Ian H.C. Chin J:

This an application by Chua Chun Eng ("Chua"), the 2nd defendant in the above-named suit, for various orders or judgments against two third parties, Kua Nam Kiang ("Kua") and Siau Fung Oi ("Siau") who are respectively the 4th and 5th defendants in the said suit. Chua by a summons in chambers taken out on 27

May 1994 asks for the following orders:

(1) that Kua and Siau indemnify him against the claim of Asia Commercial Finance (M) Berhad ("the plaintiffs") by paying to him for transmission to the plaintiffs the amount due under a judgment dated 3 August 1992 for RM4,497,538.41, interest and costs; and

(2) that Kua and Siau pay him the costs in defending the suit against the plaintiffs and the costs of this application.

The history and the undisputed facts of the matter herein have to be related.

Chua, Kua and Siau were all at one time fellow directors of Kaline Holdings Sdn. Bhd. ("the company"). The company borrowed from the plaintiffs and the loan was on 24 October 1988 guaranteed by Chua, Kua and Siau together with another director Lee Li Fong ("Lee"). On 14 April 1989 Chua entered into an agreement with Kua and Siau whereby he sold all his shares in the Company to Kua and Siau and one of the terms of the agreement is clause 8 which reads:

8. [Kua and Siau] shall hereby undertake with [Chua] that they will indemnify and keep [Chua] indemnified against all liabilities under whatever letters of guarantee signed by [Chua] as a director of the Company prior to this agreement and that [Chua] shall be released of all such guarantee from the date hereof.

The company could not repay the loan and the writ herein was on 11 March 1991 taken out by the plaintiffs against the company as the borrower and against Chua, Kua, Siau and Lee as guarantors to recover the debt due and this guarantee is the one referred to in clause 8 (supra). The writ against Chua was served on him on 14 February 1992. Chua and Lee, thereafter, on 24 March 1992, took out the third party notice against the company, Kua and Siau. On 8 April 1992, the Court ordered final judgment to be entered for the plaintiffs against the company, Kua and Siau. Chua and Lee on 10 April 1992 filed their defence against the claim of the plaintiffs.

On 20 April 1992, the plaintiffs took out an application for summary judgment against Chua and Lee and the Court on 3 August 1992 ordered judgment to be entered for the plaintiffs against Chua and Lee for the said sum, interest and costs.

The third party notice by Chua and Lee was only able to be served on Kua and Siau on 23 March 1994. On 14 April 1994, Chua and Lee took out a summons for third party directions and the pleadings were, inter alia, ordered to be delivered.

The parties then served their respective pleadings.

Chua's application for summary judgment against Kua and Siau, which was supported by his affidavit affirmed on 11 May 1994, was argued on 27 June 1994. Mr. Roland Cheng, Counsel for Kua and Siau, filed an affidavit on their behalf to oppose the application.

Since the existence of the agreement and the indemnity therein contained relied on by Chua to seek indemnity from Kua and Siau is not in dispute, I ask Mr. Roland Cheng to address the Court first as to why judgment should not be entered as prayed by Chua.

The first of the arguments canvassed by Mr. Roland Cheng is that the indemnity sued upon is also the subjectmatter of another suit, Suit No. T(22) - 84 of 1992, in which Chua is suing Kua and Siau, and there are "common areas of fact between the two cases and it would be in the interests of justice for the two cases to be consolidated and tried as one case". Mr. Roland Cheng argued that the Court should not deal with the application now. Mr. Ting E. Hang, Counsel for Chua, replied and said that the subject-matter of the claim in the other suit is not relevant to the present proceedings. The Suit No. T(22) - 84 of 1992 will have now to be adverted to. In that suit Chua claims ag