(Enc. 280, 281, 299, 301, 302, 303, 304, 305, 326)

Background Fact to This Appeal

On 11th May 2006, Danaharta (the first three Plaintiffs in the original claim will hereinafter be referred to as 'the Plaintiffs') commenced the Original Action against Tan Sri Dato' Tajuddin Ramli (TR) to recover the sum of RM589,143,205.57. On 29th June 2006, TR filed his Defence and Counter-claim. On 13th July 2006, he filed his Amended Defence and Amended Counter-claim. On 20th October 2008, the Amended Defence and Counter-claim was further Amended but this amendment is the subject matter of further appeal. The original Counter-claim resulted in some 24 Defendants being included as parties to this action. The further amendment, if confirmed on appeal will result in another 14 Defendants being included as Defendants to the Counter-claim. All the Defendants deny the Counter-claim based on conspiracy. Not surprisingly therefore, most of the Defendants filed applications to have the Counter-claim against them struck out under O. 18 r. 19. One such application was by CIMB, the 12th Defendant. CIMB filed their application on 21st August 2006 (Enc. 71), only to have the same dismissed by the Senior Assistant Registrar on 5th March 2008. The appeal (Enc. 299) by them against this dismissal was fixed for hearing on 6th May 2008. However, a few days before the hearing of the appeal, TR filed Enc. 415 under O. 56 r. 1(3A) of the RHC to adduce fresh evidence at the hearing of Enc. 299. Enc. 415 was dismissed with costs. This was also the pattern of events as regards the remaining Defendants who filed applications to strike out the Counter-claim. The particulars of the parties and the corresponding Enclosure numbers of their respective appeals from the decision of the learned Registrar dismissing their applications to strike out the Counter-claim are set-out below:

No

Parties

ENC. No. of O. 18 r. 19 Appeal

1.

D1, D2, D3 (in Counter-claim)

Enc. 304

2.

D4, D5, D6 (in Counter-claim)

Enc. 326

3.

D8, D9 (In Counter-claim)

Enc. 280

4.

D10, D11 (in Counter-claim)

Enc. 281

5.

D12 (in Counter-claim)

Enc. 299

6.

D13 (in Counter-claim)

Enc. 301

7.

D14 (in Counter-claim)

Enc. 303

8.

D15 (in Counter-claim)

Enc. 302

9.

D16 (in Counter-claim)

Enc. 305

Background facts to TR's indebtedness

TR executed a facility agreement on 13th July 1994 to borrow RM1,792,000,000 (original loan) from a group of syndicated lenders. This original loan was undertaken in his own name to finance the purchase by him of a 32 % stake in the shares of Malaysia Airline System Berhad (MAS). The original loan is evidenced by this facility agreement, three memorandum of deposits and a charge over a cash deposit. By a supplemental agreement, the syndicated lenders and TR thereafter agreed to vary the terms and conditions of the facility agreement. At all material times from 1994 to 1998 TR failed to service the original loan causing it to become a Non Performing Loan (NPL) in the books of the lenders. In 1988, Danaharta acting pursuant to the powers under the Pengurusan Danaharta Nasional Bhd Act, 1988 ("the Danaharata Act") acquired TR's NPL from the Lenders, including all rights and securities under the Loan Agreement. After the acquisition, the Plaintiffs issued 3 Vesting Certificates causing to be vested in them the original loan and rights, title and interest in the assets secured to repay the original loan together with all the contracts.

From 1998 to 2001, TR failed to settle his indebtedness to Plaintiffs. On 8th October 2001, TR executed a Settlement Agreement with the Plaintiffs ("the Settlement Agreement), whereby TR admitted that he had been in default of the Original Loan, and that a sum of RM1,410,175,765.43 was due and owing by him to Plaintiffs as at 8th October 2001. (see recital D and clause 2.1 of the Settlement Agreement). Under the terms of the Settlement Agreement, the three Plaintiffs agreed to give TR a 'hair-cut' by discounting the sum of RM468,