106 Hujahan Bertulis Defendan-Ofisgate SDN BHD +@002

WA-22NCC-429-09/2020
Encl No. 106

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WA-22NCC-429-09/2020
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DALAM MAHKAMAH TINGGI DI KUALA LUMPUR
DALAM WILAYAH PERSEKUTUAN, MALAYSIA
GUAMAN NO.: WA-22NCC-429-09/2020
ANTARA
MUTIARA SMART SDN. BHD.

(No. Syarikat: 467385-M) …PLAINTIF
DAN
OFISGATE S DN. BHD.

(No. Syarikat: 610820-A) …DEFE NDAN
************************** ************ *****************************************
DEFENDANT’S WRITTEN SUBMISSION

************************** ************ *****************************************
Filed by Defendant’s Solicitor:

Messrs. Zairus & Dora
Advocates & Solicitors
No 35B, Jalan Alfa F U6/F,
Pusat Perdangangan Subang Permai,
40150 Shah Alam, Selangor.
Tel: : 03-7846 7249 / 7734 0846
Fax : 03-2726 8927
Ruj.: ZD/L/S/96/521/OFISGATE
1
S/N cYWcMpBQeU2CYdpMCgsLsw
**Note : Serial number will be used to verify the originality of this document via eFILING portal
INTRODUCTION
1. This is the Defendant’s written submission after the full trial.
2. The trial was condu cted online over a period of 3 days on 1.12.2021,
2.12.2021 and 20.12.2021.
The Documents
3. During the trial, the following documents will be referred and marked
as follows:
(1) Bundle of Pleadings – Marked “IP”;
(2) Agreed Facts – Marked “A”;
(3) Issues to be Tried – Marked “B”;
(4) The Plaintiff’s Summary of Case – Marked “C”;
(5) The Defendant’s Summary of Case – Marked “D”;
(6) Common Bundle of Documents (Part B ) – Marked “CBD-1”;
(7) Additional Common of Bundle of Documents (Part B ) – Marked
“CBD-2”;
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(8) The Plaintiff’s Additional Bundle of Documents – Marked “CBD-
3”;
(9) The Defendant’s A dditional Bundle of Documents (Volume 1) –
Marked “CBD-4”;
(10) The Defendant’s Additional Bundle of Documents (Volum e 2)
– Marked “CBD-5”;
(11) The Defendant’s Additional Bundle of Documents (Volum e 3)
– Marked “CBD-6”;
The Witnesses
4. In the course of the trial, a total of 6 witnesses were called, 2 from
the Plaintiff and 4 from the Defendants, as follows:
(1) The Plaintiff’s 1 s t witness, En. Jamalil bin Jaafar (SP-1 ) – SP-1
Witness Statement was marked “PWS-1”;
(2) The Plaintiff’s 2 n d witness, Pn. Wan Nadiah binti wan Abas (SP-
2) – SP-2 Witness Statement was marked “PWS-2”;
(3) The Defendant’s 1 s t witness, En. Shamsul Bahari bin Mokmin
(SD-1) – SD-1 Witness Statement was marked “DWS-1”;
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(4) The Defendant’s 2 n d witness, En. Mohd Zainuddin bin Omar (S D-
2) – SD-2 Witness Statement was marked “DWS -2”;
(5) The Defendant’s 3rd witness (Subpoena witness), Pn.
Noorshuhada binti Ahmad (SD-3) – S D-3 Witness Statement was
marked “DWS-3”;
(6) The Defendant’s 4 t h witness (Subpoena witness), En. Amir bin
Abd Rahman (SD-4) – SD-4 Witness Statement was marked
“DWS-4”.
THE PLAINTIFF’S CLAIM
5. The Plaintiff in their Statement of Claim had alleged that they had
given a loan to the Defendant and claimed from the Defendant a sum
of RM1,837,500.00 being the outstanding sum under the loan made
up as follows:
(1) RM1,000,000.00 (the 1 s t loan);
(2) RM250,000.00 (the 2 n d loan);
(3) RM500,000.00 (the 3 r d loan);
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THE DEFENDANT’S DEFENSE AND COUNTER CLAIM
6. The Defendant in their Statement of Defense had pleaded that all
payments received by the Defendant from the Plaintiff were payment
pursuant to the Share Sale Agreement and the Shareholders
Agreement executed between the Plaintiff and the Defendant.
7. The Defendant ple aded that a Share Sale Agreement (“SSA1”) and
a Shareholde rs Agreement (“SA1”) was prepared by the Plaintiff’s
solicito r, Messr Zah ir Razak & Co. and was executed on 18.12.2017.
8. Pursuant to the SSA1 and the SA1, Messrs Zahir Razak & Co. vide
their letter dated 22.12.2017 had informed Messrs. Zainuddin &
Associates that:
(a) a sum of RM600,000.00 has been transferred to Messrs
Zainuddin & Associates, as solicitor for the Defendant’s
shareholder / Vendor; and
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(b) a further sum of RM1,000,000.00 was transferred to the
Defendant as advances for the settlement of the “Agreed
Liabilities” pu rsuant to item 2.1, Schedule IV of the Sh are
Sale Agreement (S SA1).
9. The Defendant had also pleaded that th e Plaintiff had purchased the
70% shares in the Defendant’s company for the purpose of a joint
venture project with a techno logy company, S ich uan Troy
Information Technology Ltd. from China for the construction of 2,000
telecommunication towers throughout Malaysia.
10. The Defendant had also pleaded that a new Share Sale Agreement
(“SS A2”) and Shareholders Agreement (“SA2”) were executed and
was dated 7.2.2018 and 15.2.2019 respectively, with no explanation
from the Plaintiff, even though the 2 agreements were executed
simultaneously,
11. the Plaintiff had defaulted the payment of the Balance Purchase
Price and the Agreed Liabilities and h ad left the transaction stale for
more than 1 years and abandon the Defendant’s company despite
of their name has been registered as the 70% shareholder in the
Defendant’s company after the transfer was affected.
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12. As a result of the Plaintiff’s defaults and actions, the Defendant
suffered severe loss and filed a counterclaim for special damages
of RM24,700,000.00, and general damages to be assessed by the
Court.
THE DEFENDANT’S SUBMISSION
The Share Sale Agreement and the Shareholders’ Agreement
13. The Defendant avers that the Plaintiff had entered into a Share
Purchase Agreement for the purchase and acquisition of 70% shares
in the Defendant’s company.
14. Simultaneously with the execution of the SSA1, a SA1 was also
executed where the Plaintiff had agreed to provide capital expenses
to finance new P rojects and the operation of the Defendant’s
company.
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15. It was in evidence that the SSA1 and SA1 were executed in
December 2017 where Messrs Zahir Razak & Co, the Plaintiff
solicito r vide their letter dated 22.12.2017 [CBD-2, page 140] had
notified Messrs. Zainuddin & Associates, the Defendant’s
shareholder’s solicitor that they had transfe rred to them a sum
RM600,000.00 being 20& of the deposit of the sale price. The letter
also enclosed a co py of the SSA1 and SA1 which was executed on
18.12.2017, without the Agreements been approved by the
Defendant’s shareholders’ solicitor a nd with terms different from
what was discussed and agreed upon (Refer to the e-mail dated
29.12.2017 at CBD-2, page 141 and the e-mail dated 19.1.2018 at
CBD-2, page 145).
16. Upon complaint and objection from the Defendant’s shareholders’
solicito r, the SSA2 and SA2 were signed between the Defendant’s
shareholders and the Defendant with the Plaintiff.
17. It was in evidence that both the SSA2 and the SA2 were signed by
the Defendant’s shareholders’ and th e Defendant and delivered to
Messrs. Zahir Razak & Co (and ackno wledged receipt) on 7.2.2018.
[CBD-2, page 146].
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18. The SSA2 was dated 7.2.2018 [CBD-1, page 28 – 50] while the SA2
was dated 15.2.2019 by the Pla intiff [CBD-1, page 65 – 92]. No
explanation was given by the P laintiff as to why the SA2 was dated
some 1 year later than the SSA2.
19. It was a clea r term in the SSA2 that the Balance Purchase Price of
RM5,400,000.00 was to be paid in the following manner:
(a) RM2,700,000.00 to be paid within 7 working days of the
Completion of the CPS and the execution of the SA2; and the
issuance of the Letter of Award of a contract known as “The
Design, Development, Delivery and Maintenance of TM Auto
Configuration Server (A CS) P latform for Telekom Malaysia”
(“Telekom ’s Letter of Award”);
(b) The balance RM2,700,000.00 within 7 days after the
completion of transfer and registration of 70% shares of the
Defendant’s shares to the Plaintiff.
[CBD-2, page 40].
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20. Messrs. Zainuddin & Associates vide their letter dated 23.2.2018
had forwarded to Messrs. Zahir Razak & Co. the shares transfer
forms together with a copy of the Telekom’s Letter of Award dated
5.12.2017 which has been duly accepted by the Defendant on
19.12.2017, and notified Messrs. Zahir Razak & Co. that all the CPs
had been complied with [CBD-2, page 148].
21. Messrs. Zahir Razak & Co. vide their e-mail and letter dated
26.2.2018 had confirm that the CPs are in order and had been
complied with [CBD-2, page 174].
22. Based on the Register of Member with the Companies Commission
of Malaysia, the transfer of the 70% shares in the Defendant’s
company was also affected on 21.5.2018 [CBD-2, page 136 - 137].
23. It was amongst the agreed terms in the SSA2 that the Plaintiff as
the Purchaser agreed to pay a sum of RM2,952,968.04 which
amount to 70% of the Defendant’s company’s current liabilities
which was disclosed and capped at RM4,218,525.77 (“Agreed
Liabilities”).
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“2. Ter m of Purchase
2.1 The Purchaser hereby agree to pay a sum of Ringgit
Malaysia Two Million Nine Hundred Fifty Two Thousand Nine
Hundred Sixty Eight and Sen Four (RM2,952,968.04) which
tantamount to 70% of the Compan y’s current liabilities which
was disclosed and capped at RM4,218,525.77 (“Agreed
Liabilities”)…”
24. It was further agre ed in clause 3.2 of the SA2 that the Plaintiff as
the Purchase r will provide funding to the Defendant’s company:
“3.2 Further funding
3.2.1 The Partie s hereby agree that they will support and act
in accordance with any decision of the Board in relation to
the any further capital requirement of the Company, in the
follo wing principles:

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3.2.1.1 SMART, at its own discretion, may consider
shareholder advances, including inter-company loan, to the
Company for the purpose of funding and meeting any capital
requirement of the Company with terms and conditions to be
decided by SMART; and/or”
The Plaintiff’s obligation to pay and provide funding under the SSA2
and SA2.
25. On top of the P laintiff’s obligation to effect payments of the Agreed
Liabilities of RM2,952,968.04, the Defendant’s avers that it was the
parties’ intention the Telekom ’s Letter of Award was to be carried
out and funded by the Plaintiff, hence was made a condition in the
SSA2.
26. Contrary to the testimony by SP-2, there was no borrowing by the
Defendant from the Plaintiff independent from the SSA2 and the
SA2. There was no personal nor commercial relationship existed
between the Plaintiff and the Defendant prior to the SSA 2 and SA2.
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It was even clear from her own admission that she was no t involved
in any of the negotiations or dealings leading to the signing of the
SSA2 and SA2 nor any of the alleged borrowings. Her evidence was
merely personal her opinion as the P laintiff’s Chief Financial officer
(CFO) and acting Chief Executive Officer (Acting CEO) based on the
documents available to her with no direct participation and/or
knowledge of the transactions and actual dealings by the Plaintiff
which was handled by SP-1, who was the CEO then, and Messrs
Zahir Raza k & Co.
“ZES: Setuju atau tidak jika saya katakana bahawa

Puan tidak terlibat dalam perb incangan antara
pembelian saham Defendan pada tahun 2017?
NADIAH: Ya, saya tak terlibat.
ZES: Saya rujuk Puan kepada perjanjian jua l beli

saham dan perjanjian pemegang saham. Saya
rujuk Puan kepada CBD1 muka surat 28 dan 65,
Kedua-dua dokumen ini merujuk kepada
perjanjian jua l beli saha m dan juga perjanjian
pemegang saham. Setuju atau tidak jika saya
katakana bahawa Puan tidan terlibat dan tidak
tahu tentang pindaan perjanjian-perjanjian ini?
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NADIAH: Ya, saya tidak terlibat dalam perjanjian ini.
ZES: Saya merujuk kepada CBD page 1. Saya

katakana Puan juga tidak te rlibat dengan
perbincangan perjanjian ini.
NADIAH: Saya tidak terlibat dalam perjanjian pada

mukasurat 1.
[Nota Keterangan, page 95, line 16-33]
27. It is clear from SP-2 own admission that all her evidence and
testimony on the alleged borrowings by the Defendant are hearsay
evidence and her own personal deduction from the information she
obtained from other people.
ZES: Puan tidak terlibat dalam penyediaan perjanjian

pemegang saham dan perjanjian-perjanjian yang
saya tanyakan tadi dalam soalan-soalan tadi,
setuju atau tidak saya katakana bahawa Puan
sebagai CFO sepatutnya tahu dan maklum
tentang kewujudan perjanjian-perjanjian
tersebut?
NADIAH: Saya dimaklumkan oleh CEO selapas daripada

perjanjian ini dimaklumkan dalam mesyuarat
management pengurusan.
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ZES: Puan kata tadi Puan dimaklumkan oleh CEO?
NADIAH: CEO
ZES: Siapa CEO pada masa itu?
NADIAH: En. Jamalil.
[Nota Keteranga n, page 95, line 35-37- page 96, line 1 - 13]
28. We submit that SP-2’s testimony and the evidence s she tendered
should be expunged and should not be accepted by the Court, since
not only that she had no prior knowledge of the Plaintiff’s
relationship with the Defendant, and that of any discussions,
agreements or promises made by the Plaintiff, but also that all the
information she had and all the testimony she gave to the Court were
all hearsay evidence.
29. It was clear from the admission of SP-1 that the Plaintiff did not g ive
any borrowing to the Defendant’s other than what has been agreed
and pursuant to the SSA2 and SA2.

15
“ZES: Can stop sharing, yes. Do you agree with me that
the Plaintiff does n ot have any power to accept or
processing any loan application from other, from
third party?
JAMALIL: No. No meaning yes, I agree, we don’t have any

power to or any approval, any license to give any
money lending activities to other parties.
ZES: Do you agree with me that as the CEO of the

company, you do not have any power to instruct
your employee to process any application for
loans?
JAMALIL: No. I have, yes. I have no power to instruct unless

with the approval of the board.
ZES: Do you agree with me that, I put it to you that

without the share sale agreement and the
shareholders agreement, the amount that has
been given to the Defendant which is claimed as
the loan by the Plaintiff, I rephrase, Yang Arif, I
rephrase. I put it to you that the amount given to
Defendant is a mere loan without tra nsaction of
the share sahe agreement and the, sorry, I dah
confused dan . Do you agree with me that without
the transaction of a share sale agree ment and the
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shareholders agreement, the amount that has
been given to Defendant is a mere loan or a mere
borro wing which is against the objective of the
Plaintiff, the nature of the business of the
Plaintiff?
JAMALIL: Yes, I agree, without the existence of the share

sale agree ment, we are not in any way will
consider or e ven go into the discussion of giving
the Defendant any loans.
[Nota Keteranga n, page 40, line 30-37- page 41, line 1 - 21]
Plaintiff’s Cause of Action under the SSA2 and SA2
30. SP-1 also in h is testimony agreed that there was no independent or
friendly borrowing by the Defendant from the Plaintiff. His evidence
is that whatever amount paid to the Defendant, or even loans was
given to Defendant pursuant to the share sa le agreement.
31. The Defendant avers that the Plaintiff’s does not have any cause of
action against the Defendant for borrowing but instead, whatever
cause of action the Plaintiff may have, it was related to the SSA2
and SA2, which was a subject matter of the suit in Shah Alam High
Court under Suit No. BA-22NCvC-245-07/2020.

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“45. Q. Dalam Pernyataan Pembelaan dan Tuntutan
Balas Defendan, Defendan telah mempertikaikan
kausa yang dibawa oleh Plaintif dan memplid kan
tentang satu Perjanjian Jual Beli Saham dan
Perjanjian Pemegang Saham yang
ditandatangani oleh Plaintif dengan pemegang-
pemegang saham syarikat Defendan. Boleh anda
terangkan samada ada tindakan berasingan
dibawa untuk perkara tersebut?
A. Ya, ada. Dalam Plaintif menafikan tentang kaitan

Perjanjian Jual Beli saham tersebut, Plaintif ada
memfailkan satu tindakan Writ Saman di
Mahkamah Tinggi Shah Alam terhadap saya dan
Encik Ahmad Shahriman dalam Saman No. BA -
22NCvC-245-07/2020. Kami memfailkan
pembelaan dan tuntutan balas yang sama dalam
tindakan tersebut terhadap Plaintif.”
47. Q. Pada pandangan anda, adakah saman Plaintif

terhadap Defendan di sini adalah betul?
A. Tidak. P laintif salah memfailkan tinda kan saman

ini berasingan dari tindakan berdasarkan
Perjanjian Jual Beli Saham dan Perjanjian
Pemegang Saham. Kesemua fakta, rentetan
peristiwa dan oblig asi timbul dari Perjanjian Jual
Beli Saham dan Perjan jian Pemegang Saham,
jadi sepatutnya tun tutan Plaintif ini difailkan dan
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termasuk dalam saman yang sama di dalam kes
saman No. BA-22NCvC-245-07/2020 di
mahkamah Tinggi Shah Alam. Sebacara logic,
kedua-dua saman di Mahkamah Tinggi Kuala
Lumpur dan Mahkamah Tinggi Shah Alam patut
dibicarakan bersama kerana kedua-dua kes
adalah sama dan fakta-fakta kes serta transaksi
adalah sama. Saya rasa pelik kenapa Pla intik
memfailkan dua saman yang berbeza dan
bercanggah antara keduanya. Saya pohon
Mahkamah untuk melihat fakta-fakta kedua-dua
kes dan memerintahkan kedua-dua saman
Plaintif ini dibica rakan bersama serentak.
[DWS -1, page 21,]
32. The Plaintiff’s proper cause of action under the S hare Sale
Agreement and the Shareholders Agreement was even admitted by
SP-1, Encik Jamalil bin Jaafar, the Plaintiff’s CEO at the material
time.
ZES: Never mind. Do you agree with me that as the

cause of action under the share sale agreement
and the sharehold ers agreement, the purchase,
for the purcha se of the shares and the
relationship as the shareholders in the
Defendant, the Pla intiff does not have any other
cause of action against the Defendant as the
Borrower?
19
JAMALIL: Yes, I agree, everything derived from the share
sale agreement, yes.
ZES: I put it to you that the cause of action of the

Plaintiff for the transaction under the share sale
agreement and shareholder agreement has been
filed b y the Plaintiff at Shah Alam High Court.
JAMALIL: I don’t have any knowledge of that.
ZES: Like the previously, I’ll be asking you about the

statement of claim. So regarding this statement
of claim, do you agree with me if I put it to you
that the statement of claim, the cause of action of
the Plaintiff in this statement of claim does not
related to share sale agreement and shareholders
agreement. I repeat the question. En. Jamalil, do
you need me to repeat the question?
JAMALIL: I understand that.
ZES: OK
JAMALIL: Can I answer in my opinion, Yang A rif?
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YA: Yes, you can.
ZES: Do you agree or not? My question is do you ag ree

or not.
JAMALIL: Fro m what I read from the statement of claim, I

agree that the statement of claim is purely for the
loan extended but everything that happened is
derived from the existence of the share sale
agreement and the shareholder agreement.
[Nota Keteranga n, page 43, line 25-37; page -44, line 1 – 10].
33. The Defendant submit and emphasis that the Plaintiff in this suit has
filed a wrong claim under a wrong cause of action and had in bad
faith filed another proceedings in the Shah Alam High Court against
the Defendant under Suit No. BA-22NCvC-245-07/2020. These 2
actions constitute multiple proceedings for similar transaction and
cause of actions. We urge the Court to take cognizan ce of the 2
actions and refer to the cause papers for the Shah Alam suit in CBD-
3.
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Relations hip between Plaintiff and Defendant related to Troy Project
34. The Defendant in their Statement of Defense had pleaded and made
reference to a business relationship and a project be tween the
Plaintiff and a technology company from China known as Sichuan
Troy which apparently was executed through its local company Troy
Information Technology Malaysia Sdn. Bhd. to build approximately
2000 telecommunication towers thro ughout Malaysia (“the Troy
Project”). S ince the Defendant have the Netwo rk Facility Licence
(NFL) and the Network Service License (NSL), the Plaintiff had
offered to acquire 70% shares and equity in the Defendant’s
company in return of the consideration sum and award of proje cts
from the Troy Project wo rth not less than RM30 millions.
“9. Q. Berapa harga yang ditawarkan oleh Plaintiff?
A. Secara dasarnya, kami tidak mahu menjual

syarikat Defendan, tetapi Pla intiff me maklumkan
bahawa mereka tidak mahu mengambil-alih
keseluruhan syarikat Defendan dengan membeli
100% saham Defendan, tetapi sebaliknya hanya
memerlukan 70% saham sahaja dalam
usahasama mereka dengan Troy untuk
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pembinaan Menara telekomunikasi mereka. Pada
peringkat awal, harga jualan yang kami
rundingkan adalah RM10 juta untuk 70% saham
tersebut. Se waktu perbincangan, P laintif telah
menjanjikan untuk melaksanakan pro jek dengan
Troy dan lain-lain projek kerajaa n melalui
syarikat Defendan. Untuk projek Troy sahaja,
Defendan telah dijanjikan untuk kontrak yang
bernilai sekurang-kurangnya RM30 juta.
10. Q. Adakah anda percaya cerita Plaintif tentang

usahasama dengan syarikat Troy tersebut?
A. Ya, saya diyakinkan bahawa Plaintif adalah anak

syarikat milik penuh Kementerian Kewangan dan
telah memasuki perjanjian usahasama dengan
Troy. Sewaktu perbincangan, saya ada diberi
Salinan Memorandum Perjanjian antara Plaintif
dengan Troy. Saya boleh faham dari kandungan
perjanjian tersebut bahawa perjanjian antara
Plaintif dengan Troy adalah untuk kontrak-
kontrak pembinaan Menara-menara
telekomunikasi. Saya juga yakin tentang
usahasama tersebut kerana berita tentang
kontrak antara Plaintif dengan Tro y ya ng bernilai
640 juta Yuan (be rsamaan USD101.69 uta) juga
ada dilaporkan oe h agensi berita antarabangsa
Reuter.”
(DWS -1, page 3-4)
23
35. SD1 in his answer to the questions above had referred to the
Memorandum of Agreement in page 1 of the Ikatan Dokumen
Bersama (Bahagian B) [CB D-1] and the Reuter report in page 24-27
[CBD-1].
36. This was confirmed by the P laintiff’s own witness SP-1 in his answer
during cross-examination that fo r the construction of the
telecommunication towers with Tro y, the Plaintiff requires the
Network Facility License, and had incorporated the terms to
facilitate for the transfer of the license from the Defendant to the
Plaintiff.
“ZES So, the object of the agreement is to build 2,000

telecommunication towers, do you agree?
JAMALIL Yes
ZES Do you agree that to build the telecommunication

towers, you are required to have a special
license, that is the network facility license and the
network service license from the Malaysian
Commission and Multimedia and Communication?
24
JAMALIL We need the network facility license only, yes, I
agree.
ZES Do you agree that at that point of time, the

Plaintiff does not have the NFP an d the NSP
license?
JAMALIL Yes, agree.”
[Nota Keterangan page 53, line 11 – 26]
ZES Ok. That the NFP and the NSP licenses are
special terms of th e purchase in the share sale
agreement?
JAMALIL It is a, we are including it as part of the terms

because we are actually in the process of
applying for the Plaintiff for both licenses. So, in
the event that we cannot get a license from
MCMC, cannot get the licenses from MCMC, then
we are including that particular clause so that we
can initiate a transfer of the license from
Defendant to Plaintiff, yes.
25
ZES Do you agree that, if I put it to you that the special
terms of the purchase of the NFC, the NFP and
the NSP mentioned in the share sale agreement
because the Plaintiff did not posess the said
licene and the licenses are required for the
purpose of building the telecommunication
towers?
JAMALIL Yes.
ZES Do you agree that the Plaintiff need these two

licenses since the licenses are required under the
memorandum of agreement between the Plaintiff
and Troy to build 2,000 towers?
JAMALIL Yes, as a backup, yes.
ZES Do you agree that without the NFP and the NSP
licenses, the Plaintiff and/or Troy cannot build the
telecommunication towers?
JAMALIL Agree.”
[Nota Keterangan, page 54, line 3 – 30]
26
37. Admissions by SP-1 on the Plaintiff’s relationship with Troy for the
telecommunication towers and the licenses required for the
Telecommunication towers project, confirmed the relevancy of the
Memorandum of Agreement with Troy and the Troy Project with the
SSA2 and the SA2 between the Plain tiff with the Defendant and the
Defendant’s shareholders.
38. Contrary to SP-1 admission, the Plaintiff, on the other hand, in their
Reply and Defense to Counter Claim had denied the existence of
the Troy Project and/or contract, which is clearly from the Agreement
at page 1 of CB D-1 , a blatant lie.
Payment from Troy
39. From the Memorandum of Agreement, the Plaintiff’s solicitor,
Messrs. Zahir Razak & Co. was the solicitor appointed to prepare
the Agreement between the Plaintiff and Troy and was the
stakeholder solicitor appointed in the Agreement to hold a
performance bond of RM20.0 million upon the issuance of Letter of
Award from the Project Owner, i.e. the Plaintiff.
27
“3. Consideration and Payment
3.1 In consideration of the Project Owner’s intention to
appoint the Contractor subject to the terms and
condition s of this MOA, the Contractor hereby agrees
to submis to SMART a sum equivalent to as follows:
3.1.1 A lump sum amount of RM1.0 million (Ringgit
Malaysia: One Million only) as Security
Deposit [Refundable by SMART] within the
period of fourteen (14) working days from thee
date of the execution of this MOA in
accordance with the terms and conditions
payable to S MART;
3.1.2. A 5.0% Performance Bond base on the Total
Estimate Project V alue of RM 400.0 millions
(RM 200,000 each for the total 2,000 site
towers) totaling to RM 20.0 million within
twenty-one (21) working days upon the
issuance of Letter of Award from the Project
Owner in accordance with the te rms and
condition s payable to SMART;
28
3.1.3 The terms and conditions payable to SMART
shall be made in the following manner:
(A) The parties agree that the payment(s)
shall be made by way of but not limited
to cashier order(s) or banker’s cheque(s)
or bank guarantee deemed favourable of
both parties and shall be made payable
to the firm of M/s. Zahir Razak & Co. as
the stakeholder;”
[CBD1, page 8-9]
40. From SP -1 testim ony, Messrs. Zahir Razak had received RM21
million from Tro y as stakeholder solicitor fo r the Plaintiff.
“ZES: That all the payment mentioned just now

amounting to RM21 million are to be paid to
Messrs. Zahir Razak & Co. as the stakeholder
solicitor?
JAMALIL: Yes”
29
“ZES: I put it to you that pursuant to the memorandum
of agreement between Troy and the Plaintiff, Troy
had paid RM21 million to the Plaintiff.
JAMALIL: Yes.
41. The Defendant th roughout their case had maintained that their
relationship with the Plaintiff were related to the Troy P roject. During
the cross-exam ination we had relate the payment claim ed by the
Plaintiff as a borrowing did not come from the Plaintiff, but were
instead come from Messrs. Zahir Razak & Co. from the performance
bond placed by Troy.
“14.Q. Adakah ada wang sebanyak RM1 juta diberi

kepada Defendan?
A. Ya, ada. Berdasarkan kepada perbincangan,

Plaintif perlu ‘execute’ pengambil-alihan 70%
saham Defendan secara segera untuk laksanakan
obligasi perjanjian dengan Troy. Dalam
perbincangan terse but juga, antara perkara yang
30
dipersetujui ialah Plaintif akan mengambil-alih
Projek-Projek baru Defendan dan bersetuju untuk
membe ri dana untuk membiayai perlaksanaan
projek dan keperluan kewangan Defendan.
Antara projek baru yang akan d ilaksanakan
adalah satu projek baru dengan piha k Telekom
Malaysia yang dikenali sebagai “The Design
Develop ment, Delivery and Management of TM
Auto Configuration Server (ACS) Platform for
Telekom Malaysia”. Memandangkan Plaintif mahu
projek ini menjadi projek pertama mereka da lam
syarikat Defendan, mereka telah bersetuju untuk
membiayai projek tersebut. Wang RM1 juta
tersebut telah diber oleh Plaintif untuk membiayai
projek tersebut.”
42. To rebut the Plaintiff’s denial that the RM1 million has got nothing
to do with the S hare Sale Agreement and the Shareholders
Agreement, SD-1 in his te stimony has explained that the RM1 million
was paid from the Performance Bond held by Messrs. Za hir Razak
& Co. for the Troy Project.
16. Q. Adakah anda yakin wang tersebut ada

kaitan dengan pembelian 70% saham Defendan?
A. Ya, semestinya. Defendan tidak mengenalik

Plaintif dan tidak mempunyai sebarang kaitan
31
dengan Plaintif. Defendan juga tidak sewenang-
wenangnya meminta wang dari Plaintif. Defendan
meminta wang tersebut dari Plaintif kerana
Plaintif yang ingin menjad ikan pro jek TM tersebut
menjadi projek pertama Plaintif dengan
Defendan. Syarat tentang projek TM ini menjadi
satu terma khas dan syarat awalan dalam
Perjanjian Jual Beli Saham oleh Plaintif. Malah
tajuk perkara dalam surat arahan Plaintif
bertarikh 15/1/2018 kepada peguam mereka
Tetuan Zahir Razak & Co. yang mengarahkan
pembayaran RM1 juta tersebut kepada Defendan
juga jelas bertajuk “CONTRACT BETWEEN
MUTIARA S MART COMPUTING SDN BHD. AND
TROY INFORMATION TECHNOLOGY
MALAYSIA SDN. BHD. – PERFORMANCE
BOND”, menunjukkan kaitan wang tersebut
dengan kontrak antara Plaintif dengan Troy, dan
bon jaminan yang dipohon oleh Defendan.”
[DWS -1, page 6-7]
43. We urge your Lordship to look at the Plaintiff’s letter to Messrs Zahir
Razak & Co. dated 15.1.2018 at page 144 of CBD-2, where it clearly
states that the RM1 million does not come from the Plaintiff, but was
from Troy fo r the troy P roject for the Performance Bond under the
Memorandum of Agreement. The purpose of the RM1 million was
also clearly states for the TM P roje ct.
32
“RE: CONTRACT BETWEE N MUTIARA SMART
COMPUTING SDN BHD. AND TROY INFORMATION
TECHNOLOGY MALAYSIA SDN. BHD. – PERFORMANCE
BOND
With regards to the above.
We hereby instructed you to release the above fund with

immediate to the following Account:
Account Name : OFISGATE SDN. B HD. (610820-A)
Amount : RM1,000,000.00
Bank : MAYBANK, KLCC Branch
Account No : 514495 109546
PURPOSE : ADVANCE FOR TM PROJE CT
We really appre ciate your assistance and cooperation.”
[CBD-2, page 144]
33
44. This was confirmed by SP-2 where she had admitted that the RM1
million wa s not from the Plaintiff.
ZES: Setuju atau tidak saya katakana bahawa tiada

sebarang dokumen dalam ikatan dokumen yang
menunjukkan ada pembayaran berjumlah RM1
juta dari akaun Plaintif sendiri kepada Defendan?
NADIAH: Untuk RM1 juta tiada daripada akaun Plaintif.”
[Nota Keterangan, page 96, line 22-31]
45. The connection and relationship of the RM1 million with the Share
Sale Agreement and the Shareholders Agreement was confirmed by
Messsrs Zahir Razak & Co, as the solicitor for the Plain tiff in their
letter dated 22.12.2017 [page 21, CBD-1 ] where the solicitor states
that the RM1 million was part of the Agreed Liabilities under the
SSA2:
“Dear Sirs,
SHARE SALE AGREEMENT AND SHAREHOLDE RS

34
AGREEMENT BE TWEEN OFISGATE SDN. BHD. AND
MUTIARA SMART COMP UTING S DN. BHD.
We re fer to the above matter.
2. Kindly be ad vised that we have transferred the sum of

Ringgit Malaysia Six Hund red Thousand (RM600,000.00)
only into your client’s account as stakeholder for the payment
of 20% deposit of the sale price as per Section 2(a), Schedule
III of the Share Sale Agreement. Further we have also
transferred to your Client the sum of Ringg it Malaysia One
Million (RM1,000,000.00) only as part payment for the
advance payment or loan for the settlement of the “Agreed
Liabilities” as per item 2.1, S chedule IV of the Share S ale
Agreement. Copies of the transferred receipt is enclosed
herewith for your further attention.”
46. The solicitor’s statement in their letter dated 21.12.2017 that the
RM1 million was part of the Agreed Liability was also agreed by SP-
1.
ZES I refer you to solicitor’s letter dated 27.12.2017 at

page 21 just now in CBD1. The lette r at page 21.
The letter at the second paragraph said ‘the RM1
million wa s as part payment fo r the advance
payment or loan for the settlement of the agreed
liabilities, is that correct?
35
JAMALIL OK, yes the sentence is referring to that, yes.
ZES The answer is yes.
JAMALIL Yes.
[Nota Keterangan, page 75, line 25-37; page 76, line 1-8]
The Plaintiff defaulted the Agreements
47. The Defendant had at all times maintain the Plaintiff failed to pay
the balance purchase price, neglected and abandoned the
Defendant’s company for long period of time, and had caused severe
loss to the Defendant. SP-2 in her testimony merely deny the
relevancy of the Defendant’s claim of the breach of the SSA2 and
SA2 in this suit, but did not dispute nor rebut the Defendant’s claims
against the Plaintiff for the default
36
48. It is cl ear fro m th e d ocument a t page 174 CBD-2, a letter from Messrs.
Zah ir Razak & Co. to Messrs Zain uddin & Associate s da ted 2 6.2.10 18,
that the Con ditio ns Pre ced en t had be en co mp lied wi th a nd fu lfill ed, a nd
the Plai ntiff i s bou nd by the terms of th e SS A2 and S A2. We refer to
the case of CIMB BANK BE RHAD v. ANTHONY LAWRE NCE
BOURKE & ANOR [2019] 1 MLRA, 599 (TAB A), at page 607:
“[26] We agree with the defendant that partie s are bound by

the terms of the contract which they entered into and that it
is the court's duty to give effect to the clear and plain
meaning of the words in the said clause. That is quite trite.
[27] The law recognises the principle of freedom of contract.

Parties to a contract are free to determine for themselves
what their obligations are. As Sir George Jassel MR said in
Printing and Numerical Registering Company v. S impson
[1874-75] LR 19 at p 465:
"... men of full age and competent understanding shall h ave

the utmost liberty of contracting, and that their contracts
when entered into freely and voluntarily shall be held sacred
and shall be enforced by Courts of justice. The refore you
have this paramou nt public policy to conside r - that you are
not lightly to interfere with this freedom of contract."
[28] It is also trite that an agreement must be construed by

the words used in the agreement and the court is not
empowered to improve upon the instrument which it is called
upon to construct. This we have stated in Berjaya Times
Square Sdn Bhd v. M-Concept Sdn Bhd [2009] 3 MLRA 1;
[2010] 1 MLJ 597; [2010] 1 CLJ 269 where it was reiterated:”
37
Advances to the Defendant under the SSA2 and SA2
49. The Defendant’s obligations fo r advances were subjected to and not
independent from the SSA2 and SA2. We relied on sections 32 and
33 of the CONTRACTS ACT 1950 (TAB B):
“Contingent contract
32. A “contingent contract”is a contract to do or not to do

something, if some event, collateral to the contract, does or
doesn not happen.
Enforcement of contracts contingent on an event

happening
33. (a) Contingent contracts to do or not to do anything if

an uncertain future event happens can not be enforced by law
unless and until that event has happened.
(b) If the event becomes impossible, such contracts

become void.”
38
50. The Defendant re fer to the case of NATIONAL LAND FINANCE CO-
OPERATIVE S OCIETY LTD V SHARIDAL S DN BHD [1983] 2 MLJ
211 (TAB C) in support of the proposition that the SSA2 and SA2
was a conditional contract subject to the performance of the
co nd ition s preced en t. Upo n the ful fi lment of the con ditio ns p reced ent,
the Plaintiff wa s du ty bo und u nde r the con tra ct to pa y the Ba lance
Purch ase Pri ce . Likewise, the De fend an t’s o blig ation s in respe ct of an y
co mpan y a dvances wa s collateral to the payment of the full purchase
price.
51. Even though the SA2 was dated 15.2.2019, some 1 year later after
the SSA2 dated 7.2.2018, both the SS A2 and the SA2 were executed
simultaneously, and was returned to the Plaintiff’s solicitor, Messrs
Zahir Razak & Co. as the purchaser’s solicitor, both the SSA2 and
SA2 were binding to the Plaintiff.
52. SP-1 in his answer during the cross-examination had admitted that
both the agreements were refe rred to in Zahir Razak & Co. letter
dated 22.12.2017 as has been signed on 18.12.2017, but has no
knowledge as to why the SA2 was dated 15.2.2019.
39
“ZES Are these the documents referred in the solicitor,
in the Plaintiff’s solicitor’s letter dated
22.12.2017 as the agreement signed on
18.12.2017?
JAMALIL The share sale agreement, yes. And the

shareholders agreement also yes but I’m not sure
why it is dated on 15.2.2019.”
[Nota Keterangan, page 49, line 18 – 23].
53. The De fe nd a nt h ad plea ded the existen ce of the SSA2 and the SA2,
an d the transaction s conte mp late d thereto a s the b asis o f rel ation ship
be twee n th e Pla intiff and th e Defe nda nt . Th e Defen da n t furthe r avers
that the provisi ons of the SS A2 and th e SA2 is rele va nt and sh ould be
the prope r cau se of a ctio n in this suit. Th e SS A2 an d the SA2 have
be en pla ce u nde r Part B o f th e Co m mon Bun dle of Do cu me nts a nd
evide nces in respect thereo f h as b een p ro du ced both b y the Pl ainti ff’s
witn esse s an d th e Defe nda nt’s witnesses. The e xi sten ce, au then ticity
an d con tents o f the SSA2 an d the SA2 we re al so n ot disputed b y the
Plaintiff. W e re fer to the case of MELAWANGI SDN BHD V TIOW
WENG THEONG (2019) 2 CLJ 655 CA (TAB D).
40
“[27] In the circumatances, one of the key questions for us
to determine is whether the plaintiff h ad agreed to place the
e-mail in Part A of the Agreed Bundle of Documents.
[28] The answer to this factual question must be

approached on the basis of what was precisely agreed by the
litigating parties. All this come out during the proceedings
before the learned JC and meticulously recorded in the notes
of proceedings that formed part of the Appeal Records
(“A R”). At the hearing before us, in responding to the
questions posed by us, learned counsel for the plaintiff took
us through the relevant parts of the notes of proceedings to
Part A and that in truth the plaintiff wanted to remove the e-
mail from Part A and to move it to Part B of the Agreed Bundle
of Documents. On the basis of the factual matrix in the
present case, in our opinion, this line of argument has merit.”
54. The Plain tiff in th eir Statemen t of Clai m d id not plea d the S SA2 and the
SA2 , an d atte mp ted to distin gui sh thei r claims and thei r cau se of acti on
in th is suit sep arate fro m th e Sh a re Sale Agree me n t an d the
Shareh olde rs Agree me nt, e ve n th oug h a lmost the en tire of the SP1 ’s
an d SP2 ’s evide nce mad e referen ce to a nd were pre mise d o n the SSA2
an d the SA2,an d th e chain of e ve nts rel ated th ereto.
41
55. Applyin g the pri nciples i n MELAWANGI SDN BHD V TIOW WENG
THEONG, the De fe nda nt avers that th e en tire of the ple adin gs and the
evide nce shou ld be looke d at as a wh ole:
“[39] It is very important to understand the context in wh ich

para 13 is pleaded. The pleading must be looked at as a
whole. Admittedly, the manne r and style of the plaintiff’s
pleading may render itse lf open to critism. Still, reading it as
a whole and in its proper perspective, in our judgment, by
paras 12 to 15 of the amended sta tement of claim, the
plaintiff has specifically pleaded and refe rred to all the
allegations made by the defendants through the e-mail and
as such the plaintiff’s pleaded case is not limited and
confined to only one alleged defamatory statement in the e-
mail”.
56. Irrespe ctive that th e SS A2 a nd th e S A 2 were d ated 1 ye a r apa rt, we
re fer to the case of MALAYAN BANKING BHD. V AGENCIES
SERVICE BUREAU SDN. BHD. & ANOR (1982) CLJ REP 217 (TAB
E), where the FC held that the legality of the document does not
depend on whether it is stamped or not. That goes to admissibility.
Once a document is stamped, no matter how late, provided the
proper penalty is paid, it is admissible - s.51(1)(d) of the Stamp Act
1949.
42
57. It is the cornerstone of legal jurisprudence that courts should be
slow to find illegality in depriving the government of its revenue and
strike down commercial transactions. The Stamp Act 1949 con ce rn s
on ly th e instru me nt an d not the tran sa ctio n. The S up re me Court in
UNITED MALAYAN BANKING CORP BHD V PEKELILING
TRIANGLE SDN BHD (1991) 1 CLJ REP 474 SC (TAB F), inter-alia,
observed
"...we ought to bear in mind the above-quoted rules and that

the object of the Act relating /o stamp duties is to ra ise
revenue by requiring documents of certain kinds to be
stamped. In other words, the Stamp Act tax documents and
not transactions...”
Termination of the SSA2 and SA2
58. SP-2 in her answer to question 5 a ttempted to distinguish their
present suit from the SSA2 and the SA2, and referred to the
Defendant’s letter dated 25.6.2019 at page 131 -132, CBD-1, while
SP-1 on the other had at page 43 and 44 of the Nota Keterangan
43
admitted that the alleged loan were related and arose fro m the SSA2
and SA2. By SP -1 admission, the we avers that the loan were part
of the SSA2 and SA2 and would not have been gra nted if not
because of the SSA2 and the SA2.
59. The Defendant’s letter dated 25.6.2018 referred to by S P-2 in her
answer no. 5 made reference to the Plaintiff’s letter dated 10/6/2019
and the meeting held at the Plaintiff’s office on 25.6.2019.
“Dear Sir,
PROPOSE D SETTLEME NT FOR OFISGATE SDN. BHD

(OFISGATE ”) ACQUISITION
Thank you for your letter dated 10 June 2019 and the meeting
held at your office on 25 t h June 2019.”
60. The letter also referred to the Defendant’s letter dated 16.5.2019,
where the Defendant had accepted the Plaintiff’s proposal to
terminate the SS A2 and the SA2. The Defendant’s letter dated
16.5.2019 is availa ble at page 131, CBD-1, where the Defendant
44
had written directly to SP-2 and emphasized the Defendant’s
concern and disappointment to the P laintiff over the Plaintiff’s delay
to pay and complete the purchase, and the severe disruption caused
by the Plaintiff.
“Dear Pn Wan,
ACQUISITION S TATUS OF OFISGATE SDN. BHD.
Pursuant to our recent meeting on April 11 2019 at Mutiara

Smart office, we would like to bring our attention our grave
concern over the stale status of the acquisition.
We have been advised by our solicitor that they had on

numerous occasions enquired into the status of the
acquisition from your solicitor and has yet to re ceive any
reply from them.
During the April 11 meeting we have raised our concern over

the delay in the payment of the Balan ce Purchase P rice and
the advances stipulated in the term of purchase, and the due
completion of the acquisition status by Mutiara S mart…
45
During the said meeting also, Mutiara Smart through your
solicitor has proposed for the dissolution of the cu rrent Sales
& Purchase agreement. We have informed Mutiara Smart that
officegate was open for any options to settle the outstanding
issues amicably. Nevertheless, we have not received any
feedback rega rding the proposal.
There has been delay of mo re than 1 year and had cau sed
severe disruption in the operation and finance of the
company, we have no option but to seek for alternative
funding to cover operational expenses and overheads,
including further advances from directors/shareholders and
applying for banking facilities. To our dismay, we were
informed by our banker that there were an AMLA alert status
over Mutiara S mart and they would not be able to approve
any banking facility to Ofisgate due to Mutiara Smart’s
holding in Ofisgate.”
61. The Defendant further refers to the minutes of the meeting held at
the Plaintiff’s office on 11.4.2019 at page 108 – 109, CBD-1.
According to the minutes, the matters discussed at the meeting
were:
i. Outstanding balance of share purchase price;
ii. MSSB’s representative at Ofisgate management; and
iii. Settlement of advance payment.
46
62. The minutes further recorded:
“Razak: Razak proposed 2 settlement method (i) P ropose

deed of settlement to revert the 70% shares to Sha msul &
Shahriman; or (ii) Continue the purch ase subject to further
costing to be presented by Ofisgate.
Zainuddin: Remarks by Zainuddin, previous payment to

Shamsul & Shahriman was deposited back to the Company.
Comment on the option to proceed with share purchase,
whether MSSB has the capacity further to assist financially
and comply with financial obligations.
SH: Clarificationby Shamsul, previous payment of RM1.7

million were all paid to creditor with invoices even not paid
directly by MSSB to creditors.
Zainuddin: Propose MSSB confirm the two options

suggested by Razak.
2.0 Next Action.
Razak: Will discuss internally with MSSB and come up with

recommendation after taking into consideration further cost
in the event MSSB decides to pursue further.”
47
63. It was obvious from the minutes of the meeting that the payment of
RM1.7 million were paid to the creditors as part of the term of
purchase under the SSA2. Such fact was disclo sed, acknowledged
and recorded in minutes, and was not objected nor disputed by the
Plaintiff. It is also our submission that all discussions and
correspondences between the Pla intiff and the Defendant were
premised on the S SA2 and the SA2.
64. We aver that the Plaintiff’s denial of their cause of a ction under the
SSA2 and SA2 is a mere denial and an afterthought devised to hide
their failure to complete the purchase of the Sale Shares under the
SSA2. In SPM MEMBRANE S WITCH S DN BHD V. KERAJAAN
NEGERI SE LANGOR (2016) 1 CLJ 177 (TAB G), the Federal Court
held that the reply was not the immediate response of the appellant
but a mere afterthought. The conduct and the immediate response
by the appellant re vealed that the appellant had readily accepted
the termination and appeared to have been aware as to why the
agreement was terminated.
48
65. Not only that the Plaintiff had failed to respond to the Defendant’s
variou s letters on the Plaintiff’s failure to pay and complete the
acquisition, but the Plaintiff also failed to explain th e various
documents produced and referred by the Defendant, and the
relationship with various parties connected with the transactions. In
DAVID WONG HON LEONG V NOORAZMAN ADNAN (1995) 4 CLJ
155 (TAB H) where the CA said.
" During a rgument, we registered our surprise at the learned

judge’s reluctance to enter judgement for the sun of RM100,
000. After all, the appellant had FAILED TO RESPOND to the
letter of 17 December. If the re had b een any agreement as
alleged, it is reasonable to expect a PROMPT and
VIGOUROUS DENIAL. But as we have pointed out, there was
NO RE SPONSE whatsoever from the appellant" (emphasis
added).
Absorption of Key Personnel
66. Likewise, even though SP-1 had stated that the acquisition of 70%
of shares in the Defendant’s company will involves the change of
control in the Defendant’s company, management and majority
shareholders in the Defendant’s company [Nota Keterangan, page

49
76, line 32 – 37], it does not confer any rights to the Pla intiff to take
away the Defendant’s key personnel, especially those involved in
the tower construction, out of the Defendant’s company into the
Plaintiff’s company as permanent staff before the SSA2 was
completed [Nota Keterangan, page 69, line 29 - 31].
67. The Defendant avers that the Plaintiff not only had defaulted the
SSA2 and SA2, and neglected the De fendant’s company, but also
had taken away the Defendant’s key personnel and staffs, causing
further loss to the Defendant.
68. SP1 admitted in his testimony that after the share sale agreement
was executed, the Plaintiff had absorbed key personnel from the
Defendant that involved in the tower construction as the Plaintiff’s
permanent staffs.
ZES Do you ag ree that after the share sale agreement

has been executed, En. Zaki Bin Dimyati has een
appointed as Chief Corporate Officer in the
Plaintiff’s company.
50
JAMALIL Chief commercia l, yes.
JAMALIL Chief commercial. And we also, I just want to add

on, we also absorbed a few key personnel from
Ofisgate that involved in the tower construction
as our permanent staff in Mutiara not only En.
Zaki.
69. SP-1 further confirmed that the Plaintiff had taken away the
Defendant’s key personnel immediately after the SSA2 and SA2
were executed but before the purchase was completed.
ZES Answered by you in one of the questions asked

by me, you had mentioned that the Plaintiff’s
company had also absorbed several other key
personnel from the Defendant in the Plaintiff’s
company. Am I correct?
JAMALIL Correct.
ZES Do you agree that the absorption of the

Defendant’s key personnel was done before the
share acquisition was completed?
51
JAMALIL I have to check on that if I am not mistaken they
being absorbed, they were being absorbed in
March or April 2018. I think after the execution of
–
ZES The sale acquisition not completed.
JAMALIL I think after the execution of share sale

agreement.
ZES After the exe cution of the share sale a greement.
JAMALIL Yes.”
Transaction related to various 3 r d P arties
70. The Defendant invite your Lordship to take cognizance and judicial
notice that there were several court actions has been filed against
the Plaintiff, and that the Plaintiff had been wound up on 25.5.2022
52
under the Winding-up Petition No. WA-28NCC-914-12/20 21, on the
petition b y Num ix E ngineering Sdn. Bh d. Upon being wound up, the
Plaintiff had loss its legal status and could not maintained this action
without consent from its liquidators [Emphasis added].
71. We further invite this Honourable Court to take cognizance and
judicial notice of the Court of Appeals unanimous decision in Rayuan
Sivil No. W -02(NCvC)(W ) – 1197-07/2019 vide and Order dated
24.8.2021 favouring Numix Engineering Sdn. Bhd. and awarded
damages of RM10,701, 535.05 to be paid by the Plaintiff to Numix
Engineering Sdn. Bhd. for breach of contract [DWS-1, Answer 37,
page 15 – 16], contrary to SP -1 testimony that the deal was
abandoned and that there was no share sale agreement entered with
Numix Engineering Sdn. Bhd. [Nota Keterangan, page 66, line 8 –
22; page 27, line 23 – 29].
72. The Defendant also invite this Honourable Court to take cognizance
and judicial notice that the Plaintiff was also sued by Troy and
injunctions were obtained by Troy against the Plaintiff. SD4 in his
testimony also has given evidence that the plaintiff had been sued
by Troy.
53
73. Apart from the 2 suits mentioned above, the Defendant had also
produced the testimony of SD3, from STS Stone Hill (M) Sdn. Bhd.
who had given her evidence that her company was promised a
contract to construct 100 telecommunication towers for the
Defendant. SD3 in her Witness Statement at answer no. 31 had
stated that she had seen a letter under the Plaintiff’s letterhead
signed by SP1 on the project. Her evidence was collaborated by SD1
at Answer no. 38 of his Witness Statement WSD-1.
74. All these actions are proofs of the Plaintiff’s reputations a nd justified
the Defendant’s claim that the Plaintiff has a bad record and its
holding in the Defendant’s company had affected the Defendant’s
name and application for banking facilities.
The Defendant’s Counterclaim
75. Due to the Plaintiff’s delay and default of the SSA2 and SA2, the
Defendant was left in a stale mate position and had suffe red severe
losses. In SP1 Witness Statement, the Defendant had claimed

54
against the Plaintiff specific damages amounting to RM 23,160,
000.00 and general damages of RM6 ,237,890.00 for the audited
losses and RM 30, 000, 000.00 from the Troy Project promised by
the Plaintiff to the Defendant.
76. As a resu lt of the Plaintiff’s breach, the Defendant had suffered
losses and counter claimed as follows:
(a) Loss of income from te lecommunication companies
amounting to RM8.96 million;
(b) Loss of income from government projects amounting to RM6
millions;
(c) Loss of contract siphoned out from the Defendant’s company
by the staffs amounting to RM7 million;
(d) Loss of capital expenses and shareholders advances
amounting to RM1.2 million, and continuing;
(e) Legal actions by creditors;
(f) Loss of reputation and confidence from clients;
(g) Loss of key personnel and trained staffs;
(h) Being blacklisted b y the banks and financial institutions.
55
77. The Defendant’s losses we re proved in the Defendant’s Income
Statement 2019 at page 15 SBD-C, where the Defendant had a high
Total Project Value at RM 7, 968, 442.40 [CBD4, page 15] but
suffered higher net loss for 2019 of RM -4, 394, 526.23 [CBD4, page
17]. The loss was attributed mainly to the increased Project
Consultant / Sub-Contractors’ fee of RM 5, 266, 970.41 due to the
Plaintiff’s action of taking away of the Defendant’s key personnel
and trained staff as admitted by SP1.
78. By comparison, the Defendant’s Income Statement 2020 at page 18
recorded a lower Total Project Value at RM 6, 941, 271.49 [CBD4,
page 18], but lesser net loss of RM -1, 515, 149.02. [CBD4, page
20]. This can be seen was attributed to lower Project Consultant /
Sub-Contractor fee of RM 804, 951.28 for the year 2020.
79. The Defendant’s Report and Financial Statement for the period from
1 s t July 2017 until 31 s t December 2018 [CBD4, page 21] showed
that for the Defendant’s revenue for 2017 was RM 11, 2 53,181.00
and for 2018 was RM 21, 335, 790.00 [CBD-4, page 33].
56
80. The Defendant’s Report and Financial Statement for the period
ended 31 s t December 2019 [CBD-4, page 69] showed significant
reduction of the Defendant’s revenue for 2019 from RM 21, 335,
790.00 in 2018 to merely RM 8, 014, 442.00 in 2019, with record
loss after taxation at RM -4, 394, 526.00.
81. Due to the Plaintiff’s default, abandon ment and uncertainty caused
by the Plaintiff, the Defendant had suffered a reduction and loss of
RM 13, 321, 348.00 in ju st one year from 2018 to 2019.
82. The Defendant had also produced its B ank Statements for the entire
year of 2018 and 2019 in CBD-5 and CBD-6.
83. We submit that the Defendant’s losses of RM 23, 160, 000.00 were
unchallenged. The y were a direct consequence of the breach
envisaged under the SSA2. On top of those losses, the Defendant
also suffered losses of the 30% of the 2,000 telecommunication
towers in the Troy Project promised to the Defendant, i.e., 600
telecommunication towers valued at RM200,000.00 each, totaling to
RM 120, 000, 000.00, with total profits of at least RM30 millions.
57
84. The Defendant refers to Section 74 of the CONTRACTS ACT
1950 (T AB I):
”Compensation for loss or dama ge caused by breach of

contract
When a contract has been broken, the pady who suffers by

the breach is entitled to receive , from the party who has
broken the contract, compensation for any loss or damage
caused to him thereby, which naturally arose in the usual
course of things from the breach, or which the padies knew,
when they made the contract, to be likely to result from the
breach of it.
Such compensation is not to be given for any remote and

indirect loss or da mage susta ined by reason of the breach. ”
85. Section 75 of the CONT RACTS ACT (CA) 1950 states:
”When a contract has been broken, if a sum is named in the

contract as the amount to be paid in case of such b reach, or
if the contract contains any other stipula tion by way of
penalty, the party complaining of the breach is entitled,
whether or not actual damage of loss is proved to have been
caused thereby, to receive from the party who has b roken the
contract reasonable compensation not exceeding the amount
so named or as the case may be, the penalty stipulated for.
” (emphasis added)
58
86. The Supreme Court in BANK BUMIPUTRA MALAY SIA BHD.
KUALA TERENGGANU V. MAE PERKAYUAN S DN. BHD. &
ANOR[1993] 2 CLJ 495 (TAB J) held that section 74 is declaratory
of the common law rules as to assessment of damages in contract
enunciated in Hadley v. Baxenda/e [1854]9 Ex, 34 (see also Tara
Raja ratnam v. Datuk Jagider Sing & Ore y19gzj cL J Rep 892; [1984]
I MU 175; Nikmat Masyhur Sdn Bhd v. Kerajaan Negeri Johor Darul
Ta’zim [2008) 9 CU 46).
87. It is trite law that the general principle for the assessment of
damages is compensatory. The Federal Court in DATUK MOHD ALI
BIN HJ ABDUL MAJID & ANOR & CO V. PUBLIC BANK BHD
[2014] 6 CLJ 269 (TAB K); at page 475 held that the object of an
award o f damages is to g ive the claimant compensation for the
damage, loss or injury he has suffered. The Apex Court quoted the
principle as to damages enunciated by Lord B lackburn in Living stone
v. Rawyards Coal Co [1880] 5 App Cas 25, who said that the
measure of damage is ”.... that sum of money which will put the party
who has been injured, or who has suffered, in the same position he
would have been in if he had not sustained the wrong for which he
is now getting his compensation or reparation.
59
88. In TOEH KE E KE ONG V TAMBUN MINING COMPANY LTD (1968)
1 MLJ 39 (TAB L), the FC held, summarising the rule in Hadley v
Baxendale, that in contract, the measure of damages may fairly and
reasonably be considered as either arising naturally i.e. according
to the usual course of things, from the breach.... or such as may
reasonably be supposed to have been in the contemplation of both
parties at the time the contract was made. The plaintiff in other
words is entitled to loss of his bargain. The object is to put the
plaintiff in the position as if the contract had been performed
(Macgregor on Contract 13 th Edition, Page 21).
89. Section 75 was con sidered by the Federal Court in SELVA KUMAR
MURUGIAH V THIAGARAJAH RETNASAMY (1995) 2 CLJ 374 (TAB
M) where the parties entered into an a greement to pu rchase a clinic
for RM120.000 of which a sum of RM12.000 was paid on signing the
agreement, thereafter a further sum of RM48.000 was paid, leaving
the balance of RM60.000 to be paid by monthly instalments at
RM4.000 each for 15 months. A total sum of RM96.000 was paid but
the appellant as buyer refused to pay the balance. The respondent
as vendor fo rfeited the entire sum of RM96.000 and the forfeiture
60
was upheld by the High Court. On appeal, the Federal Court held
hat only the sum of RM12.000 was forfeitable a s earnest money or
deposi and ordered the refund of RM84.000 to the appellant, the
buyer. Peh Swee Chin FCJ, in delivering the judgment of the court,
held that the plaintiff who is claiming for actual damages in an action
for breach of contract must still prove the actual damages or the
reasonable compensation in accordance with the settled princip les
in Had ley v Baxendale [1854] 9 Exch 341.
90. In JOHOR COASTAL DEVELOPMENT SDN. BHD. V
CONSTRAJAYA SDN. BHD. (2009) 4 CLJ 569 (T AB N), the FC
had this to sa y about the applica tion of s. 75;
”(3) It is trite law that it is up to a plaintiff to prove his loss.

The respondent was the plaintiff in the High Coud that sought
to claim the moneys it paid tile resp ondent after the latter
terminated the SPA. Therefore, th e burden lay on the
respondent to prove its loss and not on the appellant which
was the innocent party. Even if wrong the finding as to who
the actual plaintiff was, Selva Kumar decided that where the
court found it difficult to assess damages, the court ought to
award substantia l damages as opposed to nominal damages
which were reasonable and fair according to good sense and
fair play.
61
The appellant could keep the first payment or 12 % of the
purchase price pursuant to cl. 8.2(b) SPA. The subsequent
payment of instalments up to the time of default should also
be awarded to the appellant as being a reasonable amount in
view of the nature of the project and its abandonment by the
respondent three years after the SPA was signed. The finding
was also based on illus, (f) to s. 75 CA.
The parties specifically agreed under cl. 8.2(b) of the SPA

that in the event of a breach of the SPA, all the moneys paid
thereunder would be forfeited. A sum was c/ear/y named as
the amount to be paid in case of such a breach. The appellant
was there fore entitled to receive from the respondent who
had broken the contract a reasona ble comQensation not
exceeding the amount so named, whether or not actual
damaqe or loss was proved “temphasis added)
91. In the recent decision of WONG KIAN WAH V NG KIEN BOON
(2018) 1 LNS 1013 (TAB O), the CA held;
[5] (a) In the instant case, there is more than sufficient

material to attract sections 17 and 58 (1) of the Evidence Act
1950 as well as Order 27 of the Rules of Court 2012, wh ich
relate to admissions as well as the duty of the coud to ENTER
JUDGEMENT for the admitted sum. (b) The failure of the
court to consider both these provisions in the judgement itself
compromises the integrity of the decision-making process
62
resulting in a MIS CARRIA GE OF JUSTICE.. .. . .. [6) On the
face of A DMITTE D FA CTS, it was plainly wrong for the
learned judge to conclude that the plaintiff had not pro ved
the case. Admissions can come before the writ is filed or
during the case management or even during the trial. The
pleading rules play little significance when parties to an
action actually admit the sum claimed and such admission
may even be contrary to the pleaded case...." (emphasis
added)
CONCLUSION
92. The Pla intiff’s claim s for repayment of loans we re premised on
the Share Sale Ag reem ent and the Shareholders Agreement, as
evident from the d ocuments and the minutes of the meeting held
at the P laintiff’s office on 11.4.2019. The Pla intiff did n ot plead in
its pleading the Share Sale Agree ment and the Sh areholders
Agreement as its cause of action, h ence has filed a wrong su it
and has no independent cau se of action separate from the Share
Sale Agreement a nd the Shareholders Agreement.
63
93. As admitted by SP-1, the advance s claimed by the Pla intiff in this
suit were ad vance s g iven pursuant to the Share Sale Agreem ent
and the Shareholders Agreement and will not be given if there
were no such agreements signed between the Pla intiff and the
Defendant.
94. The Plaintiff had filed a separate suit at Shah Alam High Court
against the Defendant’s shareholders for the Share Sale Agreement
and the Shareholders Agreement. This suit constitutes multiple
proceedings and without proper cause of action.
95. SP-2 was not involved in any discussion with the Defendant and has
no knowledge of th e Share Sale Agreement and the Shareholders
Agreement. Her e vidence was purely hearsay and ought to be
expunged.
96. On top of all, the Plaintiff has been wound up and losses all its legal
standing and locus to maintain this action. The Plaintiff cannot
proceed to maintain this action un less it has obtained sanction and
consent from the liquidators.
64
97. On the Defendant’s defense and counterclaim, the Defendant had
specifically pleaded the Share Sale Agreement and the
Shareholders Agreement in its defenses and that all the alleged
communications, payment and/or advances were made pursuant to
the Share Sale Agreement and the Shareholders Agreement.
98. The Defendant had also pleaded and proven that the Plaintiff had
defaulted the Share Sale Agreement and the Shareholders
Agreement and had caused severe loss to the Defendant.
99. Pursuant thereto, the Defendant pray for the Plaintiff’s be dismissed
with cost, and the Defendant’s counter claim be allowed with cost.
The Defendant pray for special damages of RM23,160,0 00.00 and
general damages to be assessed.
Dated th is 2 4June , 202 2
……………………………….
Solicitor for the Defendant
65
Th is Def end an t ’ s W rit ten Su b m is si o n is f iled by M es s rs . Z a ir us & Dor a , s olc ii tors
for th e D e fe nda nt , w hos e a ddr es s of s er v ic e is at No 3 5 B , J a lan A lfa F U6 /F , P us at
P er da ng ang a n S uba ng P er m ai, 401 50 S h ah A la m , S ela ngor .
Te l: : 03- 784 6 72 49 / 77 3 4 08 4 6
Fax : 03- 272 6 89 27
E- ma il : z d. law /s a @ g ma i l.c o m
Re f. : Z D/ L/ S /9 6/5 2 1/O F I S G AT E
66

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WA-22NCC-429-09/2020

Encl No. 106

DALAM MAHKAMAH TINGGI DI KUALA LUMPUR

DALAM WILAYAH PERSEKUTUAN, MALAYSIA

GUAMAN NO.: WA-22NCC-429-09/2020

MUTIARA SMART SDN. BHD.

OFISGATE S DN. BHD.

************************** ************ *****************************************

DEFENDANT’S WRITTEN SUBMISSION

Filed by Defendant’s Solicitor:

1. This is the Defendant’s written submission after the full trial.

2.12.2021 and 20.12.2021.

(1) Bundle of Pleadings – Marked “IP”;

(2) Agreed Facts – Marked “A”;

(3) Issues to be Tried – Marked “B”;

(4) The Plaintiff’s Summary of Case – Marked “C”;

(5) The Defendant’s Summary of Case – Marked “D”;

(6) Common Bundle of Documents (Part B ) – Marked “CBD-1”;

(7) Additional Common of Bundle of Documents (Part B ) – Marked

(9) The Defendant’s A dditional Bundle of Documents (Volume 1) –

(10) The Defendant’s Additional Bundle of Documents (Volum e 2)

(11) The Defendant’s Additional Bundle of Documents (Volum e 3)

4. In the course of the trial, a total of 6 witnesses were called, 2 from

the Plaintiff and 4 from the Defendants, as follows:

Witness Statement was marked “PWS-1”;

2) – SP-2 Witness Statement was marked “PWS-2”;

(3) The Defendant’s 1 s t witness, En. Shamsul Bahari bin Mokmin

(SD-1) – SD-1 Witness Statement was marked “DWS-1”;

2) – SD-2 Witness Statement was marked “DWS -2”;

(5) The Defendant’s 3rd witness (Subpoena witness), Pn.

Noorshuhada binti Ahmad (SD-3) – S D-3 Witness Statement was

(6) The Defendant’s 4 t h witness (Subpoena witness), En. Amir bin

Abd Rahman (SD-4) – SD-4 Witness Statement was marked

THE PLAINTIFF’S CLAIM

of RM1,837,500.00 being the outstanding sum under the loan made

(1) RM1,000,000.00 (the 1 s t loan);

(2) RM250,000.00 (the 2 n d loan);

(3) RM500,000.00 (the 3 r d loan);

6. The Defendant in their Statement of Defense had pleaded that all

payments received by the Defendant from the Plaintiff were payment

pursuant to the Share Sale Agreement and the Shareholders

Agreement executed between the Plaintiff and the Defendant.

a Shareholde rs Agreement (“SA1”) was prepared by the Plaintiff’s

their letter dated 22.12.2017 had informed Messrs. Zainuddin &

(a) a sum of RM600,000.00 has been transferred to Messrs

Zainuddin & Associates, as solicitor for the Defendant’s

shareholder / Vendor; and

Defendant as advances for the settlement of the “Agreed

Liabilities” pu rsuant to item 2.1, Schedule IV of the Sh are

Sale Agreement (S SA1).

70% shares in the Defendant’s company for the purpose of a joint

venture project with a techno logy company, S ich uan Troy

Information Technology Ltd. from China for the construction of 2,000

telecommunication towers throughout Malaysia.

(“SS A2”) and Shareholders Agreement (“SA2”) were executed and

was dated 7.2.2018 and 15.2.2019 respectively, with no explanation

from the Plaintiff, even though the 2 agreements were executed

more than 1 years and abandon the Defendant’s company despite

***************