The court affirmed that no notice was required for the sale of charged shares, and the Plaintiff failed to prove claims of breach of contract and undervaluation.

JUDGMENT

Azmi Ariffin JCA:

Introduction

[1] There are two (2) separate Notices of Appeal filed before this Honourable Court for us to decide. They are as follows:

COA: W-02(IM)(NCC)-441-03/2022

HC: WA-22NCC-295-07/2021

Appeal against the decision of the High Court delivered on 18 February 2022 dismissing the Appellant's application dated 27 December 2021 in encl 194 (Suit 295), for summary disposal pursuant to O 14A and/or O 33 r 2 of the Rules of 2012 with costs of RM30,000.00 to be paid to the 1st Respondent (with 2nd Respondent), 3rd Respondent and 4th Respondent respectively.

COA: W02(NCC)(W)-511-03/2023

HC: WA-22NCC-295-07/2021

Appeal against the decision of the High Court delivered on 24 March 2023 dismissing the Appellant's claim (after full trial) in encl 1 with costs of RM80,000.00 to be paid to 1st Respondent (with 2nd Respondent), 3rd Respondent and 4th Respondent respectively.

[2] To facilitate the determination of these two (2) appeals, we find it more convenient to combine and decide both the appeals in a single judgment as they are interrelated.

[3] For ease of reference, the parties will be referred to as Plaintiff and 1st, 2nd, 3rd, 4th and 5th Defendants as they were in the High Court .

Chronology Of Events

[4] We shall now briefly lay out the background facts leading to the filing of the claim.

[5] The Plaintiff is a foreign company incorporated in the Republic of Seychelles, having its registered address at Abacus (Seychelles) Limited, Mont Fleuri, Mahe, Seychelles and carries on the business of investment holdings and land development.

[6] The Plaintiff previously held 66.67% of the ordinary shares in 5th Defendant, a public listed company.

[7] On or about 20 April 2008, the Plaintiff and the 1st Defendant entered into a Murabaha Facility Agreement whereby a loan of USD83,000,000.00 was granted by the 1st Defendant to the Plaintiff.

[8] The other party to the Facility Agreement was Shamil Bank of Bahrain BSC, which merged with and formed Ithmaar Bank, now known as Ithmaar Bank BSC, the 2nd Defendant around 2016.

[9] The loan facility was secured by:

(a) share charge dated 20 April 2008 and a charge supplement dated 28 October 2015 of the Plaintiff's 64.99% shares or equivalent to 148,651,497 of the Plaintiff's shares. The charge was in favour of the 1st Defendant; and

(b) a personal guarantee executed by Tan Sri Mohan Swami, the sole shareholder in Plaintiff until June 2021.

[10] The Facility was to finance Plaintiff's voluntary take-over offer of 5th Defendant and Chase Perdana Berhad.

[11] The Plaintiff and Tan Sri Mohan Swami, however failed to fully repay the outstanding sums of USD99,960,000.00 owed to the 1st Defendant under the Facility Agreement and or the Guarantee as of 15 April 2009, and were in breach of the Facility Agreement, Share Charges and or the Guarantee.

[12] As a result of the default, on 15 April 2010, the 1st Defendant commenced a civil suit in London against the Plaintiff and the guarantor for the outstanding sums due and owing under the Facility Agreement ('UK Suit').

[13] On 5 June 2010, a Settlement Agreement was entered between 1st Defendant, Plaintiff and Tan Sri Mohan Swami whereby Plaintiff and Tan Sri Mohan Swami acknowledged the outstanding sum of USD65,222,911.42 and USD16,075,949.00 and agreed to pay the same fully by 2010 with late payment, compensation charges and costs up to USD150,000.00. The Settlement Agreement also provides for judgment to be entered in the English Commercial Court ('UK Judgment').

[14] On 7 June 2010 a default judgment was accordingly entered by 1st Defendant in the English Commercial Court against the Plaintiff and Tan Sri Mohan Swami for the sum of USD65,225,120.40 with judgment interest of 8% per annum until date of full payment.

[15] Due to their failure to comply with the UK Judgment, the 1st Defendant had on 24 November 2010 registered the UK Judgment at the High Court of Malaya at Kuala Lumpur.

[16] Unfortunately, Plaintiff and Tan Sri Mohan Swami fail