Saturday, 22 October 2016

Kamdar: "It's a messy family affair" (5)

I wrote before about this rather strange case.

A new judgment can be found here.

Some snippets (emphasis mine):

[48] The evidential record further disclosed that some years later vide letters dated 20 February 2014 and 7 April 2014 addressed to Bursa Malaysia Berhad, Yap Kim Hong disclosed that he had acted as a nominee in the acquisition of the 4,801,920 undersubscribed shares at RM1.20 per share. The cost amounted to RM5,762,304-00, which monies emanated from the plaintiff’s account. Yap Kim Hong further claimed that he was approached by Bipinchandra to utilise his name.

[49] He added in his second letter that the monies from dividends for 2006 and 2007 were transferred to Bipinchandra. The shares were later sold at a price of RM2,800,000-00 and Yap Kim Hong maintained that he was told to transfer the KGMB shares to another broker. The sale proceeds were to be given to Bipinchandra. On the latter’s instructions however, Yap Kim Hong passed the sale proceeds in cash to Jayesh. There is a picture to support this statement, showing the boot of a car with large quantities of cash contained in a luggage bag.

[50] Bipinchandra denies that Yap Kim Hong was his nominee. He further denied giving instructions to Yap Kim Hong relating to the proceeds of sale of the KGMB shares.

[53] The second cheque was issued as a ‘cash’ cheque with the “A/C Payee Only” crossing cancelled off by the cheque signatory, namely Bipinchandra.

[54] The reverse side of the cheque contained two signatures, identified to be that of Bipinchandra and Jayesh. There was also a handwritten confirmation stipulating that PW-1 of the plaintiff had been contacted with regards to the encashment.

[55] Jayesh maintains that he was called to the bank purely to sign on the reverse side of the cheque, and that he did not take the cash of proceeds of RM2,420,000-00. He maintains that it was Bipinchandra who received these proceeds.

[56] Bipinchandra stated that he did not take the proceeds of the cash cheque, but that Jayesh did so. He maintained that he acted on the instructions of HM Kamdar in relation to this cheque.

[57] It is contended for the plaintiff that either Bipinchandra or Jayesh took the cash proceeds of this cheque. The learned trial judge did not make any finding on this issue. It was simply not addressed. The reason appears to be that this transaction was characterized as a loan for HM Kamdar.

[59] Jayesh testified that pursuant to a family meeting he had advised members of his family who were also shareholders in KGMB that he needed monies for the listing exercise in order to ensure that the price of KGMB shares on listing would be above RM1-00 per share. He further claimed that this sum was utilized for listing expenses.

[62] It is pertinent that in the course of presenting the costs of the listing exercise to the board of directors of KGMB, which amounted to RM2.23 million, this sum of RM580,000-00 did not feature as a part of the expenses. However Jayesh maintained in his testimony that this was because it was a ‘family matter’, whereby he had promised the shareholders a price above RM1-20.

[72] In this context, it is relevant that there were no payment vouchers or any supporting documents available to support the debit entry in the general ledger. This runs awry of the normal accounting practice in the plaintiff which requires a payment voucher and other supporting documents such as an invoice stipulating the purpose of the payment etc. This comprised a part of PW-1 testimony.

[73] There is no record of the alleged verbal instructions of HM Kamdar in relation to the utilization of these monies. Neither is there any board approval for this use of the sum of RM8,842,306-00.

[87] The importance of this letter is that one of the defendants here expressly admits that although these withdrawals were described as a loan to HM Kamdar, none of the monies were utilized as such and were indeed utlised for wholly different purposes. Bipinchandra maintains that a considerable portion of the monies went to Jayesh. A sum in excess of RM5 million was utilized by the plaintiff to purchase over four million shares in its holding company, KGMB, for the purposes of increasing the price of KGMB shares on the date of listing. The legality of such a transaction warrants consideration given the purport of section 67 of the Companies Act 1965.

[112] In these circumstances we have no option but to reluctantly remit this case for re-hearing to the High Court. It would not be tenable for this court to undertake the task of making primary findings of fact in respect of the numerous issues that have not been addressed in the current judgment.

The company announced: the Court of Appeal of Malaysia had on 5 September 2016 via Grounds of Judgment declared a mistrial and ordered to remit this case for re-hearing before a different judge in the High Court.

Simply unworthy of a listed company: undocumented transfers, a cash cheque, large amount of cash in the boot of a car, no board approval, etc, etc, etc.

It also puts some severe question marks regarding the auditing.

The current share price of Kamdar after all those years is only RM 0.36.

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