The court held that agreements must be interpreted collectively, and failure to issue a notice for specific performance renders the claim unenforceable, while the guarantor is liable for admitted debts.

JUDGMENT

Mohd Arief Emran Arifin J:

A. Introduction

[1] The Plaintiff seeks judgment against the First Defendant pursuant to the terms of the Option Agreement dated 16 June 2021 and against the Second Defendant pursuant to the Personal Guarantees executed by the Second Defendants.

B. Facts

[2] The Plaintiff had executed an Option Agreement and a Term Sheet both dated 2 June 2020.

[3] Material terms of the Option Agreement dated 2 June 2020 ("Option 1") are as follows:

(a) Plaintiff granted the First Defendant the right to buy back shares held by the Plaintiff in Impiana Hotels Berhad to the amount of 61,000,000 ordinary shares at the price of RM0.085 per share.

(b) If the Plaintiff finds that the First Defendant fails to buy the said shares back at the agreed expiration date, the First Defendant may be required to purchase the said shares by giving a notice in writing to the First Defendant for the price of RM0.085 per share.

(c) It was also agreed that the Plaintiff will be entitled to claim marketing and handling fees to be paid by the First Defendant.

[4] Material terms of the Term Sheet dated 2 June 2020 ("Term Sheet 1") are as follows:

4.1 The term sheet is a binding agreement between the First Defendant, Second Defendant and the Plaintiff.

4.2 The Second Defendant is stated to be the guarantor of the obligations of the First Defendant to the Plaintiff not only the earlier referred Option Agreement but also all of the obligations and debts due and payable by the First Defendant to the Plaintiff.

4.3 The Plaintiff is given the right to force the First Defendant to purchase the above-mentioned shares at the put option price of RM0.085 per share.

4.4 The mechanism of Term sheet is explained in cl 15:

(i) Total value of option shares - RM5,185,000 which is made up of RM4,501, 800 + the agreed returns of RM337,635.00.

(ii) If the First Defendant pays for the said shares then the Plaintiff shall refund the sum of RM345,565.00 to the First Defendant.

[5] The material terms of the Personal Guarantee dated 3 June 2020 ("Personal Guarantee 1") are as follows:

Clause 1

Irrevocably and unconditionally guarantee to you as a continuing obligation the due performance by the party whose name, address and particulars are set out in Part One of the Schedule hereto ("ISB") of its obligations arising under the Transaction (as described under Part Two of the Schedule) and accordingly, I irrevocably and unconditionally undertake and agree to pay you on demand any and all monies now or at any time hereafter which has or will become due and payable or owing to you by ISB together with any and all other monies outstanding to you (hereinafter referred to as the "Guaranteed Amount") and ensure the due performance of any and all obligations and liabilities whatsoever at any time undertaken or incurred by ISB to you under the terms of the Transaction or otherwise, to indemnify you and to keep you indemnified from and against (direct and indirect) any and all losses, damages, expenses, claims, costs (including solicitors' costs) and demands of whatever nature which you may incur or sustain, arising from the non-performance or breach by ISB of any of its obligations under the Transaction.

Clause 4

Without affecting ISB's obligations, I do extend my/liability, and shall be irrevocably and unconditionally liable to you under this clause as if I was the principal debtor and not merely as a surety and accordingly I shall not be discharged, nor shall my liability be affected in anyway whatsoever. by anything which would discharge me or affect my liability if I was the principal debtor, including without Limitation:

(a) any obligation or purported obligation of ISB under or arising out of any of the Transaction being or becoming wholly or in part invalid or unenforceable against ISB by reason of any defect in my insufficiency or want of powers of ISB or irregular or improper purported exercise thereof or breach of authority by any person purporting to act for and on behalf of ISB