Vincent Ng J:

Before the case commenced I felt that there were several apparent issues of procedure that needed to be settled. Firstly, to the question from the court on the procedure employed by the plaintiff, the defendants - quite rightly I must observe - conceded that as the determination of the case primarily involves construction of a document (to wit the settlement agreement) the plaintiff had appropriately proceeded under originating summons. Secondly, when the court indicated that in order to obviate double hearings, appeals, judgments and bites at the proverbial cherry, I was ready and minded to proceed straight to hear the originating summons, subject of course to the consent of both parties, in view of O. 38 r. 2(3) of the RHC (pertaining to right to apply to cross-examine the deponents of affidavits) both parties insisted on the court hearing the summons in chambers first. And so, as agreed, the proceedings proceeded in such manner.

For ease of reading I would propose to divide my judgment into three parts, namely, the facts, the merits of the plaintiff's injunction application, and lastly, the validity or legal integrity and construction of s. 72 of the Pengurusan Danaharta Nasional Berhad Act 1998 (the Act) and the Act itself.

The Facts

By a facility agreement dated 13 July 1994 ("the facility agreement") entered into between the plaintiff and various financial institutions, the plaintiff was granted a syndicated term loan facility in the sum of RM1,792,000,000 ("the loan") for the purpose of his acquisition from Bank Negara Malaysia of a 32% stake in the shares of Malaysian Airline System Bhd. By a supplemental facility agreement dated 27 February 1998, the plaintiff entered into a second agreement with the same financial institutions relating to the loan.

The plaintiff was in default of his loan with the said financial institutions. In consequence, the defendants acting in accordance with their stated objectives acquired the plaintiff's non-performing loans and the securities thereto from the said financial institutions. Such acquisitions were by way of three statutory vestings under the Danaharta Act. And, three vesting certificates were issued in respect of the:

(i)1st defendant's acquisition of the plaintiff's non-performing loan of RM380 million as at 27 April 1999 from syndicate lenders - RHB Sakura Merchant Bankers Berhad, Arab-Malaysian Merchant Bank Berhad and RHB Bank Berhad;

(ii)2nd defendant's acquisition of the plaintiff's non-performing loan of RM418.84 million as at 31 December 1998 from Bank Bumiputra (Malaysia) Berhad; and

(iii)3rd defendant's acquisition of the plaintiff's non-performing loan of RM295.18 million as at 30 September 1998 from Sime Bank Berhad.

After the acquisition of the loans by the defendants, the defendants pursued a loan restructuring strategy with the plaintiff of its indebtedness, which by 31 January 2001 stood at RM1,315,938,556. The principal terms of the defendants' offer of restructuring were that:

(a)the plaintiff repay a reduced amount of RM942,000,000 ("the settlement sum"); a discount of RM373,938,556 provided the plaintiff met his obligations;

(b)interest was to be paid quarterly at the fixed rate of 8.5% per annum; and

(c) an upfront payment of RM300 million was to be payable by the plaintiff by 31 December 2001, or upon an identified event.

The plaintiff sought to extend the time of the upfront payment of RM300 million from 31 December 2001 to 30 June 2002. Subject to proof of funding of this upfront payment, the defendants were agreeable to an extension to 30 June 2002. According to the defendants, interest remained due and owing on a quarterly basis.

The settlement agreement ("the settlement agreement") was executed on 8 October 2001 ("the settlement date"). The principal terms of the settlement agreement are that:

(a)the total outstanding of RM1,410,000,000 due and payable by the plaintiff to the defendants as at 8 October 2001 be reduced (by RM468,