Introduction
This is a dispute between the plaintiff (“Plaintiff”) and four defendants namely the first defendant (“1st Defendant”), second defendant (“2nd Defendant”), third defendant (“3rd Defendant”) and fourth defendant (“4th Defendant”). The Plaintiff is a financial institution and its primary business is to provide financial assistance to upcoming enterprises in Malaysia.
MWKA represented the 1st and 2nd Defendants. The 4th Defendant was represented by Hanif Idris & Associates. The 3rd Defendant was a bankrupt and was not represented. The Plaintiff was represented by Muhammad Ganesan & Nazri.
Facts
1. On 30 March 2004, the 1st Defendant executed a Letter of Offer dated 29 March 2004 (“Letter of Offer”) whereby the Plaintiff approved a loan in the sum of RM12,920,000.00 to the 1st Defendant. On 8 June 2004, the 1st Defendant executed the Facility Agreement dated 8 June 2004 (“Facility Agreement”). On 23 May 2004, the 1st Defendant accepted a Supplementary Letter of Offer dated 13 May 2004 (“Supplementary Letter of Offer”) issued by the Plaintiff which revised the Letter of Offer. On 10 June 2004, the 1st Defendant accepted a Letter of Amendment dated 9 June 2004 (“Letter of Amendment”) issued by the Plaintiff which amended the Letter of Offer and Supplementary Letter of Offer.
2. The 2nd, 3rd and 4th Defendants were guarantors to the Facility Agreement. The Plaintiff subsequently through its Rescheduling and Restructuring Offer dated 24 September 2007 (“Rescheduling and Restructuring Offer”) restructured the 1st Defendant’s loan facilities subject to the terms of the Letter of Offer, Facility Agreement, Supplementary Letter of Offer and Letter of Amendment.
3. On 14 January 2013, the Plaintiff filed a claim against the Defendants alleging that the Defendants had failed to comply with the terms of repayment in the Rescheduling and Restructuring Offer, and claimed from the Defendants the sum of RM17,649,708.59 based on the Letter of Offer.
4. MWKA acting for the 1st and 2nd Defendants filed their Defence and Counterclaim for inter alia the following reliefs:-
4.1 A declaration that the Rescheduling and Restructuring Offer is valid and binding upon the Plaintiff;
4.2 A declaration that the Plaintiff is in breach of the Rescheduling and Restructuring Offer by failing to bank in the 1st Defendant’s cheque and for commencing a claim based on the Letter of Offer;
4.3 A declaration that the Plaintiff specifically perform and comply with the terms of the Rescheduling and Restructuring Offer from the date of the judgment; and
4.4 A declaration that the Plaintiff is not entitled to interest between the date when the Plaintiff failed to bank in the 1st Defendant’s cheque until the date of judgment.
5. Subsequently, the Plaintiff filed an application for Summary Judgment for the sum of RM17,649,708.59 against the Defendants and an application to strike out the 1st and 2nd Defendants’ Counterclaim. The 1st and 2nd Defendants opposed the Summary Judgment application and the striking out application. Our Mr Gan Chong Chieh was counsel for the 1st and 2nd Defendants.
Conclusion
6. On 24 June 2013, the High Court after hearing submissions held that whether the Letter of Offer or the Rescheduling and Restructuring Offer takes precedence is an issue to be tried and therefore dismissed the Plaintiff’s application for Summary Judgment and application to strike out the 1st and 2nd Defendants’ Counterclaim with costs in the cause.
7. The Plaintiff subsequently withdrew its claim with liberty to file afresh. Following the withdrawal of the claim, the parties have negotiated an amicable settlement.
