JUDGMENT

Abdul Malik Ishak J:

Enclosure 9

By way of encl. 9, the intervenor sought for the following prayers:

(1) that leave be granted to Sogelease Advance (Malaysia) Sdn Bhd, the proposed Intervenor to intervene in these proceedings;

(2) that the Applicants do serve the Proposed Intervenor with copies of all proceedings and other cause papers filed herein;

(3) that the meetings of the Scheme Creditors fixed for 28 May 2004 be postponed until the final disposal of this Summons in Chambers;

(4) that the ex parte order dated 28 April 2004 and the Composite Scheme be set aside;

(5) in the alternative, that the Proposed Intervenor be excluded from the Composite Scheme as a Scheme Creditor;

(6) costs;

(7) liberty to apply;

(8) such further or other reliefs as this Honourable Court deems fit.

The parties have consented to prayers (1) and (2) of encl. 9 on 18 May 2004 and I have nothing further to say to that. Prayer (3) of encl. 9 for a deferral of the court convened meeting fixed for 28 May 2004 has become irrelevant and academic because this court has decided to deliver its decision in regard to prayers (4), (5), (6) and (7) on 27 May 2004 and that would be one day before the date of the court convened meeting. In the circumstances, only prayers (4), (5), (6) and (7) of encl. 9 will be addressed in this judgment. Out of these four prayers, it would seem that prayers (4) and (5) form the primary objects of encl. 9. It would be pertinent to state that both prayers (4) and (5) of encl. 9 were phrased and framed in the alternative.

Facts Of The Case

The intervenor has obtained judgment against the second applicant and DRB-HICOM Berhad (hereinafter referred to as "DRB") on 10 December 2001 for the sum of RM13,566,786.31 as at 10 February 2000 with continuing interest until paymentvide Kuala Lumpur High Court Civil Suit No: D1-22-886-2000 (hereinafter referred to as the "main suit") in relation to the hire purchase facilities granted to the second applicant and guaranteed by DRB. The amount outstanding under the judgment as at 30 April 2004 was RM18,106,488.35. The appeal by the second applicant and DRB against the judgment was dismissed by the judge on 21 January 2003. The second applicant and DRB have since filed an appeal to the Court of Appeal against the decision of the judge. The second applicant and DRB have since filed an application to stay execution of the judgment in the main suit (hereinafter referred to as the "stay proceedings") pending their appeal to the Court of Appeal and pending a proposed s. 176 scheme proposed by the second applicant. In tangent and simultaneously with the stay proceedings, the second applicant and DRB also filed an originating summons no: D1-24-93-2003 (hereinafter referred to as the "injunction proceedings") to restrain the intervenor from commencing winding-up proceedings to enforce the judgment pending their appeal to the Court of Appeal and pending a proposed s. 176 scheme by the second applicant. The reason why the second applicant and DRB took out the injunction proceedings as well as the stay proceedings was because an order for stay of execution proceedings would not cover winding up proceedings whereas an injunction would. The second applicant and DRB wanted to prevent the intervenor from commencing winding-up proceedings against them.

Both the stay proceedings and injunction proceedings were heard together and on 27 April 2004 the judge gave similar orders in respect of both matters. The terms of both the orders provide for the second applicant and DRB to pay the sum of RM17 million (being the judgment sum as at 30 June 2003) into the parties' solicitors' joint account by 31 May 2004 and that in the event the amount was not paid, both the orders for an injunction and the stay would be discharged. As of to date, the said sum has not been paid.

Together with the stay proceedings and the injunction proceedings, the second applicant had further obtained a restraining order on 21 June 2003 (hereinafter refer