JUDGMENT

Prasad Sandosham Abraham JC:

[1] I disposed of the plaintiff's application in encl. 3 and granted an order in terms, restraining the defendant from calling by way of demand on the performance bond issued by Malayan Banking Berhad (the said bank). I allowed the application on 10 November 2009 and below are hereinafter set out, my reasons for so doing.

[2] The relevant facts are that the plaintiff and the defendant entered into an agreement dated 10 October 2006 wherein the defendant appointed the plaintiff and the plaintiff agreed to carry out and complete the works to design, build and complete the construction of a store complex (TEKNIKAL) Kuala Lumpur/Timor/Kuala Lumpur - "Pusat dan local warehouse" on Lot 11553 Mukim Hulu Kelang, Daerah Gombak, Selangor Darul Ehsan (hereinafter referred to as the said project) upon the terms and conditions and for the consideration set out in the aforesaid agreement, (the said agreement).

[3] Among the salient terms of the said agreement, the plaintiff was to furnish a performance bond for a value of RM517,062 as a Security to the defendant in the event the plaintiff failed to complete the works under the said project. The other salient terms of the said agreement was that the plaintiff was to carry out the project according to the mode, specifications and/or the schedule set out in the said agreement.

[4] It was also further agreed that the said project was to be completed within 18 months and delivery of the site in respect of the said project by the defendant to the plaintiff was 12 May 2008. It was also to be noted that the contract binding on both the plaintiff and the defendant was the form of tender which was subject to exhaustive written contract document to follow.

[5] It is the plaintiff's case that they completed the works according to schedule and all works envisaged under the said project were completed. The plaintiff had obtained the relevant approval from the fire department (PASIF) on 13 August 2008 and the Certificate of Fitness to occupy the store from Majlis Perbandaran Ampang Jaya (MPAJ) on 3 December 2008. An independent professional engineer had signed the Borang E for the issue of the CF which was eventually issued on 13 December 2008. On 11 August 2008, the plaintiff carried out a site inspection with the attendance of the defendant and/or its representatives of the project works completed by the plaintiff but the defendant refused to accept delivery of the site of the said project works until 24 June 2009 and 16 September 2009 respectively. The defendant has refused to issue "Sijil Penyerahan Hak taking over certificate" ie, Certificate of Practical Completion.

[6] The defendant on 11 August 2009 (and the plaintiff contends wrongfully) issued a call on the performance bond to Malayan Banking Berhad for the total bond value of RM517,062.50 as the said bond was to expire on 13 November 2009. It was later agreed between the plaintiff and the defendant the said bond was to be extended from 13 November 2009 to 12 May 2011 and the defendant agreed to withdraw its demand on the bond. The defendant had made it clear in its correspondence with the plaintiff that it retained the right to proceed to call on the Bond which it did again on 14 October 2009 by way of a fresh call on the performance bond. The plaintiff maintains the defendant is indebted to the plaintiff in the sum of RM517,036 for the value of work done by the plaintiff which has not been paid by the defendant. The defendant denies the same.

[7] I have examined the facts presented by the defendant. The defendant quite simply asserts the plaintiff was in breach of its contractual obligations. The defendant has succinctly set out the alleged breaches in Annexure A to their written submissions. The defendant maintains the plaintiff did not complete the works within the stipulated time but a year later. In fact in exh. RM3 of encl. 6A, the defendant's affidavit, the defendant makes reference to this un