Rohana Yusuf J:

[1] Enclosure 2 is an application by the plaintiff for an interim injunction to restrain the defendant and its servants or agents from filing, presenting, advertising and or prosecuting a winding up petition against the plaintiff.

Background Facts

The defendant vide letter of offer in exh. CWM07 offered the plaintiff, a revolving trade line facilities up to a sum of RM5,600,000. In accordance with cl. (v) in the letter of offer, the plaintiff had utilised the said facilities on 17 separate occasions. In each of the transactions, the plaintiff had requested the defendant to purchase goods, mainly lighting products from a particular supplier, based on the quotations, proforma invoices or sale contracts. The defendant would accordingly purchase the required lighting products from the supplier, upon an undertaking that the plaintiff would buy the same from the defendant. This undertaking is made under the 'Promise to Purchase Agreement' (see exh. KIH1). The Promise to Purchase Agreement, (see cls. 1 and 3) contemplates that the plaintiff will thereafter, enter into a sale and purchase agreement to buy the said lighting products from the defendant. The terms of sale and the particulars of the lighting products will be spelled out in the sale agreement.

[2] In furtherance to the Promise to Purchase Agreement, the plaintiff and the defendant entered into a 'Murabaha Sale Agreement' (see exh. KIH1). By this Murabaha Sale Agreement, the defendant sold to the plaintiff the lighting products at an agreed price (see cl. 5). It is a material term of the Murabaha Agreement that the plaintiff would pay the purchase consideration by way of lump sum payment six months after the defendant made payment to the supplier. Thus, for each of the 17 transactions the parties had in fact entered into two sets of agreement viz; the Promise to Purchase Agreement and the Murabaha Sale Agreement, resulting in 17 Murabaha Sale Agreements being concluded between the parties, thus far.

[3] The plaintiff defaulted payment in 9 Murabaha Sale Agreements and the defendant's solicitor then, Messrs Abdul Raman Saad & Associate, issued a demand notice in exh. VJB03 to the plaintiff, claiming the amount outstanding. The plaintiff however, failed to comply with the said demand notice within the stipulated time. The present solicitor for the defendant subsequently issued a statutory notice under s 218 of the Companies Act 1965 in exh. VJB4, demanding for the same.

[4] The plaintiff is now seeking an injunctive relief against a winding up petition being presented against it, on two main grounds; firstly, that there is multiplicity of proceedings and secondly, that the debt is being seriously disputed by the plaintiff. The plaintiff contends that there is multiplicity of proceedings because the same Murabaha Sale Agreements are being pursued under two existing civil suits. While the main contention for the disputing the debt is grounded on alleged illegality and invalidity of the agreements. It is the plaintiff's case that the Murabaha Sale Agreements entered between them are in contravention of the Banking and Financial Institutions Act 1989 (BAFIA), the Islamic Banking Act 1983 (IBA) and the Money Lenders Act 1951 (MLA). The contraventions, according to learned counsel for the plaintiff are pending determination in both the two civil suits and hence it should be disposed first before the defendant may be able to take drastic measure in presenting a winding up petition against the plaintiff.

Multiplicity Of Proceeding

[5] Let me first deal with the issue on alleged multiplicity of proceedings raised by the plaintiff. En P.S Gill of counsel of the plaintiff says that there will be multiplicity of proceedings between the demand in s 218 notice and two civil suits filed by the defendant. According to him the two civil suits, which are pending in this court are in respect of the same Murabaha Sale Agreements as those in the s 218 notice. The Kuala Lumpur High