JUDGMENT

Shaik Daud J:

The first defendant, who are bankers, is the holder of Debentures dated 28 January 1988, 9 May 1991 and 5 November 1991 executed between themselves and the plaintiff. On or about April 1992 the plaintiff went into financial difficulties requiring further injection of funds. As a result it was agreed that if the plaintiff could arrange for another party a placement of a fixed deposit of six million Deutsche Mark, the 1st defendant would arrange an overdraft facility of RM6 million for the use of the plaintiff. After the 6 million Deutsche Mark was arranged the plaintiff claims that the 1st defendant refused to honour their agreement. The plaintiff on 17 February 1993 obtained a Court order to restructure the company but on the application of 1st defendant and two other creditors the order was set aside, and is currently on appeal to the Supreme Court. The 1st defendant has thereby appointed the 2nd and 3rd defendants as Receivers and Managers. The plaintiff now before me by summons in chambers apply to have the appointment of the 2nd and 3rd defendants as Receivers and Managers be set aside.

What the plaintiff is saying is that the 1st defendant proceeded to appoint the Receivers and Managers pursuant to the three Debentures and the plaintiff is not happy with the appointment.

Learned Counsel for plaintiff submits that powers to appoint Receivers and Managers as contained in the three Debentures are specific and must be followed strictly. It is the contention of the plaintiff that the 1st defendant has not complied with the specific powers as contained in the three Debentures in their appointment of the Receivers and Managers. He states that there are claims to be made by the plaintiff against the 1st defendant which is in the offing and thus at this stage it is not a prima facie situation where the 1st defendant being the Debenture holder can exercise its right to make the appointment. He states that there are issues to be tried in Court. He also confirms at a later stage that the plaintiff's application is in fact an Order 14 application. In fact the plaintiff is asking for a summary judgment of his writ of summons. The 1st defendant has filed affidavits objecting to the plaintiff's application. There are conflicting affidavits by either sides raising triable issues. Learned Counsel for the plaintiff in his submission virtually admits that there are issues to be tried. As such I can see no reason why the Court ought to entertain the plaintiff's application here.

The prayers asked for in this application if allowed would virtually wipe out the writ which is heavily disputed and is still pending. The first defendant has filed their statement of defence wherein 1st defendant has controverted to allegations of facts made in the statement of claim. I feel therefore the these matters are triable issues and can only be resolved after a full trial.

Since learned Counsel for the plaintiff has admitted that this application is an O. 14 application it is trite law that an affidavit in support of the application must expressly depose and advert to the fact that the defendant has no defence to the plaintiff's claim. Nowhere can I see in the plaintiff's affidavit in support of the application this averment.

To summarise since the plaintiff's application here is an application for summary judgment of their writ of summons, I find that these are triable issues. The lack of authority to appoint the Receiver and Manager as contended by plaintiff is being seriously challenged by the 1st defendant. Therefore I find these are triable issues and as such no summary judgment ought to be given.

Learned Counsel for the 2nd and 3rd defendants raises objections to affidavits filed on behalf of the plaintiff by one Yogendra Kumar Maheswari, particularly to affidavits in enclosures 22, 33 and 40. In all three affidavits Yogendra Kumar Maheswari admits that he was the former General Manager of the plaintiff and that he affirms