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THE HIGH COURT OF MALAYA KUALA LUMPUR

(COMMERCIAL DIVISION)
SUIT NO: D22NCC-2105-2010

1. TEE YOU SHIA


2. HO CHOI KIM
v.
1. ASSET FIRST SDN. BHD.
2. PARAMJIT SINGH A/L CHARAN SINGH
3. SHARANJIT SINGH A/L CHARAN SINGH
4. JAGMOHAN SINGH A/L BHUPINDAR SINGH
5. BAVANI A/P M. SOORIAMOORTHY

GROUNDS OF JUDGMENT

Enclosure 42 is an ex-parte application for the following Orders,


(1)

A declaration that the 2nd Defendant was and is the legal and
beneficial owner of the properties set down below:
1.1.

No. 48F, Jalan Hulubalang 29, Taman Sentosa, 41200


Klang, Selangor held under Geran 93238, Lot No.
62809, Mukim of Klang, District of Klang, State of
Selangor;
1

1.2.

No. 39F, Jalan Hulubalang 26, Taman Sentosa, 41200


Klang, Selangor held under Geran 93189, Lot No.
62766, Mukim of Klang, District of Klang, State of
Selangor;

1.3

No. 41F, Jalan Hulubalang 26, Taman Sentosa, 41200


Klang, Selangor held under Geran 93188, Lot No.
62765, Mukim of Klang, District of Klang, State of
Selangor;

1.4

No. 32A-1F, Jalan Dato Dagang 31, Taman Sentosa,


41200 Klang, Selangor held under Geran 60495, Lot
No. 72604, Mukim of Klang, District of Klang, State of
Selangor;

1.5

No. 65C-2F, Jalan Dato Dagang 31, Taman Sentosa,


41200 Klang, Selangor held under Geran 60549, Lot
No. 72658, Mukim of Klang, District of Klang, State of
Selangor;

1.6

No. 73B-1B, Jalan Dato Dagang 31, Taman Sentosa,


41200 Klang, Selangor held under Geran 60553, Lot
No. 72662, Mukim of Klang, District of Klang, State of
Selangor;

1.7

Unit No. B-G13, Ground Floor, Block B, Plaza Suria,


Jalan PJU 10/4A, Damansara Damai, 47300 Sungai
2

Buloh, Selangor held under PN 22332, Lot 70243,


Mukim of Sungai Buloh, District of Petaling, State of
Selangor;

1.8

Unit H/413, Blok H, Saujana Apartment, No. 1, Jalan


PJU 10/1G, PJU 10, Damansara Damai, 47830 Petaling
Jaya, Selangor held under PN 20615, Lot No. 70321,
Mukim of Sungai Buloh, District of Petaling, State of
Selangor;

1.9

Plot No. 67, Phase 1A/514, Lembah Beringin 44110


Kuala Kubu Bahru, Selangor held under Geran 39539,
Lot 1501, Mukim of Sungai Gumut, District of Ulu
Selangor, State of Selangor;

1.10

Unit No. 509, Block A, Rumah Pangsa Fasa 2, Bandar


Baru Sungai Buloh, Seksyen U20, 40160 Shah Alam,
Selangor;

1.11

Unit No. A-3-9, Pesona Villa Apartment, Jalan Melati


Indah 1, Saujana Melawati, 53100 Kuala Lumpur held
under GM 427, Lot 18625 (formerly known as HSM
13571), Mukim of Ulu Kelang, Tempat Batu 7 Hulu
Kelang, District of Gombak, State of Selangor;

1.12

No. C-11A-03, Lestari Apartments, Jalan PJU 10/1B,


Damansara Damai, 47830 Petaling Jaya, Selangor held
under PN 22376, Lot No. 70313, Mukim of Sungai
Buloh, District of Petaling, State of Selangor;

1.13

No. 2, C-12-7, Rumah Pangsa Cheras Ria, Jalan 6/95B,


Taman Cheras Utama, Cheras, 56100 Kuala Lumpur;

1.14

PS16-7, Prima Saujana Apartment, No.2, Jalan Wangsa


2/6, Taman Wangsa Permai, 52200 Kuala Lumpur held
under PM581/M1/17/363, Lot No. 58126, Bandar
Kepong, District of Gombak, State of Selangor;

1.15

No. 10, Tingkat Bawah, Blok 41, Jalan 28/24, Seksyen


28, 40400 Shah Alam, Selangor held under Geran
36258/M3/1/90, Lot No. 21916, Pekan Hicom, District of
Petaling, State of Selangor; and

1.16

Unit B4-02, 4th Floor, Block B, Pangsapuri Seri Pulai,


Jalan Balakong Jaya 26, Taman Balakong Jaya, 43300
Seri Kembangan, Selangor.

(the Properties)

(2)

A declaration that the Plaintiffs be recognized as the new legal


and beneficial owners, in equal half () shares, of each
individual unit of the Properties upon the completion or
compliance of the following:
4

2.1

The Plaintiffs respective execution of deed of absolute


assignments for each individual unit of the Properties;

2.2

Delivery of valid express notice of assignments for each


individual unit of the Properties to the respective housing
developers;

2.3

Delivery of valid adjudicated and stamped instruments of


transfer for each individual unit of the Properties to the
respective housing developers; and

2.4

Any other formal or ancillary requirements and/or


documents

necessary

for

the

formal

transfer

or

assignment.

(3)

declaration

that

any

deed

of

absolute

assignment,

instruments of transfer or assignment as well as other ancillary


notices and/or documents relating to each individual unit of the
Properties transfer or assignment be deemed to be duly,
regularly and completely executed in the absence of the 2nd
Defendants execution;

(4)

That upon the satisfaction of paragraph 2 above, the respective


Properties housing developer be ordered:
4.1

To within seven (7) days of the service of this sealed


Order, register and/or enter the Plaintiffs as legal and
beneficial owners of equal half () share of each
5

individual unit of the Properties in the respective housing


developers register or record of purchasers;
4.2 To as and when it immediately appears expedient
and possible, present all necessary documents and
assistance to the Registrar of Titles or Land Administrator
in order to facilitate the said Registrar of Titles or Land
Administrators registration and/or naming of Plaintiffs as
equal half () share owners of each individual unit of the
Properties in the respective land titles;
4.3

To refuse to register and/or enter into its register or


records of purchasers any other legal and beneficial
owners from and/or resulting from the 2nd Defendants
execution and/or delivery of any absolute assignment,
instruments of transfer or assignment as well as other
ancillary notices and/or documents relating to each
individual unit of the Properties transfer or assignment;
and

4.4

To refuse the provision of any documents and assistance


to the Registrar of Titles or Land Administrator in order to
facilitate the registration and/or naming of the 2nd
Defendants and/or any other of his transferee(s) or
assignee(s) as owners of each individual unit of the
Properties in the respective land titles.

(5)

That the Registrar of Titles or Land Administrator be ordered to


register and/or name the Plaintiffs as the legal and beneficial
owners, in equal half () share, of each individual unit of the
Properties in the respective land titles;

(6)

That the Director General of Inland Revenue or Collector of


Stamp Duties be ordered to adjudicate and/or stamp any deed
of absolute assignment, instruments of transfer or assignment
as well as other ancillary notices and/or documents relating to
each individual unit of the Properties transfer or assignment;

(7)

That is satisfaction of the judgment debt, interests and costs


ordered amounting to RM798,437.76 as at the date of filing
herein (the Adjudged Sum), it is hereby ordered as follows:
7.1

That an independent chartered valuation surveyor and/or


registered valuer be appointment to conduct a valuation
on each individual unit of the Properties;

7.2

That a licensed auctioneer be appointed to conduct a


private auction of each individual unit of the Properties;

7.3

That the amount of the Adjudged Sum be deducted from


the proceeds of the auction of each individual unit of the
Properties;

7.4

That the amount of all outgoings due from the 2nd


Defendant to each individual unit of the Properties
7

housing developers (all Outgoing Sum) be deducted


from the proceeds of the auction;
7.5

That the amount of fees, costs as well as any and all


other expenses arising from and relating to the auction
(all Auction Expenses) be deducted from the proceeds
of the auction;

7.6

That upon the satisfaction of the Adjudged Sum, all


Outgoing Sum and all Auction Expenses, and any/all
balance of proceeds from or resulting from the auction
shall be held in trust by the Plaintiffs solicitors for the
2nd Defendant and/or his estate; and

7.7

That upon the satisfaction of the Adjudged Sum, all


Outgoing Sum and all Auction Expenses, and in the event
one or more of each individual unit of the Properties
having failed to be auctioned, the Properties shall be held
in trust by the Plaintiffs for the 2nd Defendant and/or his
estate.

8.

That service of all documents on each individual unit of the


Properties housing developer be deemed effected by leaving a
copy of the document on the respective Properties housing
developers registered address with the Companies Commission
of Malaysia.

9.

That cost of this application be borne by the 1st and 2nd


Defendants; and

10. Such other orders or reliefs this Honourable Court deems fit and
necessary.

Background
Sometime in 2007, the Plaintiffs were invited to participate in property
investment schemes created and/or organized by the 1st, 2nd and 3rd
Defendants. The 2nd and 3rd Defendant introduced themselves as
directors of the 1st Defendant. The investment scheme involved
the 1st Defendant sourcing for suitable properties (apartments in
or around the Klang Valley) for purchase by participants and
subsequently for resale at higher prices. The 2nd and 3rd Defendants
on behalf of the 1st Defendant represented and promised inter alia
that:
(a)

The purchase price of the properties sourced by the 1st


Defendant and made available for purchase by the
participants would be very low compared to the market
price;

(b)

The properties were available to be purchased at low


prices in bulk quantities given the 2nd and 3rd Defendants
and/or the 1st Defendants connections with the banks;

(c)

The 1st Defendant would arrange for the properties to be


sold at high prices, being between 130% - 140% of the
purchase price;

(d)

The profits and returns from the investments would be


significant and between 30% - 40%; and

(e)

The investment scheme is lawful and would involve


proper documentation, including the execution of Sale
and Purchase Agreements prepared by 1st Defendants
nominated solicitors.

The Plaintiffs were attracted to the representations and promises of


the 2nd and 3rd Defendants and subsequently registered for 2 types of
investment schemes with the 1st Defendant as follows:(a)

The Asset Building Community scheme (ABC scheme)


upon executing an agreement with the 1st Defendant on
1.8.2008 (the 1.8.2008 ABC Agreement); and

(b)

The First Building Community scheme (FBC scheme)


upon executing an agreement with the 1st Defendant
sometime in April 2009 (FBC Agreement).

The Plaintiffs paid an annual joining fee and an administrative fee in


the sums of RM10,500.00 and RM12,600.00 respectively on 1.8.2008
to the 1st Defendant in order to participate and invest in the schemes.

10

ABC Scheme
The salient features of the 1.8.2008 ABC Agreement are as follows:
(a)

The 1st Defendant would be appointed to use its services


to purchase, rent and/or resell properties of the Plaintiffs.

(b)

The 1st Defendant was to encompassappointed


partners and associates including real property estate
agents,

auctioneers,

nominated

legal

firms,

utility

management companies and other companies affiliated to


the 1st Defendant.
(c)

An administration fee to the 1st Defendant for its services


in facilitating the property transactions would be paid and
was to be valid for a 5 year period.

(d)

The 1st Defendant was to source or obtain properties at a


guaranteed minimum price of 25% below market price for
the purchase.

(e)

The Plaintiffs had the option to purchase the available


properties,

to

total

maximum

investment

of

RM250,000.00 per year.


(f)

The Plaintiffs appointed the legal firms nominated by the


1st Defendant to represent them in the transactions, one
M/s Jagmohan Singh & Associates of No. 52-A, Jalan
Kemuja, Off Jalan Bangsar, 59000 Kuala Lumpur (4th
11

Defendants Firm) and M/s Bavani & Bhavani of No.


22A, Jalan Station 41000 Klang, Selangor Darul Ehsan
(5th Defendants Previous Firm), which name and style
was changed to the M/s S Bavani on 1.6.2009 and other
legal firms from time to time nominated by the 1st
Defendant.
(g)

The Plaintiffs paid for the properties purchased with cash


and by depositing the total purchase price into the Clients
Account of the nominated legal firms in the following
manner:

Option

Payment
(% of Purchase
Price)

10

To be paid within 3 working days from the


date of confirmation of selection of property

90

To be paid within 7 working days from the


date of confirmation of selection of property

Manner of payment

Or
2

(h)

100

To be paid within 5 working days from the


date of confirmation of selection of property

The legal fees of the legal firm nominated to represent the


Plaintiffs in the transaction were paid by the Plaintiffs.

(i)

The vacant possession of the property from the 1st Defendant


will be given within forty five days (45) of executing the Sale
and Purchase Agreement. The period of receipt of vacant
possession should not exceed ninety (90) days.
12

(j)

The 1st Defendant was to ensure that the properties were


tenantable and would provide a guaranteed minimum rental
return of 8% per annum (of the purchase price).

The Plaintiffs made several initial investments in the ABC scheme.


Under the ABC scheme the Plaintiffs purchased through the 1st
Defendant three (3) properties as arranged by the 1st Defendant (the
ABC properties). The offer by the 1st Defendant and the selection
of the ABC properties were done through the 1st Defendants website.
Particulars of the ABC properties purchased, vendors, sale and
purchase agreements (SPAs), purchase prices and payments are
as follows:

ABC properties purportedly purchased:

NO

DETAILS OF PROPERTY

VENDOR &
DOCUMENTS

One (1) unit apartment with an


address at Unit No. F-1-1,
Apartment Golden Villa, Jalan
Temenggung 37/KS 07, Taman
Sejahtera,
41000
Klang,
Selangor Darul Ehsan (F-1-1
Unit).

Purchase from one


Rinajeet Kaur a/p
Hacharam Singh by
SPA dated 13.3.2009
prepared
by
4th
Defendants Firm.

One (1) unit apartment with an


address at No. Alpi 02-07,
Second Floor, Jalan Residensi
Warnasari
13/1,
Residensi
Warnasari 2, 42300 Bandar
Puncak Alam, Selangor Darul
Ehsan (Alpi 02-07 Unit).

Purchase from one


Abdul
Malik
bin
Muhamed Sultan by
SPA dated 16.1.2009
prepared
by
4th
Defendants Firm.

13

PURCHASE
PRICE &
PAYMENT
RM59,049.00
(Paid in full to
4th Defendants
Firm on
5.12.2008)

RM54,000.00
(Paid in full to
4th Defendants
Firm on
16.9.2008)

One (1) unit apartment with an


address at No. Kasih 01-24, 1st
Floor, Astana Kasih, Astana
Alam Apartment 3, Jalan Astana
13/2, Section 13, Bandar
Puncak Alam, Selangor Darul
Ehsan (Kasih 01-24 Unit).

Purchase from one


Rinajeet Kaur a/p
Hacharan Singh by
SPA dated 16.1.2009
prepared
by
4th
Defendants Firm.

TOTAL

RM47,250.00
(Paid in full to
4th Defendants
Firm on
16.9.2008)

160,299.00

The 4th Defendants Firm was nominated by the 1st Defendant to


represent the Plaintiff in the purchase of the ABC properties.
Accordingly, the 4th Defendants Firm prepared the SPAs for the
Plaintiffs purchase of the F-1-1 Unit, Alpi 02-07 Unit and Kasih 01-24
Unit. The 4th Defendants Firm also received the full purchase price
of the ABC properties from the Plaintiffs.

Despite having paid the full purchase price and legal fees for the ABC
properties, the Plaintiffs were never informed by the 1st, 2nd, 3rd or 4th
Defendants of the date they would be given the vacant possession of
the ABC properties. The Plaintiffs never received any profits or
returns.
Following the purchases of the ABC properties, the 1st Defendant
then purported to arrange for the resale of the F-1-1 Unit, Alpi 02-07
Unit and Kasih 01-24 for the Plaintiffs through its nominated real
estate agent, M/S Marriot Properties. The Plaintiffs then sold the ABC
properties to various purchases for profits between 30% - 40% or
more of the original purchase price. The arrangements by the 1st
14

Defendant for the resale of the ABC properties were informed to


and agreed by the Plaintiffs through the 1st Defendants website.
Particulars of the purported resale are as follows:

Purported resale of ABC properties:


NO PROPERTY

PURCHASER &
DOCUMENTS

RESALE
PRICE (RM)

PROFIT
(%)

Sold to one Savendar Kaur


a/p Charan Singh by SPA
dated 2.6.2009 prepared by
the 4th Defendants Firm.

82,000.00

39

F-1-1 Unit

Alpi
Unit

02-07 Sold to one Siti Zaleha binti


Muhammad Salim by SPA
dated 7.5.2009 prepared by
the 4th Defendants Firm.

75,600.00

40

Kasih 01-24 Sold to one Savendar Kaur


Unit
a/p Charan Singh by SPA
dated 2.6.2009 prepared by
the 4th Defendants Firm.

67,560.00

43

TOTAL

225,160.00

Based the terms of the respective SPAs prepared by the 4th


Defendants Firm, the Plaintiffs were suppose to receive the resale
price of the F1-1-Unit, Alpi 02-07 Unit and Kasih 01-24 Unit totaling
RM225,160.00 from the 1st, 2nd, 3rd Defendants and/or 4th Defendants
Firm within 3 months from the date of the respective SPAs. However,
the 1st, 2nd, 3rd Defendants and/or the 4th Defendants Firm failed, to
pay in full or any part of the resale price to the Plaintiffs.
15

Notwithstanding the delay and/or default to pay the resale price, the
Plaintiffs renewed their membership in the ABC scheme by paying to
the 1st Defendant the requisite administrative fee of RM12,600.00 on
31.7.2009.

FBC Scheme
Investors in the FBC scheme would invest in and purchase shares
or portions in FBC properties. As represented by the 1st, 2nd and/or
3rd Defendants, once all the shares or portions in each FBC property
has been taken up, the 1st Defendant would make the necessary
arrangements for the purchase and subsequent resale of the FBC
property. The 1st, 2nd and/or 3rd Defendants represented that the profit
and/or rate of return on the Plaintiffs investment in the FBC scheme
would be announced and paid within 6 months after each FBC
investment. The 1st Defendant offered the FBC properties for
investment on the 1st Defendants website. The Plaintiffs were invited
through the 1st Defendants website to select the FBC property to
invest in and specify the share or portion in ringgit value of each FBC
investment.
The Plaintiffs were represented by solicitors nominated by the 1st
Defendant for each investment in the FBC scheme. The investments
in the FBC properties were paid to either the 5th Defendants Firm
or 5th Defendants Previous Firm. The Plaintiffs also paid legal fees
for every transaction under the FBC scheme to either the 5th
Defendants Firm or 5th Defendants Previous Firm.
16

The 1st Defendant duly declared the profits for the investments in the
FBC scheme for the months of April, May and June 2009. However,
the 1st Defendant has to date, failed, omitted and/or refused to pay
the declared profits and to return the investment to the Plaintiffs for
this period. In respect of the Plaintiffs investment between August
2009 to March 2010, the 1st Defendant has to date, failed, omitted
and/or refused to declare or pay any profits for the investment in the
FBC scheme for this period.

Upon discovery of the fraud, the Plaintiffs made a police report on


11.8.2010 against the Defendants and thereafter on 2.9.2010 lodged
a complaint against

the 5th Defendant for the participation and/or

involvement in the fraud relating to the FBC scheme with the


Advocates & Solicitors Disciplinary Board.
Plaintiffs Suit Against The Defendants
The Plaintiffs filed a Writ of Summons and Statement of Claim
against the Defendants for the following prayers:
1.

Liquidated damages:
(a)

RM10,500.00 from the 1st, 2nd and 3rd Defendants jointly


and severally, being the Joining Fee paid by the 1st
Plaintiff to invest in the ABC scheme;

(b)

RM25,200.00 from the 1st, 2nd and 3rd Defendants jointly


and severally, as Administrative Fee paid by the 1st
Plaintiff for the period of 2008 and 2009 (renewal);
17

(c)

RM160,299.00 from the 1st, 2nd, 3rd and 4th Defendants


jointly and severally, being the total purchase price paid
by the 1st Plaintiff for the F-1-1 Unit, Alpi 02-07 Unit and
Kasih 01-24 Unit under the ABC scheme;

(d)

RM64,851.00 from the 1st, 2nd, 3rd and 4th Defendants


jointly and severally, being the profit due to the 1st
Plaintiff from the resale of the F-1-1 Unit, Alpi 02-07 Unit
and Kasih 01-24 Unit under the ABC scheme;

(e)

RM5,511.43 from the 4th Defendant being the total legal


fees paid by the 1st Plaintiff for the purchase and resale of
the F-1-1 Unit, Alpi 02-07 Unit and Kasih 01-24 Unit under
the ABC scheme;

(f)

RM15,750.00 from the 1st, 2nd and 3rd Defendants jointly


and severally, being the membership fee paid by the
1st Plaintiff for the FBC scheme for April 2009, May 2009
and June 2009;

(g)

RM181,200.00 from the 1st, 2nd , 3rd and 5th Defendants


jointly and severally, being the 1st Plaintiffs investment in
the FBC scheme;

(h)

RM19,265.92 from the 1st, 2nd , 3rd and 5th Defendants


jointly and severally, being the declared profit for the

18

1st Plaintiffs investment in the FBC scheme for the


months of April 2009, May 2009 and June 2009;
(i)

RM1,200.00 from the 5th Defendant being the total legal


fees paid by the 1st Plaintiff to the 5th Defendants Firm for
the investment in the FBC scheme for August 2009 to
March 2010; and

(j)

RM600.00 from the 5th Defendant being the total legal


fees paid by the 1st Plaintiff to the 5th Defendants
Previous Firm for the investment in the FBC scheme for
April 2009, May 2009 and June 2009;

2.

Other relief sought are as follows:


(a)

A declaration that the business of the 1st Defendant have


been carried on by 2nd and 3rd Defendant with an intent to
defraud the investors, particularly the 1st and 2nd Plaintiffs;

(b)

A declaration that the Defendants shall be jointly and/or


severally liable and personally liable, where applicable,
without any limitation of liability, for all of the debts or
other liabilities of the 1st Defendant;

(c)

General Damages to be assessed by this Honourable


Court:
(i)

Against all Defendants for their fraud against the


1st and 2nd Plaintiffs respectively;
19

(ii)

Against the 4th and 5th Defendants for their breach


of fiduciary duty and/or negligence; and

(iii)

(d)

Against the 1st Defendant for breach of Contract.

Aggravated and exemplary damages to be assessed by


the Honourable Court against all the Defendants;

(e)

Interest at 8% per annum on the judgment sum from the


date of filing of the Summons herein until full realization
thereof;

(f)

Costs of this action; and

(g)

Such further and other relief that this Honourable Court


deems fit and just.

Pursuant to the Order dated 13.1.2011 (the Striking Out Order)


and Judgement dated 13.1.2011 (the Judgment in Default), the
1st and 2nd Defendants owe the 1st and 2nd Plaintiffs the total sum of
RM539,984.08 and RM258,453.68 (the Outstanding Amount)
respectively. However the 1st and 2nd Defendants failed, omitted
and/or refused to satisfy the said amounts. To date, the total amount
due and owing by the 1st and 2nd Defendant to the Plaintiffs pursuant
to the Striking Out Order and Judgment in Default are as follows:

20

1st Plaintiff:
NO JUDGMENT/ORDER
1.

Judgment in Default

ITEM(S)

AMOUNT (RM)

Judgment Sum

477,065.92

Interest at 8% per annum

27,918.16

from 12.11.2010 to 5.8.2011

2.

Fixed Costs

25,000.00

Fixed Costs

10,000.00

Total (the Outstanding Amount)

539,984.08

Striking Out Order

2nd Plaintiff:
NO JUDGMENT/ORDER
1.

Judgment in Default

ITEM(S)

AMOUNT (RM)

Judgment Sum

211,100.00

Interest at 8% per annum

12,353.68

from 12.11.2010 to 5.8.2011

2.

Fixed Costs

25,000.00

Fixed Costs

10,000.00

Total (the Outstanding Amount)

258,453.68

Striking Out Order

The Plaintiffs through their solicitors had made numerous inquiries to


ascertain the assets of the 1st and 2nd Defendants for the purpose of
execution to satisfy the Outstanding Amount, including writing to
property developers for properties believed to belong to the 1st and/or
2nd Defendant. The following properties were confirmed (by its
corresponding written proof/confirmation) to be properties of the 2nd
Defendant:

21

NO

PROPERTY(S)

PROPERTY
TYPE

INSTRUMENT OF
TRANSFER/TITL
E

ESTIMATED
VALUE
(RM)

No.
48F,
Jalan
Hulubalang 29, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 93238, Lot No.
62809, Mukim of Klang,
District of Klang, State
of Selangor;

Strata

Deed of
Assignment/Title
Not Issued

30,000.00

Plaintiffs solicitors
letter dated 28.2.2011
& M/s Ablelink
Properties (M) Sdn
Bhds letter dated
1.3.2011 and Land
search dated 11.8.2011
(Developers
confirmation).

No.
39F,
Jalan
Hulubalang 26, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 93189, Lot No.
62766, Mukim of Klang,
District of Klang, State
of Selangor;

Strata

Deed of
Assignment/Title
Not Issued

32,000.00

Plaintiffs solicitors
letter dated 28.2.2011
& M/s Ablelink
Properties (M) Sdn
Bhds letter dated
1.3.2011 and Land
search dated 11.8.2011
(Developers
confirmation).

No.
41F,
Jalan
Hulubalang 26, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 93188, Lot No.
62765, Mukim of Klang,
District of Klang, State
of Selangor;

Strata

Deed of
Assignment/Title
Not Issued

37,000.00

Plaintiffs solicitors
letter dated 28.2.2011
& M/s Ablelink
Properties (M) Sdn
Bhds letter dated
1.3.2011 and Land
search dated 11.8.2011
(Developers
confirmation).

No. 32A-1F, Jalan Dato


Dagang 31, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 60495, Lot No.
72604, Mukim of Klang,
District of Klang. State
of Selangor.

Strata

Deed of
Assignment/Title
Not Issued

39,500.00

Plaintiffs solicitors
letter dated 28.2.2011
& M/s Fajar Marketing
& Development Sdn
Bhds letter dated
24.3.2011 and Land
search dated 6.6.2011
(Developers
confirmation).

No. 65C-2F, Jalan Dato


Dagang 31, Taman
Sentosa, 41200 Klang,
Selangor under held
under Geran 60549, Lot
No. 72658, Mukim of
Klang, District of Klang,
State of Selangor;

Strata

Deed of
Assignment/Title
Not Issued

30,000.00

Plaintiffs solicitors
letter dated 28.2.2011
& M/s Fajar Marketing
& Development Sdn
Bhds letter dated
24.3.2011 and Land
search dated 6.6.2011
(Developers
confirmation).

22

CONFIRMATION OF
OWNERSHIP

No. 73B-1B, Jalan Dato


Dagang 31, Taman
Sentosa, 41200 Klang,
Selangor held under
Geran 60553, Lot No.
72662, Mukim of Klang,
District of Klang, State
of Selangor;

Strata

Deed of
Assignment/Title
Not Issued

45,000.00

Plaintiffs solicitors
letter dated 28.2.2011
& M/s Fajar Marketing
& Development Sdn
Bhds letter dated
24.3.2011 and Land
search dated 6.6.2011
(Developers
confirmation).

Unit
No.
B-G13,
Ground Floor, Block B,
Plaza Suria, Jalan PJU
10/4A,
Damansara
Damai, 47300 Sungai
Buloh, Selangor held
under PN 22332, Lot
70243,
Mukim
of
Sungai Buloh, District
of Petaling, State of
Selangor;

Strata

Deed of
Assignment/Title
Not Issued

190,350.00

Plaintiffs solicitors
letter dated 11.4.2011
& M/s Medam Prestasi
Sdn Bhds letter dated
18.5.2011 and Land
search dated 13.6.2011
(Developers
confirmation).

Unit H/413, Blok H,


Saujana
Apartment,
No. 1, Jalan PJU
10/1G,
PJU
10,
Damansara
Damai,
47830 Petaling Jaya,
Selangor held under
PN 20615, Lot No.
70321,
Mukim
of
Sungai Buloh, District
of Petaling, State of
Selangor;

Strata

Deed of
Assignment/Title
Not Issued

79,380.00

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped and Land
search dated 9.8.2011.

Plot No. 67, Phase


1A/514,
Lembah
Beringin 44110 Kuala
Kubu Bahru, Selangor
held
under
Geran
39539,
Lot
1501,
Mukim
of
Sungai
Gumut, District of Ulu
Selangor,
State
of
Selangor;

Strata

Deed of
Assignment/Title
Not Issued

47,500.00

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
dated 30.4.2010,
unstamped and Land
search dated 9.8.2011.

10

Unit No. 509, Block A,


Rumah Pangsa Fasa 2,
Bandar Baru Sungai
Buloh, Seksyen U20,
40160 Shah Alam,
Selangor;

Strata

Deed of
Assignment/Title
Not Issued

43,200.00

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped.

23

11

Deed of
Assignment/Title
Not Issued

117,500.00

Plaintiffs solicitors
letter dated 31.5.2011
& M/s Nashill & Cos
letter dated 1.6.2011
and Land search dated
8.8.2011 (Assignors
solicitors confirmation).

Unit No. A-3-9, Pesona


Villa Apartment, Jalan
Melati Indah 1, Saujana
Melawati, 53100 Kuala
Lumpur held under
GM 427, Lot 18625
(formerly known as
HSM 13571), Mukim of
Ulu Kelang, Tempat
Batu 7 Hulu Kelang,
District of Gombak,
State of Selangor;

Strata

12

No. C-11A-03, Lestari


Apartments, Jalan PJU
10/1B,
Damansara
Damai, 47830 Petaling
Jaya, Selangor held
under PN 22376, Lot
No. 70313, Mukim of
Sungai Buloh, District
of Petaling, State of
Selangor;

Strata

Deed of
Assignment/Title
Not Issued

46,000.00

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped and Land
search dated
11.8.2011.

13

No. 2, C-12-7, Rumah


Pangsa Cheras Ria,
Jalan 6/95B, Taman
Cheras Utama, Cheras,
56100 Kuala Lumpur;

Strata

Deed of
Assignment/Title
Not Issued

48,000.00

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant),
undated and
unstamped.

14

S16-7, Prima Saujana


Apartment, No.2, Jalan
Wangsa 2/6, Taman
Wangsa Permai, 52200
Kuala Lumpur held
under M581/M1/17/363,
Lot No. 58126, Bandar
Kepong,
District
of
Gombak,
State
of
Selangor;

Strata

Memorandum of
Transfer

91,900.00

Plaintiffs solicitors
letter dated 15.3.2011
& M/s Palm Grove
Housing Sdn Bhds
letter dated 21.3.2011
and Land search
conducted on 8.8.2011
(Developers
confirmation). .

15

No. 10, Tingkat Bawah,


Blok 41, Jalan 28/24,
Seksyen 28, 40400
Shah Alam, Selangor
held
under
Geran
36258/M3/1/90. Lot No.
21916, Pekan Hicom,
District of Petaling,
State of Selangor; and

Strata

Memorandum of
Transfer

54,000.00

Plaintiffs solicitors
letter dated 27.4.2011
& M/s Suria Capital
Holdings Bhds letter
dated 28.4.2011 and
Land search conducted
on 9.8.2011
(Developers
confirmation).

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant)
undated and
unstamped.

24

61

th

Unit B4-02, 4 Floor,


Block B, Pangsapuri
Seri
Pulai,
Jalan
Balakong Jaya 26,
Taman Balakong Jaya,
43300 Seri Kembangan
Selangor.

Strata

Memorandum of
Transfer

31,500.00

Original Deed of
Assignment between
Assignor (Bank) and
Assignee (Defendant)
undated and
unstamped.

(the Properties)

However, the Plaintiffs solicitors have not been able to ascertain


any other properties belonging to the 1st and 2nd Defendant.

For

the purposes of execution of the outstanding amount against the


2nd Defendant, the usual mode of execution is by a Writ of Seizure
and Sale (pursuant to O 45 r 1(1) of the Rules of the High Court
1980) [the Writ of Seizure and Sale] and that the said Writ is
effective from and by the registration of a Prohibitory Order (pursuant
to s 334 of the National Land Code) in the register document of title
by the Registrar of Titles or Land Administrator.

However, since

individual strata titles have yet to be issued by the relevant land


offices for the Properties above or where individual strata title having
being issued but yet to be subdivided to the 2nd Defendant, the
Plaintiffs solicitor is prevented from filing and/or resorting to the
procedure of Writ of Seizure and Sale to execute the Judgment in
Default and Striking Our Order in order to satisfy the outstanding
amount. This present incapacity is due to the inability of the Registrar
of Titles or Land Administrator to register the Prohibitory Order into
the respective individual titles of the Properties.
25

It is the submission of the Plaintiffs that the Court possesses the


inherent jurisdiction to promote and preserve the cause of justice
through the due process of the law.

It is further submitted by the Learned Counsel for the Plaintiffs that


the orders sought are within the ambit of the courts inherent
jurisdiction pursuant to s 25(2) of the Courts of Judicature Act
1964 as well as O 92 r 4 of the Rules of the High Court 1980. It is
submitted that it is just and equitable to grant such an order for
following reasons:
(i)

The orders will enable the Plaintiffs to appropriately


satisfy the amount due and owing pursuant to the final
judgment from the 2nd Defendant;

(ii)

In the absence for such orders, the Plaintiffs would only


be left with a paper judgment notwithstanding the
existence

and

availability

of

the

2nd

Defendants

Properties for execution;


(iii)

In the absence of such orders, the defaulting Defendants


would be allowed to stifle a final and proper judgment of
the Court by relying and capitalizing in a loophole within
the existing framework of the law.

The Learned Counsel submitted that the 2nd Defendant will not be
prejudiced by the orders sought herein since any and all excess sums
26

from the auction or Properties not successfully auctioned, would


indefinitely be held by the Plaintiffs solicitor in trust for the 2nd
Defendant or his estate respectively.

Decision
In the instant case the Plaintiffs sought an order from this Court to
declare that the 2nd Defendant was and is the legal and beneficial
owner of the properties set down below:
1.1.

No. 48F, Jalan Hulubalang 29, Taman Sentosa, 41200


Klang, Selangor held under Geran 93238, Lot No.
62809, Mukim of Klang, District of Klang, State of
Selangor;

1.2.

No. 39F, Jalan Hulubalang 26, Taman Sentosa, 41200


Klang, Selangor held under Geran 93189, Lot No.
62766, Mukim of Klang, District of Klang, State of
Selangor;

1.3

No. 41F, Jalan Hulubalang 26, Taman Sentosa, 41200


Klang, Selangor held under Geran 93188, Lot No.
62765, Mukim of Klang, District of Klang, State of
Selangor;

1.4

No. 32A-1F, Jalan Dato Dagang 31, Taman Sentosa,


41200 Klang, Selangor held under Geran 60495, Lot
No. 72604, Mukim of Klang, District of Klang, State of
Selangor;
27

1.5

No. 65C-2F, Jalan Dato Dagang 31, Taman Sentosa,


41200 Klang, Selangor held under Geran 60549, Lot
No. 72658, Mukim of Klang, District of Klang, State of
Selangor;

1.6

No. 73B-1B, Jalan Dato Dagang 31, Taman Sentosa,


41200 Klang, Selangor held under Geran 60553, Lot
No. 72662, Mukim of Klang, District of Klang, State of
Selangor;

1.7

Unit No. B-G13, Ground Floor, Block B, Plaza Suria,


Jalan PJU 10/4A, Damansara Damai, 47300 Sungai
Buloh, Selangor held under PN 22332, Lot 70243,
Mukim of Sungai Buloh, District of Petaling, State of
Selangor;

1.8

Unit H/413, Blok H, Saujana Apartment, No. 1, Jalan


PJU 10/1G, PJU 10, Damansara Damai, 47830 Petaling
Jaya, Selangor held under PN 20615, Lot No. 70321,
Mukim of Sungai Buloh, District of Petaling, State of
Selangor;

1.9

Plot No. 67, Phase 1A/514, Lembah Beringin 44110


Kuala Kubu Bahru, Selangor held under Geran 39539,
Lot 1501, Mukim of Sungai Gumut, District of Ulu
Selangor, State of Selangor;

28

1.10

Unit No. 509, Block A, Rumah Pangsa Fasa 2, Bandar


Baru Sungai Buloh, Seksyen U20, 40160 Shah Alam,
Selangor;

1.11

Unit No. A-3-9, Pesona Villa Apartment, Jalan Melati


Indah 1, Saujana Melawati, 53100 Kuala Lumpur held
under GM 427, Lot 18625 (formerly known as HSM
13571), Mukim of Ulu Kelang, Tempat Batu 7 Hulu
Kelang, District of Gombak, State of Selangor;

1.12

No. C-11A-03, Lestari Apartments, Jalan PJU 10/1B,


Damansara Damai, 47830 Petaling Jaya, Selangor held
under PN 22376, Lot No. 70313, Mukim of Sungai
Buloh, District of Petaling, State of Selangor;

1.13

No. 2, C-12-7, Rumah Pangsa Cheras Ria, Jalan 6/95B,


Taman Cheras Utama, Cheras, 56100 Kuala Lumpur;

1.14

PS16-7, Prima Saujana Apartment, No.2, Jalan Wangsa


2/6, Taman Wangsa Permai, 52200 Kuala Lumpur
under held under PM581/M1/17/363, Lot No. 58126,
Bandar Kepong, District of Gombak, State of Selangor;

1.15

No. 10, Tingkat Bawah, Blok 41, Jalan 28/24, Seksyen


28, 40400 Shah Alam, Selangor held under Geran
36258/M3/1/90. Lot No. 21916, Pekan Hicom, District of
Petaling, State of Selangor; and

29

1.16

Unit B4-02, 4th Floor, Block B, Pangsapuri Seri Pulai,


Jalan Balakong Jaya 26, Taman Balakong Jaya, 43300
Seri Kembangan, Selangor.

O. 92 r. 4 of the Rules of the High Court reads as follows,


For the removal of doubts it is hereby declared that nothing in these
rules shall be deemed to limit or affect the inherent powers of the Court
to make any order as may be necessary to prevent injustice or to
prevent an abuse of the process of the Court..

Low Hop Bing J (as he then was) said in Maharin Nisha


Hassan Mohamed v. Panir Selvam Chellamuthu & Anor
[2005] 7 CLJ 289 that Order 92 r 4
is not a carte blanche. There must be a proper basis for it to be invoked.
It has been so succinctly stated by Syed Agil Barakbah SCJ in Permodalan
MBF Sdn. Bhd. v. Tan Sri Datuk Seri Hamzah bin Abu Samah & Ors. [1988] 1
CLJ 244 (Rep); [1988] 1 CLJ 31; [1988] 1 MLJ 178 that where the rules
contain provisions making available sufficient remedies, the court will not
invoke its inherent powers..

Abdul Malik Ishak J (as he then was) in Affin Bank Bhd. v. WT


Low & Ng Realty Sdn. Bhd. [2003] 1 CLJ 674 explained that the
inherent jurisdiction of the Court may be invoked in a variety of
circumstances but,
. there are limits to it. The distinctive feature of the inherent
jurisdiction of the court is that it is exercisable by summary process.

30

The scope of this Order on the inherent jurisdiction of the court is very
wide but as stated by Edgar Joseph Jr. in Pacific Centre Sdn. Bhd. v.

United Engineers (M) Bhd. [1984]2MLJ 143 at 147,


..the inherent jurisdiction powers of the court includes all powers
that are necessary

to fulfill itself as a court of law; to uphold, to

protect, and to fulfill the judicial function of administering justice


according to law in a regularly, orderly and effective manner..

The inherent jurisdiction must be applied to do justice to parties


and to secure fairness. It would be of great injustice for this Court to
declare that the Plaintiffs be recognized as the new legal and
beneficial owners, in equal half () shares, of each individual until of
the properties upon the completion or compliance of the following for
each individual unit of the aforesaid properties for the following
reasons:1)

The aforesaid properties are not properties which the


Plaintiffs themselves have purchased or sold through the
ABC and /or FBC schemes from the Defendants.

2)

The properties listed above are not limited to the


properties which the Plaintiffs have purchased or sold but
also included properties purchased and sold by other
investors. There are also other parties/investors that have
participated and invested by either purchasing or selling
the aforesaid properties in the aforesaid ABC and FBC
scheme.

31

Based on the reasons mentioned above I am of the considered view


that this is not a fit and proper case for this court to exercise its
inherent jurisdiction to make the orders as sought by the Plaintiffs.

t.t.
( HASNAH BINTI DATO MOHAMMED HASHIM )
Judicial Commissioner
High Court of Malaya
Kuala Lumpur.
30th January 2012

Counsels:
For the Plaintiff/ Appellant:
Messrs. Mah Weng Kwai & Associates
Jeremy Yong

For the Defendant/Respondent:


Messrs. Teh Soon Kee & Partners
Messrs. Ho-Noecker & Pragasam

32

33