JUDGMENT

Azizah Nawawi JCA:

Introduction

[1] This is an appeal against the decision of the learned Judicial Commissioner dated 15 September 2020, dismissing the appellant's application for summary judgment of its claim. The appellant's claim against the respondent is for the sum of RM236,796,198.64, which the appellant claimed to be due and owing by the respondent under a Guarantee dated 5 December 2012, executed by him in favour of the appellant.

[2] Having considered the Appeal Record and the submissions of the parties, we have allowed the appeal with costs.

The Salient Facts

[3] Asian Broadcasting Network (M) Sdn Bhd ("ABN") was awarded a contract to develop an affordable subscription based digital cable system (the "ABN Project") by the Government of Malaysia.

[4] Subsequently ABN entered into Facilitation Fund Agreement dated 30 July 2012 with the appellant, Bank Pembangunan Malaysia Berhad ("the Bank") and the Government of Malaysia whereby the Government agreed to provide ABN with a grant of RM100 million to part finance the ABN Project.

[5] The Facilitation Fund Agreement also provided that the Government, pursuant to a Management Agreement dated 8 August 2011, appointed the Bank t