Jamhirah Ali JC:

GROUNDS OF JUDGEMENT

INTRODUCTION

[1]In this case the 1^st and 2^nd Defendants filed an application to strike out the Plaintiffs Writ and Amended Statement of Case dated 02.09.2021 under Order 18 rule 19(1) (a), (b) or (d) of the Rules of Court 2012 and under the inherent jurisdiction of the Court in enclosure 19 and the 3^rd Defendant filed an application in enclosure 29 to strike out the Plaintiffs Writ and Amended Statement of Claim under Order 18 rule 19(a), (b), (c) and/or (d) and/or Order 92 Rule 4 of the Rules of Court 2012. Both the applications are now collectively referred to as the Applications.

BACKGROUND FACTS

[2]The Plaintiffs are the directors and shareholders of the 1^st Defendant which is under receivership.

[3]The 1^st Defendant was granted banking facilities by Bank Pertanian Malaysia Berhad (Agrobank) in 2014 which was secured inter alia by debentures and charges created in favour of Agrobank as follows:

a.debentures both dated 30.06.2014, creating a fixed and floating charge over all the assets of the 1^st Defendant;

b.charges over the 1^st Defendants land held under Title No. PN 293511 (formerly known as HSD 6480) Lot No. 7880, Mukim of Asam Kumbang, District of Larut & Matang, State of Perak (the said Land), which were registered vide Charge Presentation No.30195/2014 and 30196/2014 on 07.07.2014.

[4]As the 1^st Defendant defaulted in the repayment of the banking facilities for the amount of RM18,000,000.00, on 09.10.2018, Agrobank appointed two Receivers and Managers (R & M) and subsequently, the 2^nd Defendant was the sole R & M of the 1^st Defendant till to date.

[5]Thereafter, the 1^st Defendant acting by and through the R & M (the 2^nd Defendant) conducted three (3) tender exercises to sell the said Land and the plant and machinery thereon (the Land and Assets). Each of the tender exercises was advertised in at least four (4) or more newspapers, which included Berita Harian, The Edge Malaysia, The Star, Sin Chew Daily and The Borneo Post.

[6]The first two tender exercises were not successful. The third tender exercise was carried out vide the Memorandum of Sale dated 15.07.2019. Pursuant to that, on 13.08.2019, one 5V Trading & Services (Tenderer) made an offer to purchase the said Land and Assets at a total price of RM13,000,000.00. The Tenderers offer was accepted by the R & M. Vide letter dated 19.12.2019, the Tenderer nominated the 3^rd Defendant, Berkat Oil Palm Sdn. Bhd. to complete the purchase of the said Land and Assets and the nomination was accepted with an undertaking that the Tenderer shall complete the sale if the 3^rd Defendant fails to do so.

[7]Subsequently, on 13.01.2020, the 1^st Defendant acting by and through the R & M entered into a Sale and Purchase Agreement (SPA) and Assets Sale Agreement (ASA) both dated 13.10.2020 with the 3^rd Defendant for the sale of the said Land and Assets at a total price of RM13,000,000.00. Thereafter, the 3^rd Defendant had paid the full purchase price and all transfer documents were duly executed, including the Discharge of Charge which had been executed by Agrobank. All documents were in order save for the registration of transfer of the said Land.

[8]The 3^rd Defendant was unable to present the transfer documents for registration at the land office due to the lodgement of a 3^rd party caveat on the said Land registered under Presentation No. 3011/2021. The R & Ms solicitors were informed by the 3^rd Defendants solicitors vide letter dated 25.3.2021 that if the transfer documents are not submitted to the land office before 02.04.2021, there would be a penalty of RM22,320.00 imposed by the land office, which the 3^rd Defendant shall not be responsible because the said Land and Assets are supposed to be sold free from encumbrances.

[9]The said private caveat was lodged by the 1^st Plaintiff on 12.03.2021 in his capacity as the shareholder of the 1^st Defendant. The 1^st Plaintiff had affirmed in his statutory declaration filed in support of the lodgement of the private