Abdul Malik Ishak J:

Introduction

By way of encl. 29, the plaintiff sought for the following orders:

(a) that an interlocutory injunction be given against the defendant until the conclusion of this action in court or, in the alternative, until the disposal of the arbitration proceedings to restrain the defendant personally and/or its representatives and/or its agents and/or its workers from receiving any payment from Standard Chartered Bank Malaysia Bhd and/or its representatives and/or its agents and/or its workers under performance bond no. 300020128832 dated 7th September 1996.

(b)that a return date be fixed by this Honourable Court on the 28th day of August 1998.

(c)that the costs of this application be costs in the cause.

(d)any other relief that this Honourable Court deems fit and proper to award.

and it was supported by an affidavit of Hiew Yet Kuei ("Hiew") that was affirmed on 15 August 1998 as seen in encl. 28; while Loh Lim Fa ("Loh") affirmed an affidavit in reply for the defendant on 24 August 1998 as reflected in encl. 32.

Facts

I shall refer to the two affidavits in encls. 28 and 32 in order to galvanise the facts. Before I begin, it would be appropriate to state that the plaintiff has filed its writ and the statement of claim as seen in encl. 2. The parties agreed that the statement of defence would be filed at a later stage.

Hiew's affidavit revealed the following salient facts. By way of a written contract dated 26 March 1997 that was entered into between the plaintiff and the defendant (hereinafter referred to as the "contract"), the defendant appointed the plaintiff as a contractor for the execution and completion of the scope of works known as "Earthworks, Sheet Piling and Soldier Piling, Spun Piling, Pile Caps and Substructure Works for Proposed Commercial cum Hotel Development at Lot 346, Jalan Lombong, Kota Tinggi, Johor Bahru, Malaysia" (hereinafter referred to as the "works") for a contract sum of RM2,557,027.90 or such other sum as shall become payable at the times and in the manner specified in the conditions of the contract. The contract was entirely modelled on the Standard Pam Form of Building Contract, Private Edition (With Quantities) together with the amplification notes, amendments, modifications and supplementary clauses (hereinafter referred to as the "contract documents"). The architect for the works was none other than akitek Detco while the engineer and the superintending officer for the works was Zainal Abidin jurutera perunding. The quantity surveyor for the works was a company known as KBC Quantity Surveyors Sdn Bhd.

The plaintiff had dutifully executed and completed the works under the contract and in due course the certificate of practical completion was issued on 28 August 1997 by the settlement officer certifying that the date of practical completion for the works was supposed to be on 14 August 1997. The defect liability period under the contract commenced on 28 August 1997 and it was scheduled to expire on 14 August 1998 - a period of time that spanned almost to 12 months. The total final contract sum which included variation for the works was valued by the quantity surveyor and certified by the settlement officer as RM3,111,254.17 (hereinafter referred to as the "final contract sum"). It must be borne in mind that the defendant was a good paymaster and had paid the plaintiff a total sum of RM2,656,211.80 under interim valuation certificates numbers one to nine which were valued by the quantity surveyor and duly certified and recommended by the superintending officer.

By letter dated 11 September 1997 addressed to the superintending officer, the quantity surveyor forthwith issued the interim valuation certificate number ten which valued the amount that was due from the defendant to the plaintiff at RM391,116.67. The superintending officer by letter dated 12 September 1997 certified and enclosed the interim valuation certificate number ten to the defendant for payment of