of RM53,700,00.00 ("the Financing Facilities") subject to the terms and conditions under the Letters of Offers and Facility Agreements that had been executed and agreed by the Plaintiff. The Financing Facilities comprised Multi-Trade Facility-i (1): Islamic Bankers Acceptance - (1) ("MTF- i (1) Facility"), Multi- Trade Facility-i (2): Islamic Bankers Acceptance - (2) ("MTF- i (2) Facility"), Term Financing-i ("TF-i Facility") and Complementary Term Financing-i ("CTF-i Facility").

[3] The Financing Facilities were documented by:

a) Letter of Offer dated 18 July 2016;

b) Facility Agreement dated 27 July 2016:

c) Letter of Offer dated 17 March 2017;

d) Facilities Agreement dated 25 April 20217;

e) Letter of Offer dated 19 October 2016; and

f) Letter of Offer dated 20 August 2018.

[4] The security for the Financing Facilities included legal charges created in respect of 8 lots of industrial lands belonging to the Plaintiff in favour of the Defendant ("the Charged Properties") and guarantees executed by the directors of the Plaintiff.

[5] The Plaintiff failed to pay the amount outstanding under the Financing Facilities as agreed. Following the Plaintiff's continuing default, the Defendant recalled and terminated the Financing Facilities. Subsequently, the Defendant commenced and filed a suit against the Plaintiff and the guarantors at the Kuala Lumpur High Court in Suit No: WA-22M-253-04/2019 ("Suit 253") for recovery of the amount outstanding under the Financing Facilities.

[6] Proceedings pursuant to the National Land Code to foreclose the Charged Properties were commenced by the Plaintiff in Shah Alam High Court Originating Summons No: BA-24FC-781-07/2019 & No: BA-24FC-782-07/2019 and Shah Alam High Court Execution Proceedings No BA-38-168-02/2020 & BA-38-167-02/2020 ("the Foreclosure Proceedings").

[7] Pursuant to the Defendant's summary judgment application, judgment was obtained by the Defendant against the Plaintiff and the guarantors on 21 October 2019 ("the Judgment"). The Judgment was entered for a total sum of RM38,952,779.12 together with late payment charges ("the Judgment Sum"). A breakdown of the Judgment Sum is as follows:

[8] The Defendant obtained 2 Orders for Sale in the Foreclosure Proceedings on 16 January 2020 ("the Orders for Sale").

[9] There was no appeal filed by the Plaintiff against the Judgment and the Defendant subsequently issued a notice dated 7 November 2019 pursuant to s 465(1)(e) and 466(1)(a) of the Companies Act 2016 to demand for the Judgment Sum. The Plaintiff did not comply with the statutory notice and the Defendant filed a winding up petition against the Plaintiff at the Kuala Lumpur High Court in Companies Winding Up No: WA-28NCC-1299-12/2019.

[10] The petition was heard and disposed of on 5 August 2020. The Winding Up Court ordered the Plaintiff to pay the full sum demanded by the Defendant within 5 months, ie, on or before 5 January 2021, failing which, the Plaintiff shall be wound up immediately on 5 January 2021.

[11] The Plaintiff then sent the Defendant a letter dated 2 September 2020 requesting a redemption statement of the Charged Properties, stating also that it has received an intent to purchase the Charged Properties from an interested party. Upon the Plaintiff'