A Fortuna Injunction can be granted to restrain a winding-up petition if there exists a bona fide dispute regarding the debt, thereby preventing irreparable damage to the company's reputation.

JUDGMENT

(Enclosures 1 And 8)

Wan Muhammad Amin Wan Yahya JC:

[1] This was the Plaintiff's application by way of Originating Summons dated 11 March 2021 (encl 1) to essentially restrain the Defendants from presenting a Winding Up Petition ("this Originating Summons"). The reliefs sought in this Application are, inter alia, as follows:

"(1) A declaration that the Defendants' demand against the Plaintiff by way of the Statutory Notice issued under ss 465 and 466 of the Companies Act 2016 dated 23 September 2020 for a claim amounting to RM6,579,806.74 ("Statutory Notice") is null and void;

(2) The Defendants, whether by themselves or by their servants, agents, nominees or otherwise be restrained from acting upon the Statutory Notice including but not limited to filing and/or presenting a winding- up petition against the Plaintiff pursuant to ss 465 and 466 of the Companies Act 2016 based on the said Statutory Notice;"

[2] By way of Notice of Application dated 15 March 2021 (encl 8) the Plaintiff had also applied for an interim ex parte injunction along the terms of prayer 2 of this Originating Summons pending the disposal of the same.

[3] I granted encl 8 on an ex parte basis and later on an inter partes ad interim basis to maintain the status quo of the matter while parties filed their respective affidavits and written submissions.

[4] This Originating Summons and encl 8 were heard and decided together. I allowed both this Originating Summons and encl 8 and I set out below the reasons for my decision.

Salient Background Facts

[5] By way of a Letter of Award dated 6 April 2016 ("LOA"), the Defendants were awarded with the package work for Utilities, Interconnecting, Offsite (UIO) Facilities: Procurement, Construction & Commissioning (PCC) of Underground Pressurized Non-Metallic Piping - Firewater Network East Side (Package 14-0701) by the Plaintiff. The Defendants were engaged to perform procurement, construction and commissioning of the Underground Pressurized Non-Metallic Piping Underwater Network Eastside ("Package Work") and the value of the contract awarded to the Defendants as reflected therein is for the sum of RM84,148,028.00 ("Contract Price").

[6] The LOA is to be read with, inter alia, the following documents:

i) Part I - Form of Agreement;

ii) Part II - Special Conditions; and

iii) Part III - Conditions of Contract and Annexures

(collectively "the Contract").

[7] Arising from disputes between parties in relation to the Contract, on 13 September 2019 the Defendants commenced an action at the Kuala Lumpur High Court, suit number WA-22C-72-09/2019 ("Suit 72") wherein the Defendants claimed for, inter alia, the total sum of RM42,696,538.56 which sum includes the amount of RM6,579,806.74 pursuant to Progress Claim No 9 of the Contract.

[8] Following an application by of the Plaintiff herein, on 19 June 2020 the High Court in Suit 72 granted a stay of further proceedings of Suit 72 pending reference of the dispute to arbitration ("Stay Order").

[9] Apart from Suit 72, the Plaintiff had issued a Notice of Arbitration dated 7 November 2019 to the Defendants herein claiming for a sum of RM85,203,274.96. The arbitration between the Plaintiff and the Defendants are still pending ("Arbitral Proceeding") and in so far as the Plaintiff's claims against the 1st Defendant are concerned, it could not be proceeded with due to the Restraining Order dated 15 February 2021 ("RO") granted by the Kuala Lumpur High Court in suit number: WA- 24NCC-168-05/2020 ("RO Suit"). The RO arises from the 1st Defendant's application for a proposed Scheme of Arrangement under s 366 of the Companies Act 2016 .

[10] On 23 September 2020, the Defendants, through their solicitors, issued a payment claim pursuant to s 5 of the Construction Industry Payment and Adjudication Act 2012 ("CIPAA") ("CIPAA Payment Claim") where the same sum of RM6,579,806.74 being the alleged payment to be made under Progress Claim No 9 was claimed therein along with the alleged payment to be