The principle of res judicata applies broadly, preventing re-litigation of issues that could have been raised in prior proceedings, thereby ensuring finality in litigation.

Ong Chee Kwan J:

(Enclosures 13 And 18 - Striking Out Applications)

Introduction

[1] This judgment deals with the application of the principle of res judicata in the wider sense.

Background Facts

[2] Khas Cergas Sdn Bhd ('KCSB') is a company incorporated in Malaysia on 17 February 1996, operating as an educational institution.

[3] KCSB had obtained various Syariah based financing facilities from the 3rd Defendant. The total sum granted under the said financing facilities was RM18,050,000.00.

[4] By way of a letter of offer dated 9 March 2017, the 3rd Defendant had granted additional financing facilities to KCSB in the sum of RM6,400,000.00.

[5] In connection to the aforesaid financing facilities, KCSB provided amongst others a debenture dated 23 September 2014 as security where KCSB had charged to the 3rd Defendant "by way of a first fixed and floating charge of the Customer's present and future assets including assets which are being financed by SME Bank under the Facilities" ('the Debenture').

[6] The assets under the Debenture included a three (3) adjoining terrace lots improved with a 8-storey office building with a basement ('Wisma Victoria') and a 4 ½storey terraced shop office with a basement level ('Jalan Murai Dua Property') (collectively referred as 'the Debenture Assets').

[7] On 4 September 2019, the 3rd Defendant's solicitors at that material time, issued a Notice of Demand and Termination ('Notice of Demand and Termination') to KCSB which expressly provided that in breach of the terms of the financing facilities granted by the 3rd Defendant to KCSB, KCSB had failed and or refused and or omitted to make repayments thereunder. As at 20 August 2018, the total outstanding amounts due and owing under the said financing facilities was RM1,763,295.42 and since KCSB had failed to settle the said amount, the facilities had been terminated and the total amount due and owing thereunder was RM40,447,604.32.

[8] Following from an action commenced by the 3rd Defendant against KCSB, on 20 November 2019, the High Court of Malaya in Kuala Lumpur (Suit No WA-22M-869-10/2019) ('Suit 869') entered a Judgment in Default of Appearance ('Judgment') against KCSB. Pursuant to the Judgment, KCSB was ordered to pay, inter alia, the sum of RM40,450,717.53 owing as at 17 October 2019 to the 3rd Defendant (as the plaintiff in Suit 869).

[9] On 31 December 2021, the 3rd Defendant appointed the Adam Primus Vargehese Bin Abdullah (I/C No: 550131-08-5849) ('Adam') as the Receiver and Manager of all the assets and undertakings of KCSB pursuant to the Debenture.

[10] The Plaintiff disputed Adam's appointment as well as the 3rd Defendant's right to appoint a Receiver and Manager and filed an Originating Summons No: WA-24NCC-107-02/2022 ('OS 107') at the Kuala Lumpur High Court to challenge the validity of the appointment. The Plaintiff's application through the said OS was dismissed by the High Court with costs on 9 August 2022.?

[11] The Plaintiff has filed a Notice of Appeal dated 17 August 2022 to the Court of Appeal vide Appeal No.: W-02(NCC)(A)-1556-08/2022 ('Appeal 1556') against the aforesaid decision. The hearing for the Appeal 1556 has now been fixed on 3 August 2023.

[12] The 3rd Defendant subsequently appointed the 1st Defendant and the 2nd Defendant via a letter of appointment dated 14 September 2022 in tandem with Adam's withdrawal on 14 September 2022 through a Notice of Resignation in accordance with s 379(1) of the Companies Act 2016 .

[13] On 20 October 2022, the Plaintiff has filed another Originating Summon in the Kuala Lumpur High Court vide OS No WA-24NCC-957- 10/2022 ('OS 957') where once again the Plaintiff challenged the 3rd Defendant's right to appoint Receiver