Atan Mustaffa Yussof Ahmad J:

(Enclosure 119 — Application To Amend Defence And Counterclaim)

Introduction

[1] Before the court is the defendants' Notice of Application dated 17 March 2025 (encl 119) filed pursuant to O 20 r 5 of the Rules of 2012 ("ROC"), seeking leave to amend the Defence and Counterclaim dated 9 May 2023 (encl 7). The Plaintiff in the Original Action and 1st Defendant in the Counterclaim is Kenanga Investors Berhad ("Kenanga"). The 1st Defendant in the Original Action and 1st Plaintiff in the Counterclaim is Zulrafq Capital Sdn Bhd ("Zulrafq"). The 2nd Defendant in the Original Action and 2nd Plaintiff in the Counterclaim is Tan Sri Zulhasnan bin Rafique ("TSZ"). The 2nd Defendant in the Counterclaim is Muhammad Taqiuddin Halim ("Taqiuddin") and the 3rd Defendant in the Counterclaim is Datuk Wira Ismitz Matthew ("Ismitz").

[2] The proposed amendments are set out in Lampiran A to the Affidavit in Support dated 17 March 2025 (encl 120). The application was strenuously opposed by Kenanga, Taqiuddin, and Ismitz, who filed comprehensive written submissions, affidavits in opposition, and presented oral submissions. This application was heard together with similar amendment applications in two related suits, namely WA-22NCC-141-03/2023 ("Suit 141") [Kenanga Investors Berhad v. Zulrafq Capital Sdn Bhd & Anor] and WA-22NCC-489-07/2023 ("Suit 489")], as the issues raised are common to all three suits.

[3] Having carefully considered the affidavit evidence, the written and oral submissions of all parties, the authorities cited, and the overall circumstances of this case, I dismiss the defendants' application with costs. These are my reasons.

Background Facts

[4] Kenanga is a company registered under the Companies Act 1965. Zulrafq is a company registered under the same while TSZ is a Malaysian citizen and is a major shareholder of Zulrafq. Taqiuddin and Ismitz are both Malaysian citizens.

[5] On 19 January 2022, a Put and Call Option Agreement was executed between Kenanga and Zulrafq. The same day, a Personal Guarantee dated 19 January 2022 was executed by TSZ in favour of Kenanga.

[6] Under the Put and Call Option Agreement dated 19 January 2022 ("the Option Agreement"), Zulrafq granted Kenanga an irrevocable Put Option for Kenanga to sell to Zulrafq RM35,000,000.00 worth of ordinary shares in KNM Group Berhad amounting to 179,132,800 shares ("Option Shares") during the Put Option Period. The Transaction Date was 23 February 2022 and the Maturity Date was 22 November 2022.

[7] By notice dated 2 November 2022, Kenanga exercised the Put Option pursuant to cl 2.2 of the Option Agreement whereupon Zulrafq was obligated to purchase all the Option Shares at RM34,214,364.80 on or before the Maturity Date.

[8] Zulrafq failed to purchase the Option Shares by the Maturity Date. On 19 January 2023, Kenanga issued a letter of demand to both Zulrafq and TSZ via its solicitors, demanding payment of RM34,214,364.80.

[9] On 20 March 2023, Kenanga filed the present action against Zulrafq and TSZ seeking specific performance or damages for breach of the Option Agreement.

[10] On 9 May 2023, Zulrafq and TSZ filed their Defence and Counterclaim (encl 7), joining Taqiuddin and Ismitz as defendants to the counterclaim. The counterclaim alleged, inter alia, that the transaction was a structured scheme or conspiracy between Kenanga, Taqiuddin and Ismitz to injure and defraud Zulrafq and TSZ.

[11] On 13 June 2023, Kenanga filed a Summary Judgment application against Zulrafq and TSZ. On 22 November 2023, summary judgment was entered by Kenanga against Zulrafq and TSZ in respect of the main action.

[12] On 9 December 2023, Zulrafq and TSZ filed an application to stay the execution of the said summary judgment. On 13 March 2024, this application for a stay of execution was dismissed by this court.

[13] On 14 May 2024, Zulrafq and TSZ filed a Discovery Application (encl 134) and an Interrogatory Application (encl 39) in Suit 489. On 23 September 2024, b