dalam mahkamah tinggi malaya di kuala lumpur … · 12.03.2017 · 1 1 dalam mahkamah tinggi malaya...

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR 1

DALAM WILAYAH PERSEKUTUAN, MALAYSIA 2

GUAMAN SIVIL NO : S-22-94-2010 3

4

ANTARA 5

6

LOGICAL OPERATIONS CONSORTIUM SDN BHD 7

(No Syarikat : 394720-X) …PLAINTIF 8

9

DAN 10

11

1. ABDUL RAHIM BIN ABDUL RAZAK 12

(No K/P : 600915-07-5393) 13

2. SILVERLAKE SYSTEM SDN BHD 14

(No Syarikat : 182899-W) …DEFENDAN-DEFENDAN 15

16

TARIKH : 21.08.2014 17

MASA : 10.02AM 18

NOTA KETERANGAN 19

Koram 20

Hakim

Yang Arif Siti Khadijah Bt S. Hassan

Badjenid

YA

Peguam Plaintif

S S Tieh

SST

Peguam Defendan

Pertama

Abdul Rashid Ismail

Wan Norizan

ABR

WNZ

Peguam Defendan

Ke-2

H L Choon

Elaine Siaw

HLC

ELS

21

Saksi – Saksi 22

SP-1

Singanallur Venkataraman Narayanan

SINGA

SP-2

Udhaya Kumar

UDHAYA

23

Jurubahasa - JRB Penterjemah - PTJ 24

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MULA 1

2

JRB Dengan izin, Yang Arif, kes untuk sambung bicara S-22-94-2010, 3

Logical Operations Consortium Sdn Bhd lawan Abdul Rahim Bin 4

Abdul Razak dan satu lagi. 5

6

SST Dengan izin, Yang Arif. SS Tieh for the Plaintiff. My learned friend has 7

(00:00:24 inaudible). My learned friends, Mr HL Choon and Ms Elaine 8

Siaw for the Second Defendant. Yang Arif, may I also ask for 9

permission for En Rashid’s (00:00:38 inaudible), Cik Masira, Yang Arif. 10

11

YA (00:00:42 inaudible). 12

13

SST Much obliged. 14

15

SP2 16

Nama : Udhaya Kumar 17

Umur : 18

Alamat: 19

Pekerjaan: 20

Bersumpah dan memberi keterangan dalam Bahasa Inggeris 21

Masa : 10:03AM 22

23

Pemeriksaan Balas (Cross Examination) 24

Masa : 10:03AM 25

26

HLC May it please you, My Lady. Ok, so, Udhaya Kumar, look at answer to 27

Question 30 of your Witness Statement. Ok? 28

29

UDHAYA Yes. 30

31

HLC Now, you see that final projections called for a seven year revenue of 32

about RM140,000,000 from Bank Rakyat. Ok. You said that the final 33

projection called for a seven year revenue, when you say ‘called for’, 34

what do you mean by that? 35

36

UDHAYA Sorry again? 37

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1

HLC The first line of your answer, you said, the final projections called for a 2

seven year revenue, right, of RM140,000,000? What do you mean by 3

called for? 4

5

UDHAYA That means our estimate is RM140,000,000 in revenue for the seven 6

years contract. 7

8

HLC Ok, so, this estimate was done by the Plaintiff, correct? 9

10

UDHAYA Yes. 11

12

HLC Ok, can you show me any evidence where the Second Defendant has 13

agreed to this estimate given by the Plaintiff? 14

15

UDHAYA In the Bundles? 16

17

HLC Yes. 18

19

UDHAYA No, I don’t have that. 20

21

HLC You, don’t have that. Ok, I put it to you that this estimate of 22

RM140,000,000 over seven years was merely the Plaintiff’s own 23

projection and estimates and the Second Defendant has got nothing 24

to do with this, do you agree? 25

26

UDHAYA I disagree, Yang Arif. 27

28

HLC Ok, now, next one, you said that the total revenue over seven years 29

would have been RM84,000,000 while the Plaintiff would have 30

realised a revenue of RM56,000,000 over the same period. Now, I put 31

it to you that even if, even if there is this RM140,000,000 that, revenue 32

that you projected, then the party who will be entitled to 33

RM56,000,000 would not be the Plaintiff but actually would be IICSO, 34

do you agree? 35

36

UDHAYA It’s one in the same, because, like I said. 37

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HLC My question is, it would have been IICSO and not the Plaintiff who’ll 2

be entitled to this revenue of RM56,000,000, do you agree? 3

4

UDHAYA I disagree. 5

6

HLC You disagree. Now, so if this money comes in, where did, where does 7

it go to? Is it the IICSO or the Plaintiff? These two are separate 8

entities, you already said that you knew that. Where the money will go 9

to? Should it go to IICSO account or should it go to the Plaintiff’s 10

account first? 11

12

UDHAYA Yang Arif, if the contract is signed then its IICSO. 13

14

HLC Yes, so obviously this projection of getting RM56,000,000 is on the 15

assumption that the contract is signed, correct? Otherwise you will get 16

zero, just like what it is today. So, obviously it’s on the assumption 17

that the contract will be signed, correct? 18

19

UDHAYA That’s the assumption, yes. 20

21

HLC Yes, so therefore the money will go to IICSO, correct? 22

23

UDHAYA Yes, first. 24

25

HLC Yes, ok. Can you show me any agreement between IICSO and the 26

Plaintiff that this RM56,000,000 will be so called channelled to the 27

Plaintiff? Show it to me. 28

29

UDHAYA Signed agreement? 30

31

HLC Yes, of course. 32

33

UDHAYA No. 34

35

HLC No? 36

UDHAYA I don’t have. 37

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HLC So, I put it to you that this RM56,000,000 actually has got nothing to 2

do with the Plaintiff, do you agree? 3

4

UDHAYA I totally disagree. 5

6

HLC Now, can you show me any undertaking or promise, ok, by the Plaintiff 7

to the Second Defendant, ok, any undertaking or promise, by the 8

Plaintiff to the Second Defendant to guarantee that the Second 9

Defendant will make RM84,000,000 over seven years, is there any? 10

11

UDHAYA It was in the negotiations. 12

13

HLC No, can you show me any guarantee and promise, ok, where that 14

what it says is this. That means the Plaintiff is telling the Second 15

Defendant, look I guarantee you that over seven years you will get 16

RM84,000,000, is there any such guarantee? 17

18

UDHAYA Like I said, it’s in the projection, that’s part of the projections. 19

20

HLC But that is not a guarantee, right? Is there such a guarantee? 21

22

UDHAYA There is, verbally done in the presentations. 23

24

HLC Verbally done. So, that means the Plaintiff actually promised the 25

Second Defendant that they will make RM84,000,000 from this 26

project? 27

28

UDHAYA Based on the projection. 29

30

HLC No. So, that means you actually promised, ok, the Plaintiff actually 31

promised the Second Defendant that they will make RM84,000,000 32

out of this project? 33

34

UDHAYA That’s estimated, yes. 35

36

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HLC Yes, right, your answer? Don’t say what as estimated, yes. I mean, 1

my question is simple already, you know. So, the Plaintiff promised 2

the Second Defendant that they will make RM84,000,000 out of this 3

project, yes or no? 4

5

UDHAYA I cannot answer that, Yang Arif. 6

7

HLC It’s just a question of whether you gave the promise or you didn’t give 8

the promise, why is it so difficult to answer? 9

10

UDHAYA It’s based on so many different things, so the projections are 11

depending on many different variables, so it cannot be a promise, just 12

like that. 13

14

HLC I see. 15

16

UDHAYA There are so many considerations. 17

18

HLC So, there is no promise? 19

20

UDHAYA There are so many considerations. 21

22

HLC Then just answer, ‘no’. 23

24

UDHAYA I cannot answer that. 25

26

HLC I put it to you that the reason why no such promise or guarantee could 27

be given is because, as you said that based on so many variables and 28

other factors and therefore, nobody will actually know, how much 29

money they’re going to make, do you agree? 30

31

UDHAYA How much money? 32

33

HLC Both parties are going to make, do you agree? 34

35

UDHAYA Yes. 36

37

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HLC Do you agree with me that all these variables and factors that you 1

mentioned just now, that may affect the revenue for the project, ok, all 2

these variables and factors, do you agree with me that many of these 3

variables and factors are things that are beyond the control of the 4

Plaintiff and the Second Defendant? 5

6

UDHAYA Some of it, yes. 7

8

HLC Some of it, yes. And do you agree with me that things like market 9

condition, economic condition, the, whether the marketing programs 10

are successful, all this are matters that are beyond the control of the 11

Plaintiff and the Second Defendant? 12

13

UDHAYA Yes, but then we have the skills to mitigate those kind of risks. 14

15

HLC You have the skills to mitigate that kind of risks? 16

17

UDHAYA Yes. 18

19

HLC So, for example, if the economy is down, so what skills will you 20

exercise to mitigate that type or risk or to ensure that your targeted 21

revenue is still achieved? 22

23

UDHAYA That depends on the circumstances at that time. 24

25

HLC So, have you produced any plan or any proposal on how to handle 26

this situation? 27

28

UDHAYA That would be something that we do at that time. 29

30

HLC Have you? 31

32

UDHAYA At the time when there is such an incident, otherwise it’s. 33

34

HLC So that means, there’s none, at that moment? 35

36

UDHAYA No, otherwise it’s hypothetical. 37

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HLC Yes. 1

2

UDHAYA We won’t be doing all that often upfront. 3

4

HLC Mr Udhaya Kumar, I’ll ask you once again a direct and very simple 5

question. Have you or has the Plaintiff prepared any plan, ok it’s 6

actually a fact, have you prepared or have you not prepared any 7

plan? 8

9

UDHAYA There are risk mitigations that we’ve prepared. 10

11

HLC Specifically we are talking about just now, economy is down, there’s 12

an economy crisis, ok? 13

14

YA Why don’t you submit on that. 15

HLC Sorry? 16

17

YA You have asked, the witness has to answer. Why don’t you submit to 18

that? You submit further. 19

20

HLC Because just now he, just now he answered, I thought the chapter is 21

closed, ok, but he answered that, yes, they knows how to handle it, 22

they can handle it. Because just now I already said these factors are 23

beyond their control. So, but he wants to add on to his answer to say 24

that they have planned, they have ways to mitigate it, that was his 25

answer. So, which is why I have to. 26

27

YA Because it is hypothetical (00:10:00 inaudible). 28

29

HLC It is. . But all these things are hypothetical because this whole project 30

at that time was hypothetical. So, in order to test his answer I think this 31

question is necessary to ask the witness, have you at that time 32

actually prepared this so called mitigation plan to take into account, 33

what I said just now, for example, economic crisis, if there is, show us 34

the plan, if there’s none, then there’s none. You could say that you did 35

not prepare it because it’s hypothetical. 36

YA (00:10:26 inaudible) plan? 37

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1

HLC Yes. 2

3

YA Ok, (00:10:28 inaudible) plan. 4

5

HLC Yes, that’s why I said it’s a question of, have you prepared the plan? 6

7

UDHAYA Can you give me the question again? 8

9

HLC Have you prepared the plan, ok, to so call mitigate the risk when, let’s 10

say there is an economic crisis happening? 11

12

UDHAYA Yes, in a high level, but not in detail, there was no need to go to the 13

details. 14

15

HLC Ok, so at a high level plan, where is that? Show it to us. 16

17

UDHAYA I think yesterday we were going through all the different risk. 18

19

HLC So, your answer is confined to the so called risk and mitigation power 20

point slide that you prepared? 21

22

UDHAYA Yes. 23

24

HLC That is the one? 25

26

UDHAYA Yes. 27

28

HLC Ok, that’s all, correct? 29

30

UDHAYA Among others. 31

32

HLC There you see, then you see. Yang Arif, that is a problem, you see. I 33

ask him a specific question, is that all? Then he said among others. 34

35

UDHAYA In the projections also there are contingencies built in. 36

37

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HLC Specifically for this risk. 1

2

UDHAYA For many risks at this. 3

4

HLC No, Mr Udhaya Kumar, listen to my question. Ok, if you want to 5

answer more, wait for your counsel. What I say is that economic crisis 6

situation show me where is you plan to so call mitigate the risk? 7

8

UDHAYA Can I answer? 9

10

HLC Yes. 11

12

UDHAYA There are many provisions done and his hypothetical question of 13

economic risk or economic down turn, there can be many types of 14

down turn, so we don’t make provisions for all those kind of things. 15

Those are things that we address at that time based on certain 16

conditions depending on what kind of card base, what kind of usage 17

and everything will change. So, it’s very, I would say, hypothetical 18

situation for us to address upfront. 19

20

HLC Then you just say, no, right? That means at that time there was no 21

specific plan to handle that, correct? Because you said it’s 22

hypothetical. It doesn’t matter, it’s hypothetical, we all agree. 23

24

UDHAYA No, answer is, no need. 25

26

HLC No, it’s no, I didn’t ask you whether is there a need, I asked you have 27

you prepared? Please answer the question. 28

29

UDHAYA No. 30

31

HLC That’s it. Do you agree with me that the Second Defendant will not 32

have control over the Bank Rakyat’s marketing and credit policy and 33

that the marketing policy, marketing and credit policy of the bank will 34

also affect their financial projections? 35

UDHAYA Yes. 36

37


HLC Please look at Bundle B10, page 3827. 1

2

UDHAYA Sorry, again. 3

4

HLC Bundle B8, B10, 3827. 5

6

UDHAYA The page number please. 7

8

HLC 3827. 9

10

UDHAYA B8? 11

12

HLC B10. 13

14

UDHAYA Sorry. 3827? 15

16

[00:15:00] 17

18

HLC 3827, that is correct, yes. 19

20

UDHAYA Yes. 21

22

HLC Did you prepare this document? 23

24

UDHAYA I don’t think so. 25

26

HLC You don’t think so? 27

28

UDHAYA I think Dr Narayanan did. 29

30

HLC So, you were not involved in the preparation of this document? 31

32

UDHAYA Not this particular piece. 33

34

HLC Not this particular list, ok. Now, therefore the first paragraph of your 35

answer to 108.1, obviously is not your personal knowledge, correct? 36

37


UDHAYA 108? 1

2

HLC Point 1. Ok, and more specifically you look at 108.2, you said this 3

Narayanan did in collaboration with me? 4

5

UDHAYA Agree. 6

7

HLC So, which one is a lie? The answer you gave just now when said you 8

didn’t prepare this, you were not involved in this or the one in your 9

witness statement, which one is the truth? 10

11

UDHAYA I don’t think I said I was not involved in it, I said I didn’t prepare this 12

document. 13

14

HLC Yes. So, you were involved now? You say that? 15

16

UDHAYA I said I didn’t prepare this document. 17

18

HLC Yes. 19

20

UDHAYA That one is Dr Narayanan. 21

22

HLC So, but you have knowledge of this document? 23

24

UDHAYA Yes. 25

26

HLC So, when Dr Narayanan prepared this document, you were involved in 27

the preparation? 28

29

UDHAYA The numbers and all that come from my projections. 30

31

HLC No. My question is, when Dr Narayanan prepared these documents, 32

ok, you were involved as well? 33

34

UDHAYA Yes, to some extent. 35

36


HLC Yes. What is to some extent? You see, Dr, Mr Udhaya Kumar if you 1

continue this way we’re not going to end. It’s a simple question, were 2

you involved or were you not involved? That’s it. If you keep telling 3

me yes and some other thing else, I got to continue to ask you 4

questions, we’re going round in circles. So, can you answer me 5

again? So, what you’re saying is that you were involved in the 6

preparation of this document at 3827, is that correct? 7

8

UDHAYA Yes, as it says in collaboration with me. 9

10

HLC In collaboration with you, ok. Now, so, you also said that these figures 11

are derived from 3384 – 3401, especially at 3397, correct? 12

13

UDHAYA You’re referring to? 14

15

HLC Bundle B9. 16

17

UDHAYA No, in the Witness Statement? 18

19

HLC 108.1. 20

21

UDHAYA 3384 – 3401? 22

23

HLC Yes, so that’s how you got the figure, from 3397, correct? 24

25

UDHAYA Let me check. Ok, your question please. 26

27

HLC So, your figures at 3827 are derived from this projection at 3384 – 28

3401, correct? 29

30

UDHAYA Yes. 31

32

HLC Yes, ok. Now, first, I put it to you that this document at 3384 – 3401 33

was never given to the Second Defendant, and was never agreed to 34

by the Second Defendant, do you agree? 35


37


HLC You disagree. Can you show me when did these documents or how 1

this document was given to the Second Defendant and where is the 2

Second Defendant’s agreement to this? 3

4

UDHAYA I probably don’t have it in the Bundle. 5

6

HLC Not in the Bundle. So, I put it to you that simply this was not given and 7

it was not sent to the Plaintiff and this is really just an internal working 8

of the Plaintiff, do you agree? 9

10


12

HLC You disagree, ok. Now, actually at 3384, I put it to you that all these 13

figures listed at 3384 are merely the Plaintiff’s own assumptions and 14

all these assumed figures have never been approved or agreed to by 15

the Second Defendant, do you agree? 16

17


19

HLC You disagree. Now, all these assumptions, so for example, ok, like at 20

the bottom, monthly marginal fixed cost rates, variable cost rates, 21

show it to me where did the Second Defendant agree to this? 22

23

UDHAYA Probably not in the Bundles. 24

25

HLC Probably not in the Bundles. Ok. Penalty computation parameters. 26

ICT cost computation, again show it to me where is the Second 27

Defendant’s agreement to this? 28

29

UDHAYA Sorry, your question again. 30

31

HLC Same thing. For the penalty computation parameters. 32

33

UDHAYA Yes. 34

35

HLC ICT cost computation, show it to me where did the Defendant agree 36

to this? 37


1

YA Are you referring to 3384? 2

3

HLC 3384, yes. Just now I asked him the bottom, bottom part. 4

5

YA Where is the computation? 6

7

HLC It’s the greyish title part at the bottom, there’s a penalty right below the 8

box. There’s a penalty computation parameters, then next is ICT cost 9

computation. Bottom, there is a monthly marginal fixed cost rates, and 10

then variable cost rates. Just now I already asked him on monthly 11

marginal fixed cost rates and variable cost rates, I asked him to show 12

where is the Second Defendant’s agreement? He said, probably not 13

in the Bundle. So, now, penalty computation parameters and ICT cost 14

computation. Show it to me, where did the, when, how did the 15

Second Defendant agree to it? Is it there? 16

17

UDHAYA There’s no need for Second Defendant to agree because it came 18

from the Second Defendant. 19

20

HLC There’s no need, ok, show it to me that, where did they come from? 21

22

UDHAYA That I can’t look, I need to check. 23

24

HLC Ok, you can’t show it to me now, correct? 25

26

UDHAYA Yes. 27

28

HLC Ok, now, inside the box right you put there, business activities 29

assumptions. First line. Second one, assumptions for revenue 30

projections for ICC. The third one, assumptions for revenue 31

projections. Show it to me where did the Second Defendant agree to 32

all these assumptions? 33

34

UDHAYA Sorry, you’re referring to which one again? 35

HLC Inside the box, 3384, on top there, there’s a box, right? 36

37


UDHAYA Yes. 1

2

HLC The box is separated into three sections, business activity 3

assumptions, assumptions for revenue projections for ICC, 4

assumptions for revenue projections, correct? 5

6

UDHAYA Yes. 7

8

HLC Ok, so that, for all those, these three, all these assumptions that you 9

made, show it to me where did the Second Defendant agree to it? 10

11

UDHAYA Where, is it? 12

13

HLC Yes. That means they have agreed that, yes, you know, it’s correct, 14

this is the amount, this is the amount that you should use, this is the 15

growth rate or whatever, for example like, you know, the card base, 16

start with 50, you know, there will always be a growth rate of this 17

much. Show it to me where did the Second Defendant agree to your 18

assumptions? 19

20

UDHAYA I don’t know, I think it is the email that Andy said, in principle he 21

agrees to the terms, so I need to cross check. 22

23

HLC No, I’m talking about the financial projections not about the 24

subcontract arrangement or anything. 25

26

UDHAYA The financial projections, Yang Arif, is actually the terms that would 27

have gone into the contract. 28

29

HLC Would have gone into the contract? Ok. Now, so, you’re merely 30

referring to that, email by Andy that you’re referring to, that’s it, right? 31

32

UDHAYA Among others, yes. 33

34

HLC Don’t say among others. If among others, tell us what. 35

UDHAYA Like I said, these presentations, the projections and all that were 36

discussed, presented in person to Silverlake. 37


1

HLC You can propose, you can discuss, you can do anything you want. I’m 2

asking you to show me where did the Second Defendant agree to 3

this? The question again is very specific. You can give me 2000 4

proposals, it doesn’t mean that I accept it, I agree to it, isn’t it? 5

6

UDHAYA Then I have to say the email from Andy saying he agreed in principle 7

to the terms. 8

9

HLC So, it’s only that email, correct? 10

11

UDHAYA Yes. 12

13

HLC Yes, ok. Now, in this financial proposal it says that there’s no CAPEX, 14

correct, no capital expenditure? That is the assumption, correct? 15

16

UDHAYA Let me check. 17

18

HLC It’s at the title at 3384. 19

20

UDHAYA Yes, not necessarily so. Yes, that’s the assumption. 21

22

HLC That is the assumption, no capital expenditure required, right? 23

24

UDHAYA Yes. 25

26

HLC So, I put it to you that this financial projection is utterly meaningless, 27

because no business could start without capital expenditure, do you 28

agree? 29

30


32

HLC You disagree. I put it to you that if IICSO does not even have the 33

money and ability to commence business because there’s not capital 34

expenditure, then no profit would have been possible, do you agree? 35

UDHAYA Totally disagree. 36

37


HLC I put it to you that the entire projection by the Plaintiff or IICSO is on 1

the assumption that the Second Defendant will provide the capital for 2

IICSO or the Plaintiff to do business. And I put it to you that such 3

assumption is incorrect because the Second Defendant has never 4

agreed to it, do you agree? 5

6

UDHAYA I totally disagree, Yang Arif. 7

8

HLC Do you agree with me that there is no proof, ok, there’s no proof in the 9

Bundles that all these assumptions that you put in 3384, has been 10

achieved or materialised? 11

12

UDHAYA Achieved or materialised, clarify please. 13

14

HLC That means, you can’t prove that for example, the card base actually 15

grow from 50 to 150 to 200 to 250 based on your assumption, actually 16

grow. 17

18

UDHAYA I don’t think card base is an assumption of that, that’s an objective to 19

shoot for. 20

21

HLC Sure, but whatever you put here, you put there business activities 22

assumptions. So, which is why, you put the numbers there, and say 23

that this is what you project it will grow or it should grow or it need to 24

grow in order to achieve certain financial gains, ok. So, I’m saying that 25

for all these figures that you’re talking about, like the card growth and 26

all these things, there is no proof in the Bundle to show that these 27

assumptions have since been materialised. That means it actually 28

happened, do you agree? 29

30

UDHAYA Whether I can show you? 31

32

HLC Yes. 33

34

UDHAYA It actually happened or not? 35

HLC Yes. 36

37


UDHAYA No. 1

2

HLC You can’t show, right? Now, you look at 3397, ok. There’s a little 3

arrow there, net profit before tax, right? 4

5

UDHAYA Which one again? 6

7

HLC 3397. 8

9

UDHAYA Yes. 10

11

HLC Ok. Now, this net profit before tax, whose profit it is? 12

13

UDHAYA This is Plaintiff. 14

15

HLC Plaintiff. Why is the Plaintiff receiving profit here? Because, this is for 16

IICSO. 17

18

UDHAYA It’s one in the same. I think we went through this before. 19

20

HLC One and the same. So, all this amount when you say for example, 21

management fees to ICIC, professional services, ICT relationship, all 22

these interest charges, all this amount to be received from Silverlake, 23

it will go straight into the Plaintiff? 24

25

UDHAYA If the contract is signed then it would have gone through IICSO. 26

27

HLC Yes. Obviously it has to be on the assumption that the contract is 28

signed, Mr Udhaya Kumar. If the contract is not signed you will get 29

zero. Just like how it is today and that is why today you’re in court, 30

correct? 31

32

UDHAYA Yes. 33

34

HLC So, the assumption must be that if the contract is signed, therefore I’m 35

putting it to you that when you’re saying there profit before tax here, 36


you must be referring to the net profit before tax of ICC, IICSO and not 1

the Plaintiff, do you agree? 2

3

UDHAYA For this purpose, it’s both one and the same, Yang Arif. 4

5

HLC But the money will go to IICSO, correct? 6

7

UDHAYA If the contract signed, yes. 8

9

HLC Yes. I put it to you that the only party who is entitled to receive any 10

money from the Second Defendant if the contract is signed will be 11

IICSO and not the Plaintiff, do you agree? 12

13

[00:30:00] 14

15

UDHAYA If? 16

17

HLC Yes, of course. Do you agree? 18

19

UDHAYA If the contract is signed, yes. 20

21

HLC Yes. And I put it to you that even if the contract is signed the Plaintiff 22

will not be entitled to receive any money from the Second Defendant, 23

do you agree? 24

25

UDHAYA Sorry, again. 26

27

HLC Even if the contract is signed, the Plaintiff will not be entitled to receive 28

money from the Second Defendant, do you agree? 29

30


32

HLC You disagree. So, that means the Second Defendant have to pay 33

both IICSO and the Plaintiff, is it? 34

35


UDHAYA I disagree because that was the arrangement that if the Plaintiff and in 1

this case us, the Second Defendant go into the contract then the 2

vehicle used is actually through IICSO. 3

4

HLC Right, so that’s why money, if the contract is signed, money must be 5

from the Second Defendant to IICSO, then maybe later on for IICSO 6

to do whatever they want with the money, correct? 7

8

UDHAYA Yes. 9

10

HLC Including paying the Plaintiff, in your mind. 11

12

UDHAYA Yes. 13

14

HLC One in the same, right? 15

16

UDHAYA Yes. 17

18

HLC Now, what I’m saying is that the Second Defendant will not in any 19

circumstances be obliged to pay the Plaintiff even if the contract with 20

IICSO was signed, correct? 21

22

UDHAYA If it’s signed, yes. 23

24

HLC Yes. 25

26

UDHAYA That’s the vehicle we agreed to go with. 27

28

HLC Yes. And ever since this issue of IICSO was raised or brought up, ok, 29

by whichever party, either you say it was brought by Rahim or Razak, 30

we say is by you it’s by you it doesn’t matter, ok. Ever since this issue 31

of forming up a new company of IICSO was brought up, I put it to you 32

that the intention has always been that the money will go to IICSO and 33

not directly to the Plaintiff, do you agree? 34

35

UDHAYA That’s the vehicle we agreed, to go through IICSO. 36

37


HLC The answer is, yes, correct? 1

2

UDHAYA Yes, if the contract is signed, yes. 3

4

HLC Yes. I put it to you that bearing in mind that IICSO only has a paid up 5

capital of RM10,000.00 it was unrealistic, ok, and unreal for IICSO to 6

hope to make RM60,000,000.00 in profit over seven years, do you 7

agree? 8

9

UDHAYA Totally disagree. 10

11

HLC Now your answer to Question 72.1, refer us to some Kazakhstan 12

project. I put it to you that it has got nothing to do with the Bank 13

Rakyat project, do you agree? 72.1, you talk about Kazakhstan. I put it 14

to you that this has got nothing to do with the Bank Rakyat project, do 15

you agree? 16

17


19

HLC You disagree. Is Bank Rakyat having a branch in Kazakhstan or 20

anything, can you, can you tell us what is the relevancy here? 21

22

UDHAYA This is part of the bigger, what you call, alliance. 23

24

HLC Mr Udhaya Kumar. 25

26

UDHAYA Strategic alliance. 27

28

HLC Mr Udhaya Kumar, I’m not talking about your relationship between the 29

Plaintiff and the Second Defendant. My question was very specific. 30

This has got nothing to do with the Bank Rakyat project. The subject 31

matter here is Bank Rakyat project. So, what is the relationship 32

between Kazakhstan visit and Bank Rakyat project? 33

34

UDHAYA I was about to go into it. 35

36

HLC Yes. 37


UDHAYA It’s part of the bigger picture where Rahim and Razak actually said 1

that if the Bank Rakyat and expansion into Thailand, Indonesia, that’s 2

where the IICSO focussed on Islamic Syariah based company. And 3

Kazakhstan was another one of it that we helped prepared the 4

presentations. 5

6

HLC Presentations to who? 7

8

UDHAYA To, for bank, Silverlake to bring it up to Halyk Bank in Kazakhstan. 9

10

HLC What is the relationship between Halyk Bank and Bank Rakyat? 11

12

UDHAYA Common platform owner is Silverlake. 13

14

HLC No, what is the relationship between Halyk Bank and Bank Rakyat? 15

16

UDHAYA Same provider, Silverlake. 17

18

HLC So, if you get the Bank Rakyat project you will get the Halyk Bank 19

project automatically? 20

21

UDHAYA It will actually improve the economy of scales. 22

23

HLC No. I’m not saying. My question is very simple. If you get the Bank 24

Rakyat project does it mean you will also get Bank Halyk project? 25

26

UDHAYA It will strengthen. 27

28

HLC No, it’s just a question. Don’t give us possibility here. This is a 29

question of fact, you’re here as a factual witness, ok? 30

31

UDHAYA Yes. 32

33

HLC So, I say, once you get the Bank Rakyat project does it mean that you 34

will also get Halyk Bank project? 35

36

UDHAYA Does it mean? 37


1

HLC Yes. 2

3

UDHAYA Yes. 4

5

HLC You will also get Halyk Bank project? 6

7

UDHAYA Yes. 8

9

HLC Had Silverlake signed a contract with Halyk Bank? 10

11

UDHAYA I don’t know. 12

13

HLC Then? How do you say that you will also get that project? 14

15

UDHAYA Does that mean you can get? Yes. 16

17

HLC No, I didn’t say you can get. Listen to the question carefully. Does it 18

mean that you can, you will also get the Halyk Bank project? It’s not. 19

20

UDHAYA You will also? 21

22

HLC Yes. 23

24

UDHAYA There’s a possibility, yes. 25

26

HLC Only a possibility? 27

28

UDHAYA Yes, of course. 29

30

HLC Right, so therefore I put it to you that the Bank Rakyat project and this 31

Halyk Bank are two separate projects and not one in the same, do 32

you agree? 33

34


36


HLC You disagree. So, in your so called business procurement services, 1

you will also be charging your travelling or whatever time that you 2

spent for this Halyk Bank project, correct? 3

4

UDHAYA Yes, I would. 5

6

HLC Yes, you would, ok. Was that successful, Halyk Bank? 7

8


10

HLC You don’t know. Now, go to 86. Again this is another Kazakhstan, and 11

then in Jakarta. Ok. I put it to you that this again is not related to the 12

Bank Rakyat project, do you agree? 13

14

UDHAYA I have to disagree again. 15

16

HLC I put it to you that your answers in 72.1 and 86, ok, the one that we 17

went through just now, Kazakhstan, ok, 72.1 and 86, are really the 18

Plaintiff’s attempt to try to collaborate with the Second Defendant, so 19

that the Plaintiff will have a chance to get more business, do you 20

agree? 21

22


24

HLC I put it to you that, all these things that you did as in the 72.1 and 86 25

are really the Plaintiff’s effort to get more business for themselves, do 26

you agree? 27

28


30

HLC Ok, go back to Question No.5, you have a I, II and III right? 31

32

UDHAYA Question number? 33

34

HLC 5. 35

36

UDHAYA Yes. 37


HLC Now, I put it to you that II and III, are part of the pre-op services, do 1

you agree? 2

3

UDHAYA Again, your question. 4

5

HLC II and III, these are part of the pre-op services, do you agree? 6

7

UDHAYA Your question is, is this part of pre-operation? 8

9

HLC Sorry? 10

11

UDHAYA Your question again. 12

13

HLC Yes, II and III. These are, those are part of pre-ops. Do you agree? 14

15

UDHAYA Not necessarily. 16

17

HLC Sorry? 18

19

UDHAYA Not necessary. 20

21

HLC Not necessary. Not necessary means what? 22

23

UDHAYA It can be used for post operations as well. 24

25

HLC It can be used for post operations as well. Ok, but you already said 26

that you did not do any work for post operations, right? So, then it has 27

to be for pre-operations. 28

29

UDHAYA Like I said, not necessary. 30

31

HLC Ok, never mind. Ok, 54. You look at the question, the question says 32

this. You mentioned that the meeting with the Second Defendant was 33

postponed to the first week of December 2006. Do you have any proof 34

to show that this meeting did take place? That was the question asked 35

to you? 36

UDHAYA Yes. 37


1

HLC Counsel asked you this. Then your answer is ‘yes’, then you referred 2

us to 3820 of Bundle B10. Ok, 3820, you see that? 3

4

UDHAYA Yes. 5

6

HLC But in your view you think that a table drawn up at the time when 7

demand has to be made is proof that the meeting actually took place. 8

The question asked is this, you know. Do you have any proof? So, you 9

showed us this document then to you that is already proof. Is that, is 10

this, is that what you mean? 11

12

UDHAYA Yes. 13

14

HLC Yes. So, if this document says the date is, or the hours is 500, then 15

that is already proof that you actually proof that you already spent 500 16

is that so? 17

18

UDHAYA That’s the, question, we spent 500 hours? 19

20

HLC Yes, whatever it took, whatever is stated here to you is that it’s already 21

proof that the event did happen. 22

23

UDHAYA I don’t understand you question. 24

25

HLC We asked you to show proof. What you showed is a table, a summary 26

that prepared years later when demand has to be made. 27

28

UDHAYA Yes. 29

30

HLC And this is the only proof that you can produce to the court, is that 31

true? 32

33

UDHAYA This is the only proof? 34

35

HLC Proof, yes, because the Question 54 was only asking you about proof. 36

UDHAYA Yes, I’m only referring to this one. 37


1

HLC You’re only referring to this one? There’s no other proof, correct? 2

3

UDHAYA No other proof. 4

5

HLC Yes. 6

7

UDHAYA Other than. 8

9

HLC This 3820? 10

11

UDHAYA We witness saying that these people were present. 12

13

HLC No, other than 3820? 14

15

UDHAYA Yes. 16

17

HLC The question asked is, do you have any proof to show that this 18

meeting did take place? You referred us to this. Is there any other 19

proof? 20

21

UDHAYA Yes, so, you’re saying in the bundle or my? 22

23

HLC Of course in the bundles. 24

25

UDHAYA No, I don’t have that in the bundles, I suppose. 26

27

HLC There’s no other proof in the bundles? 28

29

UDHAYA Yes. 30

31

HLC Ok. Have you seen Dr Narayanan’s diary before this action? 32

33

UDHAYA Sorry, the question again? 34

35

HLC Have you seen Dr Narayanan’s diary before this action? 36

UDHAYA Before which action? 37


1

HLC This legal action. Before his diary was filed in court, so, if you want to 2

have a look at how his diary looks like, at page 3828, ok, all the way to 3

3858. Ok, before the filing of these documents in court, have you seen 4

his diary before? 5

6

UDHAYA Yes. 7

8

HLC You have? So, did you use this diary as one way of ascertaining the 9

data contained in 3820? 10

11

UDHAYA Yes. 12

13

HLC Yes. I put it to you that this meeting, so called meeting on the 5th of 14

December, was not shown in his diary, do you agree? 15

16

UDHAYA 5th of December? 17

18

HLC Yes. That’s at 3835. 19

20

UDHAYA Yes, it’s not there. 21

22

HLC It’s not there. So therefore, even his diary does not show this and 23

there’s no other proof of this happening. So, I put it to you that this 24

meeting did not happen, do you agree? 25

26


28

HLC You disagree. How can you be so sure that it happened? Bearing in 29

mind that 3820 was prepared when the Letter of Demand was signed, 30

which was, sorry, was issued, which was much later, sometime in 31

June 2009, when you are referring to a meeting that happened two 32

and a half years ago, how can you be so sure? 33

34

UDHAYA How can I be so sure? 35

36


HLC When you prepared 3820, or when you’re preparing in collaboration 1

with Dr Narayanan, 3820, that was prepared, Dr Narayanan already 2

confirmed it was prepared pursuant to issuing the Letter of Demand, 3

and that happened in June 2009. We are talking about an event that 4

purportedly happened in December 2006, ok. You have informed this 5

court that there’s no other evidence, not even in Dr Narayanan’s diary, 6

this meeting was shown. So, how can you be sure that this meeting 7

did in fact take place? 8

9

[00:45:00] 10

11

UDHAYA I had just recalled. 12

13

HLC You just recalled? 14

15

UDHAYA Yes. 16

17

HLC So, you recalled that on 05.12.06 a meeting held? 18

19

UDHAYA Yes. 20

21

HLC I put it to you that you’re not telling the truth here, do you agree? 22

23


25

HLC Now, at 55.1, your answer right after 54, the question asked is, ‘what 26

transpired at this meeting with the Second Defendant?’ You said, ‘the 27

Plaintiff gave a presentation to the senior management of the Second 28

Defendant on the scope and commitment on BIM credit card 29

outsourcing and the high level financials. Ok, so you gave a 30

presentation. 31

32

UDHAYA Yes. 33

34

HLC Ok. At this presentation to the senior management did they ask any of 35

the senior management members of Second Defendant, whether or 36

not they are awarding the project to you or to the Plaintiff? 37


UDHAYA There was no need. 1

2

HLC I’m asking you, did you ask? 3

4

UDHAYA It’s understood. 5

6

HLC I asked you, did you ask? 7

8

UDHAYA I don’t have to ask. 9

10

YA Did you ask? 11

12

UDHAYA No. 13

14

HLC Sorry, your answer is? 15

16

UDHAYA No, I didn’t ask. 17

18

HLC Then just answer that. 19

20

UDHAYA Like I said, there was no need. 21

22

HLC My question to you is simple. Did you ask? 23

24

YA Your counsel will give you a chance to explain. 25

26

UDHAYA Yes. 27

28

HLC Ok, did you tell senior management members of the Second 29

Defendant that you will be charging the Second Defendant for 30

business procurement services for preparing and attending this 31

presentation? 32

33

UDHAYA No. 34

35

HLC I put it to you that why that did not happen is because you knew very 36

clearly that number one, parties were still in negotiation and no firm 37


commitment has been made by either party, and number two, there 1

was no intention to charge for business procurement services, do you 2

agree? 3

4

UDHAYA Disagree totally. 5

6

HLC Disagree totally. I further put it to you that there’s no basis for the 7

Plaintiff to claim for any business procurement services in this case, 8

do you agree? 9

10


12

HLC You disagree. And I put it to you that there’s also no basis to claim for 13

loss of profit of RM16,000,000 from the Second Defendant, do you 14

agree? 15

16


18

HLC I put it to you that if any party were to suffer a loss of profit, if the 19

agreement is signed it would have been IICSO and not the Plaintiff 20

and therefore the Plaintiff do not even have a basis to make this claim, 21

do you agree? 22

23


25

HLC Totally disagree. I put it to you that you are not in a position to 26

disagree because at that time you were not even a director or a 27

shareholder of IICSO and therefore you have no power whatsoever to 28

dictate or to decide how the loss of profit will be distributed, how the 29

profit earned by IICSO would be distributed, do you agree? 30

31


33

HLC You disagree. Thank you, Mr Udhaya Kumar, that’s all, Yang Arif. 34

35

ABR Dengan izin, Yang Arif. Mr Udhaya Kumar, can I refer you to your 36

Witness Statement? 37


UDHAYA Yes please. 1

2

ABR I just want to make some preliminary questions before I start. This 3

Witness Statement, was it prepared by you? 4

5

UDHAYA Yes. 6

7

ABR It was prepared by you. All the contents, accurate and correct? 8

9

UDHAYA Yes, with some corrections. 10

11

ABR Some corrections. At this stage do you want to amend or correct any 12

of the contents of your Witness Statement? 13

14

UDHAYA No, it’s accurate as best of my knowledge. 15

16

ABR Can I now refer you to the Bundle of Pleadings? 17

18

UDHAYA Bundle of Pleadings. 19

20

ABR The document marked A. Do you prefer to look at? Are you looking 21

now? 22

23

UDHAYA Yes. 24

25

ABR Bundle A, and if you look at page 1, it’s a Writ of Summons. 26

27

UDHAYA Yes. 28

29

ABR At page 5 there is a Pernyataan Tuntutan. There is also, there are 30

also English versions to these documents, would you prefer to refer to 31

the English versions? 32

33

UDHAYA Yes please. 34

35

ABR The English versions can be found at page 43 for the Statement of 36

Claim. 37


UDHAYA Page 43? 1

2

ABR Yes, of Bundle A. 3

4

UDHAYA Yes. 5

6

ABR And it goes up to page 76. Yes? 7

8

UDHAYA Ok. 9

10

ABR Have you seen this Statement of Claim before? 11

12

UDHAYA I’ve glanced through. 13

14

ABR You’ve glanced through. Were you the one who prepared this 15

Statement of Claim? 16

17

UDHAYA No, Dr Narayanan did. 18

19

ABR Dr Narayanan did. Can you have a look at the Statement of Claim, 20

page by page and can you please confirm that the contents of the 21

Statement of Claim are accurate? Yang Arif, I’m just thinking, because 22

the witness wants to read, it’s the first time as if he’s looking at it, can 23

we just take 10 minutes and ask the counsel to refer to what are the 24

document that I want him read, so that we don’t have to, Yang Arif 25

don’t have to sit down and wait for him to. Ok. 26

27

JRB Court bangun. 28

29

AKHIR 30

31

MASA : 10:56AM 32

33

34

35

36

37


TARIKH : 21.08.2014 1

MASA : 1:39 PM 2

MULA 3

4

ABR Dengan izin, Yang Arif, pihak-pihak seperti tadi. Pohon teruskan 5

dengan cross examination. 6

7

Pemeriksaan Balas (Cross Examination) 8

Masa: 1:39 PM 9

10

ABR Mr Udhaya. 11

12

UDHAYA Yes. 13

14

ABR Before we break for lunch, before we broke for lunch, you were asked 15

to look at several documents. Have you read all of them? 16

17

UDHAYA I tried to do as much I can. 18

19

ABR Have you completed reading them? 20

21

UDHAYA First glance, yes. 22

23

ABR First glance. Have you looked at page 43 up to page 76? 24

25

UDHAYA Yes, I have. 26

27

ABR You have read them? 28

29


31

ABR Confirm that contents are correct? 32

33

UDHAYA As much as I can understand. 34

35

ABR No amendments that you want to make for this. 36


1

UDHAYA I don’t think so I want to make any amendments. 2

3

ABR Alright. What about the documents at page 184 to 197? 4

5

UDHAYA No, I don’t think so. 6

7

ABR So you confirm that as far as you’re concern the contents are 8

accurate. 9

10

UDHAYA To best of my knowledge. 11

12

ABR May I now refer you to page 240 up to 276? 13

14

UDHAYA Yes. 15

16

ABR Yes, have you read that? 17

18

UDHAYA Yes. 19

20

ABR Any, you can confirm that as far as to the best your knowledge it’s 21

correct and accurate. 22

23

UDHAYA Yes, it’s. 24

25

ABR No amendments that you wish to make. 26

27

UDHAYA No amendments to be made. 28

29

ABR I also ask you to look at exhibit E1, document marked E1. 30

31

UDHAYA I don’t think I looked at it. 32

33

ABR Summary. 34

35

UDHAYA Summary. Yes, I’ve gone through that as well. 36

37


ABR Okay. No amendment. 1

2

UDHAYA No amendments. 3

ABR You confirm it at the best of your knowledge is. 4

5

UDHAYA Correct. 6

7

ABR Mr Udhaya, what do you do now? 8

9

UDHAYA I’m Vice President in Pos Malaysia, Yang Arif. 10

11

ABR Vice President in Pos Malaysia. Since when? 12

13

UDHAYA About two years ago. 14

15

ABR Two years ago that would be 2012. 16

17

UDHAYA September 2012. 18

19

ABR Right. And when did you join the Plaintiff? 20

21

UDHAYA I don’t think I joined as an employee you mean? 22

23

ABR Yes. Okay sorry. When did you start doing some work for the Plaintiff? 24

25

UDHAYA I think in end 2000, year 2000, I think. 26

27

ABR End of year 2000. You came in as a consultant for them. 28

29

UDHAYA Meaning? 30

31

ABR When you did some work for the Plaintiff, what was the nature of work 32

that you? 33

34

UDHAYA I was doing RHB’s business card programme that they ask me take 35

over or not, appointed me to do it and I did it through Logical 36

Operation, the Plaintiff. 37


1

ABR When you say you did for the Plaintiff, you came in as an independent 2

contractor? 3

UDHAYA Yes. 4

5

ABR Yes. So you had a contract for services. 6

7

UDHAYA No. 8

9

ABR There’s no contract. 10

11

UDHAYA No contract. 12

13

ABR So you came in for a specific project for the Plaintiff. 14

15

UDHAYA And many others over the last 10 over years. 16

17

ABR Yes. When I say for a specific project what I mean is you came in not 18

as an employee. 19

20

UDHAYA Yes. 21

22

ABR Yes. You were not the Directors or shareholders of the Plaintiff. 23

24

UDHAYA I was one time a Director but. 25

26

ABR You were a Director. 27

28

UDHAYA Yes, long time back. 29

30

ABR When was that? 31

32

UDHAYA I think I resigned in sometime 2003 or something like that. 33

34

ABR 2003 you resign as a Director but you’ve been a shareholder of. 35

36

UDHAYA No. 37


1

ABR The Plaintiff. 2

3

UDHAYA No. 4

5

ABR Were you paid a monthly salary by the Plaintiff when you join them in, 6

at the end of year 2000? 7

8

UDHAYA Never. No salary. 9

10

ABR No salary. So how did you get your remuneration then? 11

12

UDHAYA Based on the project and I take the fee from that. So it’s not a monthly 13

salary. 14

15

ABR So you get a cut from the project that was awarded to the Plaintiff. 16

17

UDHAYA Yes. 18

19

ABR Would you describe yourself as a consultant when you, when you 20

were with the Plaintiff? 21

22

UDHAYA Yes. 23

24

ABR Yes. Have you, prior to Bank Islam, have you done any work for any 25

Islamic bank before? 26

27

UDHAYA No. 28

29

ABR Bank Islam was your first Islamic card work. 30

31

UDHAYA Yes, that’s true. 32

33

ABR I presume that you are a Malaysian. 34

35

UDHAYA Yes, I am. 36

37


ABR Yes, you are. Tell us how does it work when you do the project with 1

the Plaintiff. The Plaintiff will come and call you whether you’re interest 2

to do a particular project and then you’ll say yes. Is that how it works? 3

UDHAYA Not necessarily. Like the case in RHB, the RHB people actually 4

contacted me and said they need help to set up their business card. 5

6

ABR Yes. 7

8

UDHAYA And I work with Plaintiff to come out with the proposals and executed 9

the entire the project under the what you call, under the Plaintiff’s 10

(00:09:15 inaudible). 11

12

ABR Alright so in respect of the Bank Islam project how did it work? Who 13

approach you? 14

15

UDHAYA Bank Islam. 16

17

ABR You personally? 18

19

UDHAYA Yes. 20

21

ABR Then you ask the Plaintiff whether, you ask Dr Narayanan whether he 22

wanted to join the project. 23

24

UDHAYA Yes, basically shared with him the interest from Bank Islam so we put 25

together a presentation and proposal. 26

27

ABR When you say that, when you say interest, the remuneration. 28

29

UDHAYA Interest mean from the bank that they need some help to set up their 30

card operations, Yang Arif. 31

32

ABR Right. Do you have any Syariah qualification? 33

34

UDHAYA No, I don’t. 35

36

ABR Would you call hold yourself out as a Syariah expert? 37


1

UDHAYA No, I would not. 2

ABR I assume that you’re not a Muslim. 3

4

UDHAYA I’m not Muslim. 5

6

ABR Do you agree in 2006, that the Plaintiff has never managed an Islamic 7

card centre? 8

9

UDHAYA Plaintiff has not managed any card centre, period. 10

11

ABR Right. And also it had never provided any out sourcing services for 12

any Islamic bank in Malaysia in 2006. 13

14

UDHAYA Any whether conventional or Islamic. 15

16

ABR Can you tell us when did, when was the first time you met with the 17

First Defendant, Encik Abdul Rahim? 18

19

UDHAYA I think in early part of, early part of 2001, I think. 20

21

ABR Early part of 2001 and did you work closely with Encik Rahim, the 22

First Defendant? 23

24

UDHAYA Yes, many years. 25

26

ABR Many years. It was during the Bank Islam project tha, you were 27

working with him. 28

29

UDHAYA Yes, you’re right. 30

31

ABR How would describe the nature of your relationship with Encik Rahim? 32

Were you friends or you were just professional colleague? 33

34

UDHAYA I think friends. 35

36


ABR Friends. Do you know what was his position when he was at Bank 1

Islam? 2

3

UDHAYA Specifically. 4

5

ABR Specifically. 6

7

UDHAYA He was the head of the card centre which I think equals to assistant 8

general manager position. 9

10

ABR Assistant general manager. Would you consider Encik Rahim as an 11

expert in Islamic card for Syariah? 12

13

UDHAYA It’s a very wide, Syariah is very wide. 14

15

ABR Right. 16

17

UDHAYA In terms of operations of it, yes. 18

19

ABR He’s an expert in your opinion because you’ve work with him, you 20

know. 21

22

UDHAYA Yes, he’s been running a Syariah compliant operations for probably 23

six, seven years at that time, by the time. 24

25

ABR So you would consult him when it comes to the operations of Islamic 26

card operations because the nature of his experience and expertise in 27

the area. 28

29

UDHAYA Not necessarily. 30

31

ABR Not necessarily. Can I refer you to your witness statement? 32

33

[00:15:00] 34

35

UDHAYA Sure. 36

37


ABR Yes. 1

2

UDHAYA Yes, I. 3

ABR You got that. Page number 2 at question 6. 4

5

UDHAYA Yes, I have that. 6

7

ABR You have said that, you said in the period between 18.09.06 and 8

20.09.06. Correct? 9

10

UDHAYA Yes. 11

12

ABR You said Rahim had telephone the Plaintiff. Who in the Plaintiff that he 13

called? 14

15

UDHAYA He called me. 16

17

ABR He called you? 18

19

UDHAYA Yes. 20

21

ABR So, do you agree at that point in time Plaintiff was not even in the 22

picture? 23

24

UDHAYA Not even in the picture of? 25

26

ABR Not in the picture, Plaintiff. As a company, he called you personally 27

was it, did he? He called you. 28

29

UDHAYA Are you saying he called in what capacity? 30

31

ABR Let me just put it in a different way. Do you agree when you said in the 32

period between 18.09.06 to 20.09.06, the Plaintiff, Encik Rahim had 33

telephoned the Plaintiff? In fact he did call the Plaintiff, he called you. 34

Correct? 35

36



1

ABR You disagree. How many times did he call you between 18 to 20? 2

3

UDHAYA I think maybe there was an exchange of one or two times because 4

we’re trying to set a time to meet so I think it’s a couple of times but I 5

can’t really remember the, this one, it’s definitely not one call. 6

7

ABR Not one call? 8

9

UDHAYA And yes. 10

11

ABR When you had the conversations with Encik Rahim, what was, did he 12

tell you why he wanted to sit, to speak to you? 13

14

UDHAYA Yes. He wanted to meet up and we suggested that we do it over the 15

weekend because we were busy with the MDec’s project and we finish 16

late every day. 17

18

ABR Yes. 19

20

UDHAYA So eventually he convinced us that it’s urgent and he’s willing to drive 21

down to Cyberjaya to meet up with us and also to bring Encik Razak 22

of Silverlake. 23

24

ABR Alright. Did he mention to you what was the nature of or why he 25

wanted to see you? 26

27

UDHAYA I believe so because I think one of the reason why there was a 28

urgency not over the weekend and to bring it as soon as he can was 29

with regards to some projects that he wanted talk to us about. More 30

specifically I think is the Bank Rakyat one. 31

32

ABR What was, did he explain to you on the phone the urgency that he 33

required to see you? 34

35

UDHAYA Yes, he said I think we cannot wait until the weekend. Can we see 36

earlier and I remember consulting Dr to say they want earlier and the 37


next option is to look at our lunch time because during the official 1

office time we are facilitating the MDec people so we cannot walk 2

away. 3

ABR The question that I have here was; did he tell you why did he want to 4

meet urgently? 5

6

UDHAYA Yes because of the projects that he’s talking about. 7

8

ABR The project. What project was that? 9

10

UDHAYA He’s talking about the Bank Rakyat ones. 11

12

ABR Bank Rakyat. So at that point in time do you agree that when Encik 13

Rahim called you he could not have mentioned about the Plaintiff 14

because it specifically in regard to the Bank Rakyat project because 15

you don’t know what the project was all about. You just knew what he 16

wanted to talk to you about. Correct? 17

18

UDHAYA Sorry can you? 19

20

ABR Do you agree when Encik Rahim had, when Encik Rahim called you 21

for the meeting, he could not have invited the Plaintiff because at that 22

point in time, you didn’t even know the full extend or nature of the 23

Bank Rakyat project as yet. 24

25


27

ABR You disagree. Did, I just want to ask you do you, did you know the 28

separate, the concept of legal personality between company and 29

individual? 30

31

UDHAYA Legal entities, you mean. 32

33

ABR Yes. 34

35

UDHAYA Yes. 36

37


ABR You understand the difference. 1

2

UDHAYA Yes, I do. 3

ABR Do you understand that the company can have its own? 4

5

UDHAYA Is a legal entity. 6

7

ABR Is a legal entity itself. 8

9

UDHAYA Yes. 10

11

ABR Correct? And you as an independent contractor is different from the 12

company, you understand that, right? 13

14

UDHAYA Yes, I do. 15

16

ABR When you receive the call from Encik Rahim between 18th to the 20th 17

where were you at that point of time? 18

19

UDHAYA At MDeC building in Cyberjaya. 20

21

ABR MDeC building. 22

23

UDHAYA MDeC. 24

25

ABR MDeC building. You were there for, for any particular company? 26

27

UDHAYA No, for MDeC, we were facilitating MDeC’s project at that time. 28

29

ABR Right. You were there facilitating, okay. Do you agree when Encik 30

Rahim spoke to you there was no, nothing specific about the Bank 31

Rakyat project? 32

33

UDHAYA Not in the details. 34

35

ABR Not in detail. 36

37


UDHAYA That’s what the meeting is about. 1

2

ABR Have you met Encik Razak before prior to 21.09.06? 3

UDHAYA No, I have not. 4

5

ABR Prior 2006, has Encik Rahim ask you to do any technical document for 6

presentation? 7

8

UDHAYA As a Plaintiff? 9

10

ABR Yes, from, I mean either you or Dr. Has he asked you to do any? 11

12

UDHAYA Yes, we did quite a number. 13

14

ABR You did quite a number of presentations. 15

16

UDHAYA Presentations and work. There were multiple projects that we did. We 17

were there close to seven years on and off. 18

19

ABR That is for Bank Islam. 20

21

UDHAYA Yes. 22

23

ABR Other than Bank Islam. 24

25

UDHAYA Other than Bank Islam, I think there was one time he requested a 26

presentation for a Sri Lanka’s bank to be sent to Encik Razak. So we 27

sent it by e-mail. I can’t remember the exact time. 28

29

ABR This is before the meeting on the 31st of September. 30

31

UDHAYA Yes. 32

33

ABR Did you been in Cherating before the presentation? 34

35

UDHAYA No. 36

37


ABR No, you didn’t. If you look at your Q&A 7. 1

2

UDHAYA Yes. 3

ABR Yes. 4

5

UDHAYA Yes. 6

7

ABR You said that during the lunch meeting at Cyber Lodge in Cyberjaya, 8

okay. Rahim and Razak suggested to the Plaintiff that a proposal with 9

the Plaintiff providing operation in support with the SecondDefendant 10

providing system support for Bank Rakyat project could be presented 11

to Bank Rakyat, okay. And you agree, this what was said on the 12

alleged conversations was, were suggestions by Rahim. 13

14

UDHAYA Your question again? 15

16

ABR Okay. You’ll recall that this whatever you claim to be have, to have 17

been said on the 21.09.06, they were suggestions by Rahim. Do you 18

agree? 19

20

UDHAYA Mostly Encik Rahim suggested that we become partners with 21

Silverlake supporting the systems and we. 22

23

ABR They were \ suggestions. I just want to know it was his suggestions. 24

He suggested. 25

26

UDHAYA Yes. 27

28

ABR Yes because he wanted you to explore the potential of working with 29

the parties. 30

31

UDHAYA That I disagree. 32

33

ABR Okay. To not explore. 34

35

UDHAYA No, that was basically telling us, asking us to take charge of the 36

operations. 37


1

ABR That telling you to take charge of the operation. 2

UDHAYA Yes. They were convincing us to take part in it. 3

4

ABR Okay, they were convincing you. Can I refer you in your Q&A 7? 5

6

UDHAYA Yes. 7

8

ABR Can you point out to me anywhere in your Q&A 7, that you say that 9

Rahim had convinced you to take charge of the Bank Rakyat project? 10

11

UDHAYA I need to read through this. 12

13

ABR Yes. 14

15

UDHAYA I think it’s the third paragraph, Rahim also propose that the Plaintiff do 16

agree to be propose, to be the propose partner to manage the 17

operation of the out sourcing project for Bank Rakyat and to use the 18

Second Defendant’s credit card system. Meaning the Plaintiff would 19

provide the operation support whilst the Second Defendant will 20

provide the system support for the project. And then he went on to ask 21

us to prepare the high level business case. 22

23

ABR Do you agree whatever was said it was proposal, it was not asking 24

you to join, ask you to consider it. Correct? 25

26


28

ABR You disagree. Do you agree with me that when Rahim met up with 29

you and Dr Narayanan it was the exploration of the possibility of 30

working together on the Bank Rakyat project? 31

32


34

ABR You disagree. Do you agree that at the point when Rahim approach 35

you, Bank Rakyat was close to appoint MBf as their, for their card 36

system? 37


1

UDHAYA Sorry, again at the point. 2

ABR Do you agree at the point when on the 21.09.06, when 3

Encik Rahim saw you with Dr Narayanan Bank Rakyat was at the 4

point or verge of giving or employing the services of MBf Cards, MBf, 5

MBf card system? 6

7

UDHAYA Either on the verge of appointing or already verbally appointed or 8

something like that. 9

10

ABR Appointed. So do you agree at that point in time, it was no, it was 11

uncertain for any party to have been able to get the project from Bank 12

Rakyat when you met with Encik Rahim on the 21.09.06. 13

14

[00:30:00] 15

16

UDHAYA I think. 17

18

ABR No, the question. My question is do you agree on the 21.09.06, it was 19

uncertain that any party would have gotten the project from Bank 20

Raykat? 21

22

UDHAYA We didn’t feel that’s how Encik Rahim or Encik Razak. 23

24

ABR The question I’m asking you Dr, I ask you a very specific question. Do 25

you agree at that point in time on the 21.09.06, nobody at the during 26

the lunch, could have been certain about getting or securing the 27

project from Bank Rakyat. You agree or disagree? If you disagree it’s 28

fine. 29

30


32

ABR You disagree, that’s fine. Do you agree that when Encik Ibrahim met 33

with you and Dr Narayanan on the 21.09.06. 34

35

YA Encik Rahim. 36

37


ABR Sorry, Encik Rahim. Encik Rahim when he met you on the 21.09.06, 1

he told you how he knew about Bank Rakyat interest to outsource 2

their card operations. 3

4

UDHAYA Your question is at that time he knew? 5

6

ABR Yes. 7

8

UDHAYA Encik Rahim knew. 9

10

ABR Yes. He told what was the reason. 11

12

UDHAYA On the phone call or in the. 13

14

ABR At the meeting on the 21.09.06. 15

16

UDHAYA At lunch meeting. Yes. 17

18

ABR Yes. What did he tell you? 19

20

UDHAYA Basically there was an opportunity with Bank Rakyat and Silverlake 21

has already gone in but only on the systems require us to come in to 22

complement the card operation and it’s supposed to be two separate 23

proposal and that way they can, at that time maybe he didn’t mention 24

dislodging MBf but they need to go in with the card operations as well. 25

And ask us to prepare a proposal to that effect. 26

27

ABR Did, my instructions are Encik, Mr Udhaya. 28

29

UDHAYA Yes. 30

31

ABR That Encik Rahim told you that he found out from his management 32

that Bank Rakyat wanted to collaborate with Bank Islam for their card 33

centre and they wanted to use the same platform as Bank Islam uses. 34

That’s how he found out. Yes? 35

36

UDHAYA That’s not what he told us. 37


ABR That’s not what he told you. 1

2

UDHAYA Yes. 3

4

ABR Okay and he said that he told you that Bank Rakyat was not interested 5

with. No Bank Islam was not interested work with Bank Rakyat 6

because of various issues. 7

8

UDHAYA I don’t think he mention that on the 21st. 9

10

ABR Do you think, you can’t recall or you’re not sure? 11

12

UDHAYA No, I don’t think 13

14

ABR Or which one is it. 15

16

UDHAYA No, I don’t think he mentioned that. 17

18

ABR He didn’t mention that. I put it to you that Encik Rahim told you that he 19

found about Bank Rakyat’s outsourcing opportunity because from the 20

management, his management whereby Bank Rakyat wanted to use 21

the same platform as Bank Islam. You agree or disagree? 22

23

UDHAYA He mentioned that when? On 21st? 24

25

ABR On 21st September. 26

27

UDHAYA No. 28

29

ABR You disagree. 30

31

UDHAYA I disagree, yes. 32

33

ABR And I put it to you that he also mentioned to you that the management 34

of Bank Islam was not interested to work with Bank Rakyat because of 35

several issues. 36

37


UDHAYA Not at that time. 1

2

YA Are you confining to the 21st September meeting? 3

4

ABR Yes. We’re still at on the lunch on 21.09.06, Mr Udhaya. 5

6

UDHAYA Yes. 7

8

ABR 21.09.06. How long was that lunch? 9

10

UDHAYA It’s a normal lunch hour, one hour to maybe almost one and half hours 11

or so because I remember Dr getting a call from MDeC saying delays. 12

13

ABR Yes? About one hour, two hours? One and half hours? 14

15

UDHAYA One and half to two hours, maybe, one hour forty five minutes. I’m not 16

sure. But it’s definitely longer than the normal one hour. 17

18

ABR What was the prime focus of the lunch conversation? 19

20

UDHAYA Well, the prime focus and the urgency of the matter was that they 21

wanted us to come in to provide the card operations. 22

23

ABR Yes. 24

25

UDHAYA And get the proposal done to take that portion of the work in 26

collaborations with Silverlake providing the system. 27

28

ABR Right. Did you discuss any other matter? 29

30

UDHAYA Yes, I think he wanted us to he means both Encik Rahim and Encik 31

Razak also wanted us to prepare the proposals in terms of power 32

point. That was the urgency they wanted so that over the weekend 33

they can actually review that. 34

35

ABR Did you have any, did you or Dr Narayanan have any relationship with 36

Bank Rakyat prior to during the lunch. Prior to 2006. 37


UDHAYA No, I don’t have. 1

2

ABR Do you agree that at the lunch everyone on the table didn’t know what 3

was a specific requirements required by Bank Rakyat for their project? 4

The specific requirement. 5

6

YA Everyone? 7

8

ABR Yes. Everyone at the lunch. 9

10

YA Didn’t know. 11

12

ABR Didn’t know including him. 13

14

YA Can you repeat the question? 15

16

ABR Because he would. Okay I’ll repeat the question. Were you aware of 17

the specific requirements of Bank Rakyat at the lunch on 21.09.2006? 18

19

UDHAYA Not the detail specifics but over view, generally what is required. 20

21

ABR The question is did you know the specific details on requirements of 22

Bank Rakyat on 21.09.06? 23

24

YA Did you know the details? 25

26

UDHAYA No. 27

28

ABR Do you agree at that point in time on the 21.09.2006, you and Dr 29

Narayanan did not know what was the costing involved for the Bank 30

Rakyat project? 31

32

UDHAYA Sorry, costings of? 33

34

ABR Of the, the entire project that you and that you’re interested in. 35

36

UDHAYA No, not at the lunch. 37


1

ABR You didn’t know about the revenue as well at the lunch. 2

3

UDHAYA At the lunch, no. 4

5

ABR Resources required for the project. 6

7

UDHAYA No that was the reason we’re building the high level. 8

9

ABR That. My question is we can make it very simple, Mr Udhaya. 10

11

UDHAYA Yes. 12

13

YA The resources. 14

15

ABR I just ask question, you just answer yes or no, you know. 16

17

UDHAYA Sure. 18

19

ABR Okay? 20

21

YA Resources. 22

23

ABR Resource, sorry Yang Arif. At that point of time, you’re not aware of 24

any resources required for the Bank Rakyat project. Agree? 25

26

UDHAYA Yes. 27

28

ABR Yes. So at that point in time no talk about capitals required, scope of 29

work, payment, charges. 30

31

UDHAYA At the lunch? 32

33

ABR Yes. 34

35

UDHAYA No. 36


ABR So it is fair to say that it, yes, sorry Yang Arif. I put it do you agree with 1

me that since so many details have not been finalised, do you agree 2

with that there was no agreement reached between the parties as 3

regards the Bank Rakyat project on 21.09.06. 4

5


7

ABR I put it to you that on 21.09.06, it was just a exploratory meeting 8

between the parties. 9

10


12

ABR Do you agree with me that on 21.09.06, there was no agreement 13

signed between the Plaintiff or with any parties to the lunch? 14

15

UDHAYA No agreement signed, yes. 16

17

ABR Dr Narayanan suggested that, that Encik Rahim was representing 18

Bank Rakyat. Are you aware of that? 19

20

UDHAYA Dr Narayanan? 21

22

ABR Are you aware of the suggestion that Encik Rahim had represented 23

himself as representing Bank Rakyat? 24

25

UDHAYA He think independent consultant? 26

27

ABR Yes. 28

29

UDHAYA Yes. 30

31

ABR Okay, that you can see it at Q&A 7, the second paragraph, right. 32

33

UDHAYA Yes. 34

35

ABR Right. How did Encik Rahim make this suggestion that he is an 36

independent consultant appointed by Bank Rakyat? 37


UDHAYA That’s what Encik Rahim said. 1

2

ABR He said that he is. 3

4

UDHAYA Yes. 5

6

ABR Okay. Is there anywhere in writing in the Bundle that suggest that 7

Encik Rahim was an independent consultant for Bank Rakyat? 8

9

UDHAYA No, we didn’t ask for anything in writing. 10

11

ABR Did you independently investigate that Encik, what you say that Encik 12

Rahim said as an independent consultant? 13

14

UDHAYA No, we trusted Encik Rahim for seven over years that we have been 15

working with him. 16

17

[00:45:00] 18

19

ABR Did he give you any letter of appointment to show that he was 20

appointed by Bank Rakyat as an independent consultant? 21

22

UDHAYA No, we didn’t request. 23

24

ABR You didn’t request. Did he give a name card to you indicating that he 25

was representing Bank Rakyat? 26

27

UDHAYA No, only his verbal expression. 28

29

ABR Verbal expression. Are you aware that Encik Rahim from 15.09.06 to 30

March 2008 was a full time employee of Bank Islam Malaysia Berhad? 31

32

UDHAYA Yes. 33

34

ABR Yes. 35

36

YA To March? 37


1

ABR March 2008, Yang Arif. Other than what you say that Encik Rahim had 2

said to you that he was independent consultant for Bank Rakyat, 3

you’ve no other evidence to show that Encik Rahim was in fact a 4

consultant with Bank Rakyat. 5

6

UDHAYA No other evidence. 7

8

ABR Do you agree that Bank Rakyat awarded or sign an agreement to 9

award Second Defendant with an outsourcing project on 21.11.07? 10

11

UDHAYA Yes. 12

13

ABR Yes. Do you agree that Bank Rakyat and Bank Islam have similar 14

business model? 15

16

UDHAYA Similar business model. 17

18

ABR Yes. Islamic banking and. 19

20

UDHAYA Yes, Islamic banking, yes. 21

22

ABR Yes. Do you agree that Bank Rakyat and Bank Islam are in fact 23

competitors? 24

25

UDHAYA Yes, they can be. 26

27

ABR Yes. Do you agree that the between September 2006 to March 2008, 28

First Defendant was not employed by Bank Rakyat or not employee of 29

Bank Rakyat? 30

31

UDHAYA Encik Rahim not employee, yes I agree. 32

33

ABR Do you agree that between September 2006 to March 2008 or until 34

today, Encik Rahim is not a member of the Board of Directors of Bank 35

Rakyat? 36

37


UDHAYA I only know until he left Bank Islam, until that time. 1

2

ABR Was not member of, a member of the Board of Directors of Bank 3

Rakyat? 4

5

UDHAYA Yes. 6

7

ABR Yes, he wasn’t right. 8

9

UDHAYA Not that I know of. 10

11

ABR Do you agree that Bank Rakyat has its own management structure to 12

evaluate any proposals? 13

14

UDHAYA Yes, I’m sure. 15

16

ABR Yes. Have you seen Encik Rahim attending any meetings with Bank 17

Rakyat regarding the outsourcing project? 18

19

UDHAYA No, not that I know of. 20

21

ABR Based on all the facts that I have said to you earlier, I put it to you that 22

Encik Rahim was never an independent consultant for Bank Rakyat. 23

24

UDHAYA Your question? 25

26

ABR Do you agree that based on what I have ask you earlier that Encik 27

Rahim was never a consultant for Bank Rakyat? 28

29

UDHAYA I cannot agree with you. 30

31

ABR You cannot agree. I put it to you also that Encik Rahim has never 32

represented to you that he was an independent consultant for Bank 33

Rakyat. 34

35


37


ABR I put it to you that Encik Rahim knew about the Bank Rakyat 1

outsourcing project because Bank Islam received a call from Bank 2

Rakyat whereby Bank Islam wanted, Bank Rakyat wanted to 3

collaborate with them but they can’t. But they refused to collaborate 4

with Bank Rakyat. 5

6

YA Whether he knows. 7

8

ABR Whether you know. You don’t know? 9

10

UDHAYA I do know and that’s how I think the independent consultant thing 11

came about. I think. 12

13

ABR You think. I put it to you that. 14

15

YA Just only what you know. 16

17

UDHAYA Sorry? 18

19

YA You just tell the court only what you know. 20

21

UDHAYA Okay. 22

23

ABR I put it to you that Bank Islam management decided against 24

collaborating with Bank Rakyat due to BAFIA Secrecy Provisions. 25

26


28

ABR Sorry, Yang Arif. 29

30

YA Question (00:52:07 inaudible)? 31

ABR No, I’m just putting it to him. Agree or disagree? 32

33

YA Do you know the? 34

35


37


ABR You don’t know. I put it to you that because Bank Islam and Bank 1

Rakyat are competitors and chasing for the same market share for 2

Islamic card that they could not have, they could not have engaged 3

Encik Rahim as an independent consultant for them. 4

5

YA If you know. 6

7

UDHAYA Do I know or do I? 8

9

ABR Do you agree that because Bank Islam and Bank Rakyat are 10

competitors, chasing the same market share for. 11

12

YA Why don’t you. You are putting it to him? 13

14

ABR Yes, I’m putting to the witness, yes. Sorry Yang Arif, I just. 15

16

YA They are chasing for the. 17

18

ABR Same market share, Yang Arif, so he could not have been the 19

independent consultant. 20

21

YA Bank Islam, Bank Rakyat have engaged as a consultant. 22

23

ABR Encik Rahim as independent consultant, yes. So. 24

25

YA Whether you agree, disagree, you know or you don’t know. 26

27

UDHAYA I. 28

29

ABR Maybe I just put it the witness, I just set it out.Ok. Do you agree that 30

Bank Islam and you have agreed with me that Bank Rakyat and Bank 31

Islam were competitors chasing the same market share for Islamic 32

card? You agree with me? 33

34

UDHAYA Competitors, yes. 35

36


ABR Yes. Do you agree with me that it is it does not make sense for Bank 1

Rakyat to have employed Encik Rahim as an independent consultant 2

for them since they are competitors? 3

4

UDHAYA No, I disagree there. 5

6

ABR So it make sense to you that a competitor to engage another 7

competitor to be an independent consultant for them. 8

9

UDHAYA The although it can have. 10

11

ABR No, the question is you agree or disagree. I. 12

13


15

ABR So it is possible. 16

17

UDHAYA Yes, it’s possible. 18

19

ABR Do you agree that Encik Rahim between the period of September 20

2006 to March 2008 did not have any apparent or ostensible authority 21

to act on behalf of Bank Rakyat? You understand the question. You 22

want me to repeat the question. 23

24

UDHAYA Yes. Repeat please. 25

26

YA (00:55:24 inaudible) 27

28

ABR Yes. Do you agree, you can answer either agree, disagree or I don’t 29

know, okay? 30

UDHAYA Okay. 31

32

ABR Do you agree that Encik Rahim between September 2006 to March 33

2008 did not have any apparent or ostensible authority to act on 34

behalf of Bank Rakyat? 35

36

UDHAYA To act on behalf of Bank Rakyat? 37


1

ABR Yes. 2

3

UDHAYA As an officer of Bank Rakyat. 4

5

ABR To act, to act in any capacity. 6

7

UDHAYA Well, that’s not what he said so I disagree. 8

9

ABR Disagree. Therefore when you said in your witness statement that 10

Encik Rahim was independent consultant appointed by Bank Rakyat 11

to undertake the evaluation process and he was in advantageous 12

position to ensure that the project to be awarded to the partner. You 13

had no basis to say that. 14

15

UDHAYA No basis to say he was officially appointed? 16

17

ABR Yes. 18

19


21

ABR I put it to you that your suggestion in paragraph 2 of Q&A 7, that was a 22

fabrication and therefore a lie. 23

24


26

ABR Can I refer you to Bundle 10? B 10. 27

28

UDHAYA Yes, I got it. 29

30

ABR Page 3903. Have you seen this letter at page 303 in Bundle 10? 31

32


34

ABR You have. When this letter was drafted by your lawyer, was it given to 35

you? 36

37


UDHAYA No. I was not involved. 1

2

ABR Not given to you. 3

4


6


8


10

SST No Yang Arif, we actually (00:59:04 inaudible) attachment to the letter. 11

12

YA Attachment. 13

14

SST Because there was objection by my learned friends. 15

16

YA Objection? 17

18

SST Yes. 19

20

ABR Do you agree in this letter there was no mention that Encik Rahim 21

being the independent consultant for Bank Rakyat? 22

23

UDHAYA I need to read through. 24

25

ABR Yes, you may. 26

27

[01:00:00] 28

29

UDHAYA And your question is whether Encik Rahim as an appointed? 30

31

ABR My question to you. 32

33

YA Not mentioned as an independent consultant. 34

35

ABR Yes, Encik Rahim was not mention in your letter that he was an 36

independent contractor for Bank Rakyat. 37


1

YA Consultant or contractor. 2

3

ABR Independent consultant, sorry. Independent consultant. 4

5

UDHAYA Yes, not in this letter, I agree. 6

7

ABR It was not mentioned in the letter. Do you agree that if it is an 8

important information it would have been mentioned in your, in this 9

letter? 10

11

UDHAYA I don’t know what’s the.. Yes, I can’t say. 12

13

ABR You can’t say. I’ll take that answer. Do you know when the first time 14

the word independent consultant was used in this, in your relationship 15

between Encik Rahim and Plaintiff? 16

17

UDHAYA Sorry? 18

19

ABR Do you know when was the first time the phrase independent 20

consultant for Bank Rakyat was used in? 21

22

UDHAYA By who, by Encik Rahim? 23

24

ABR By the Plaintiff in this case. 25

26

UDHAYA I can’t remember when. 27

28

ABR You can’t remember or you don’t know. 29

UDHAYA I can’t remember when. 30

31

ABR You need time to refresh your memory. 32

33

UDHAYA I doubt that I can remember. 34

35

ABR So you cannot even at all remember? 36

37


UDHAYA Yes. 1

2

ABR Yes? 3

4

UDHAYA Yes, when exactly the word independent consultant I can’t remember. 5

6

ABR You can’t remember when it was first used. 7

8

UDHAYA That particular phrase in reference to that I can’t remember. 9

10

ABR Surely such an important information like that who would have 11

remembered? 12

13

YA But you can’t remember? 14

15

UDHAYA I can’t remember. 16

17

ABR He can’t remember many things My Lady in this trial. Is it possible that 18

was, can I refer you to the Bundle of Pleadings? Yes? 19

20

UDHAYA Yes, I got. Page? 21

22

ABR Page 43. Were you involved in the preparation of this Statement of 23

Claim? 24

25

UDHAYA Actual drafting of this. 26

27

ABR Yes. Drafting. 28

29

UDHAYA No. 30

31

ABR No. 32

33

UDHAYA I was not. 34

35

ABR Were you given a copy of this Statement of Claim to approve or to 36

vet? 37


1

UDHAYA No, I don’t think so. 2

3

ABR No. So it was Dr Narayanan who actually vetted and prepared this 4

together with their counsel with this Statement of Claim. Is it right? 5

6

UDHAYA Prepared I think there was few meetings and all that with the counsel 7

also. 8

9

ABR Were you involved? I’m asking whether you, okay. Were you involved 10

in the preparation of this Statement of Claim? 11

12

UDHAYA This Statement of Claim specifically, no. 13

14

ABR No. Okay. So did you attend any meeting for the preparation of 15

witness statement, with this Statement of Claim? 16

17

UDHAYA This and a few others, yes. 18

19

ABR No this Statement of Claim. 20

21

UDHAYA I wouldn’t know. 22

23

ABR The question is simple. Did you, were you involved in the preparation 24

of this Statement of Claim. 25

26

UDHAYA Like I said, I don’t think the drafting of this I was involved. 27

28

ABR Was there a meeting whereby you discussed the Statement of Claim? 29

UDHAYA Not that I was involve. 30

31

ABR So let me get it right here. You were not involved in the preparation 32

either during the drafting or fact finding. 33

34

UDHAYA No. Drafting of the Statement of Claim? 35

36

ABR Yes. 37


1

UDHAYA I was not. 2

3

ABR You were not at all involve. 4

5

UDHAYA No. 6

7

ABR Were you still with the Plaintiff, I mean were you still a consultant for 8

the Plaintiff when? 9

10

UDHAYA No, I’m not. 11

12

ABR This suit was filed. 13

14

UDHAYA After Bank Rakyat I’ve not done any project with Plaintiff. 15

16

ABR After Bank Rakyat you’ve not done any? 17

18

UDHAYA Yes. 19

20

ABR So basically this Statement of Claim was drafted, was, how do I put it. 21

You had no input in the preparation of this Statement of Claim. 22

23

UDHAYA I cannot say that. Input means some of the datas and all that, yes. 24

25

ABR Okay. Some of datas. 26

27

UDHAYA Yes. Some of the dates and some information. 28

29

ABR What were the information that you supplied for this Statement of 30

Claim? Can you be specific? 31

32

UDHAYA For instance the figure in 12.8, RM140 million over seven years 33

operational period. The numbers come from my. 34

35

ABR Sorry, one by one. 36

37


UDHAYA Sorry, 12.8. 1

2

ABR Yes. 3

4

UDHAYA Second last line, revenue would be in the region of RM140 million 5

over seven years operational period. 6

7

ABR Right. 8

9

UDHAYA Those numbers and all that my input in collaboration with Dr . 10

11

ABR That’s your input in collaboration of. 12

13

UDHAYA Yes. 14

15

ABR Dr. What about any, okay. Can we go page by page if I look at page 16

43? Right. Any input from you on page 43. 17

18

UDHAYA I don’t think required. 19

20

ABR Page 44. Considered you had the whole lunch time to look at this. I’m 21

sure you can tell us which one is your input, which is not. 22

23

UDHAYA I didn’t look at it from there. I’m just reading it so now you’re asking 24

which one so I’m trying to figure out. 25

26

ABR Okay. 27

28

UDHAYA So here the First Defendant, Bank Rakyat appointed him as 29

independent consultant. I’m sure I had input with Dr Narayanan. 30

31

ABR Where is that, at page 44? 32

33

UDHAYA Page 44, number 5. 34

35

ABR Number 5. 36

37


UDHAYA Yes. I’m sure I had input in it. 1

2

ABR Okay. What else? 3

4

UDHAYA 8.1 in page 45. 5

6

ABR Okay. That’s your input. 7

8

UDHAYA In collaboration with Dr as well. 9

10

ABR Okay. 11

12

UDHAYA 8.3, 8.2 as well I think. 13

14

ABR So I’m a bit curious when I ask you earlier whether you had look at 15

this Statement of Claim, right. You said you never seen this Statement 16

of Claim when it was drafted. Do you recall that? 17

18

UDHAYA Yes. 19

20

ABR Yes. And now when we’re going through this Statement of Claim, you 21

claim you had an input there, okay. 22

23

UDHAYA It’s raw data and facts. 24

25

ABR Okay this. 26

27

UDHAYA How that is constructed into this Statement of Claim, I got, I was not 28

involved. 29

30

ABR The raw data and facts, you were not involved. 31

32

UDHAYA No raw data and all that I was involve. 33

34

ABR Okay raw data. 35

36


UDHAYA How that is constructed into this Statement of Claim, I think it was 1

largely Mr TA and Dr Narayanan I suppose. 2

3

ABR Right, okay. Do you agree that in the, in this Statement of Claim, this 4

is the only, this was the first time, it was at, at paragraph 9.5. 5

6

UDHAYA 9.5. 7

8

ABR At page 47. Yes, you can see that. It was expressly and or impliedly 9

suggested inter alia that with FirstDefendant being an independent 10

consultant appointed by Bank Rakyat to undertake the evaluating 11

process. The FirstDefendant was in an advantageous position to 12

ensure that the outsourcing project will be awarded to partner that’s 13

approved or recommended by the First Defendant. Okay. And if you 14

look at paragraph 5 or at page 44. According to the First Defendant, 15

Bank Rakyat appointed him as its independent consultant to help 16

them in their validating of decision of approving MBf as the proposed 17

principle partner and to evaluate MBf’s proposed terms and conditions 18

of appointment for the project. 19

20

UDHAYA Your question. 21

22

ABR My question is that this was the first time that any suggestion that 23

Encik Rahim was an independent consultant appointed by Bank 24

Rakyat. 25

26


28

ABR (01:13:34 inaudible). 29

30

UDHAYA That’s not the first instance. 31

32

ABR Can you produce any written documentation that show, that 33

suggested that Encik Rahim as was an independent consultant 34

appointed by Bank Rakyat? 35

36

UDHAYA I’ve clarified earlier there’s no document or business card. 37


1

[01:15:00] 2

3

ABR Do you agree that during the meeting on 21.09.06, there was no 4

discussion about IICSO? 5

6

UDHAYA No discussion about IICSO or another third company. 7

8

ABR I want to ask you a specific. Do you agree at the meeting on 21.09.06, 9

there was no discussion about IICSO? 10

11

UDHAYA Yes, I agree. 12

13

ABR What I’m doing My Lady I’m trying to skip the questions that have 14

been. 15

16

YA Otherwise you’ll be standing for more than an hour. 17

18


20

YA Do you need a short break? 21

22

ABR Yes, thanks. 23

24


26

AKHIR 27

28

MASA : 2:56 PM 29

30

31

32

33

34

35

36

37


TARIKH : 21.08.2014 1

MASA : 3:07:55 PM 2

MULA 3

4

Sambungan Pemeriksaan Balas (Continued Cross Examination by ABR) 5

MASA: 3.08 PM 6

7

ABR Dengan izin Yang Arif. Mr. Udhaya, do you agree with me that 8

between September 2006 to March 2008, Encik Rahim was not 9

gainfully employed by the Second Defendant? 10

11

UDHAYA Sorry, gainfully employed by Silverlake? 12

13

ABR He was not under employment of Second Defendant? 14

15

UDHAYA Yes. 16

17

ABR Do you agree that between September 2006 to March 2008, the First 18

Defendant was not a Director of the Second Defendant? 19

20

UDHAYA I really don’t know. I didn’t check. 21

22

ABR Can I refer you to Bundle-10 at page 3938? Can you look at page 23

3938 to 3946? Do you agree that Encik Rahim is not listed as a 24

Director of the Second Defendant? 25

26


28

ABR Do you agree that Encik Rahim also is not a shareholder of the 29

Second Defendant? 30

31

UDHAYA I would have to, because it is a public listed. 32

33

ABR It is not a public listed company. It’s a private company. 34

35

UDHAYA Sorry. I think so. I probably have to agree with you. 36


1

ABR Do you agree that the Second Defendant is an independent company 2

with its own shareholders and Board of Directors? 3

4

UDHAYA Yes, I have to agree there. 5

6

ABR Do you agree that the Second Defendant has its own management 7

structure to evaluate and make their own business decisions in 8

respect of Bank Rakyat project? 9

10


12

ABR Do you agree between September 2006 to March 2008, the First 13

Defendant was not a consultant or the representative of the Second 14

Defendant? 15

16

UDHAYA I have to disagree. 17

18

ABR Are you suggesting that Encik Rahim is either a consultant or a 19

representative for the Second Defendant? 20

21

UDHAYA That’s what he claimed. 22

23

ABR That’s what he claims. Did he give you any written documentation to 24

show that he was either a representative or consultant for the Second 25

Defendant? 26

27

UDHAYA No written or business card or anything like that. 28

29

ABR Is there anywhere in the bundle here that can show that Encik Rahim 30

is either the representative or consultant for the Second Defendant? 31

32

UDHAYA No, I don’t have. 33

34

ABR Do you agree with me that the First Defendant between September 35

2006 to March 2008 did not have any apparent or ostensible authority 36

or de facto authority to act on behalf of the Second Defendant? 37


1

UDHAYA I have to disagree there. 2

3

ABR I put it to you that Encik Rahim never represented to you or Dr. 4

Narayanan or the Plaintiff that he was a representative or a consultant 5

on behalf of the Second Defendant. 6

7

UDHAYA He did represent so my answer should be I disagree. 8

9

ABR Agree or disagree? 10

11

UDHAYA I Disagree. 12

13

ABR I put it to you that you are fabricating your evidence when you said, it 14

is a fabrication when you say that Rahim was represented to you that 15

he was a consultant or representative of the Second Defendant. You 16

can agree or disagree. 17

18


20

ABR Can I refer you to Bundle-B3, page 871? 21

22

UDHAYA Yes I have. 23

24

ABR Can you see at page 871? This is your email, right? 25

26

UDHAYA Yes. 27

28

ABR You addressed it to Encik Rahim, right? 29

30

UDHAYA Yes, correct. 31

32

ABR And the email [email protected] belongs to Encik Rahim? 33

34

UDHAYA That’s correct. 35

36

mailto:[email protected]


ABR Do you agree in this email that you were asking for Encik Rahim’s 1

comments and feedback on your proposal, on the Plaintiff’s proposal, 2

yes? 3

4

UDHAYA Yes. 5

6

ABR Can you now look at page 916 ? Yes? 7

8

UDHAYA Yes I have that. 9

10

ABR This is another email from you to Encik Rahim, yes? 11

12


14

ABR This is also that you wanted him to look at your proposal, correct? 15

16

UDHAYA Correct. 17

18

ABR Can I refer you to page 965 of the same bundle? This is again your 19

email to Encik Rahim? 20

21

UDHAYA Yes. 22

23

ABR This email is purely for his information? ‘Attached is the PowerPoint 24

presentation that we gave to Silverlake on the proposal for 25

outsourcing project. Also attached is the original proposal without 26

pricing to SL for your reference’. 27

28

UDHAYA Yes. 29

30

ABR It’s just that you wanted to notify him? 31

32

UDHAYA Yes, that is correct. 33

34

ABR That’s correct. Can I now refer you to page 1026? Can you see the 35

document? 36

37


UDHAYA Yes. 1

2

ABR This is an email from Razak to you, right? 3

4

UDHAYA Sorry, from 1026? 5

6

ABR Yes 1026. Sorry, Rahim to you, yes. And you asked for his feedback, 7

to give his feedback to you, right? 8

9

UDHAYA Yes. 10

11

ABR If you look at page 1142, this email was from you correct? If you look 12

at the original message at the bottom part, you see that? 13

14

UDHAYA Yes. 15

16

ABR It says there from Udhaya to Narayan Dr., cc Encik Rahim and in fact, 17

it was an email from you to Dr. Narayanan and you copied to Encik 18

Rahim. That was for his information, presumably? 19

20

[00:15:00] 21

22

UDHAYA For his information input. 23

24

ABR But it didn’t’ say input. You just copied him. He never asked for input. 25

It was meant for Dr. Narayanan and he replied Uday, thanks and 26

noted, correct? 27

28

UDHAYA Yes. 29

30

ABR So it was for his information? Yes? 31

32

UDHAYA If you say that, then it’s also information for Dr. 33

34

ABR If you look at page 1143, the next page. It was your email to Dr. 35

Narayanan. I assume that you wanted to send to Rahim but then it 36


was not there because I don’t see a copy made to Rahim but in the 1

email, you said you wanted his input, if you can? 2

3

UDHAYA Yes. 4

5

ABR Basically you are asking Encik Rahim for his help, yes? 6

7

UDHAYA Yes. 8

9

ABR Can I now refer you to Bundle-B4? Page 1213, My Lady. This is from 10

you, right to Encik Rahim and Dr.Narayanan? 11

12

UDHAYA Yes. 13

14

ABR You said ‘Hi guys. Attached is the word document with some 15

recommendation taken up from other similar contracts and terms of 16

reference. Have a look and see if any of them will be worthwhile to be 17

incorporated into the agreement. The issues of credit foreign 18

development, operations set up and other data functions are not 19

mentioned anywhere. Any views on that?’ You were seeking Encik 20

Rahim’s views, correct? 21

22

UDHAYA Yes. 23

24

ABR Can I refer you to same bundle at page 1431? A copy was sent to 25

Encik Rahim and again in this email, Encik Rahim was one of the 26

individuals asked to advise Encik Razak, correct? On this particular 27

document? 28

29

UDHAYA Correct. 30

31

ABR If you look at page 1479 same bundle, this is a request from Razak for 32

Encik Rahim’s comments as well, isn’t it for the discussion the next 33

day, on Sunday? 34

35

UDHAYA Correct. 36

37


ABR Can I now refer you to page 1529 same bundle? Alright, can you see 1

that? 2

3

UDHAYA Yes. 4

5

ABR t is your email, you are forwarding it to Rahim? You were just 6

forwarding an email from Razak to Rahim, right? 7

8

UDHAYA Yes. 9

10

ABR For his information, right or any views he has? 11

12

UDHAYA Basically, it’s Encik Razak’s request for input on revision and 13

discussion tomorrow. 14

15

ABR Encik Razak request from Encik Rahim? 16

17

UDHAYA Right and a request from Encik Razak and to Encik Rahim and myself 18

copied to Mr. Chee and I think in this case, if I remember clearly, he 19

didn’t get it so I forwarded it. If I recall right. 20

21

ABR Can I now refer you to 1531 same bundle? This is from you to Razak, 22

Encik Rahim and Dr. Narayanan. Basically this email is from you to 23

Encik Razak, correct? 24

25


27

ABR And you were just copying Encik Rahim? 28

29

UDHAYA No, I think it’s also to inform that based on my review of the 30

agreement, that these five points that I’ve highlighted. 31

32

ABR Yes, but it’s for Encik Rahim’s information. You’re not asking for a 33

feedback in this email because the email is addressed to Encik Razak, 34

isn’t it? ‘Hi Razak, I’ve gone through. Have the following comments’? 35

36

UDHAYA Yes, we’re keeping in the circulation. 37


1

ABR You wanted to keep him in the loop? 2

3


5

ABR If you look at page 1533, it’s from Rahim to you presumably from the 6

email that you had sent earlier at page 1531. He said ‘Ok, noted. 7

We’ve taken into account of the comments made’, correct? 8

9

UDHAYA Correct. 10

11

ABR And then at page 1535 same bundle, it’s an email from you to Razak 12

copied to Encik Rahim, correct? 13

14

UDHAYA Correct. Resending the inaudible (00:25:27). 15

16

ABR So it was more of copying Encik Rahim, really isn’t it? This email. 17

18

UDHAYA Keeping him in the loop. 19

20

ABR Keeping him in the loop. Can I now refer you to page 1538 of the 21

same bundle? Alright, are you with me? 22

23

UDHAYA Yes I am. 24

25

ABR It’s from Razak to Rahim and to you, for your information? 26

27

UDHAYA Correct. 28

29

ABR It’s just information of either both of you? 30

31

UDHAYA Yes. 32

33

ABR Can I look at page 1580? This is an email from you to Encik Rahim, 34

yes? 35

36

UDHAYA Correct. 37


1

ABR And in this email, you said ‘Hi Encik Rahim, attached is the 2

PowerPoint presentation at a high level for the proposed tie up for the 3

prepaid of Debit card program. Please have a look.. They are keen to 4

go with the members growing at 300 to 500 per day. The most 5

important for them now is to have rebates and their members’ 6

earnings’ be converted to cash and they would like to transfer to the 7

prepaid or debit card through bulk credit. That means the company 8

universal rewards will pay out their members’ card account. The 9

members can then use the card to withdraw cash or make purchases’. 10

So basically you were asking Encik Rahim for his views about this 11

universal rewards scheme that you’re thinking or proposing, correct? 12

Yes? 13

14

UDHAYA Yes. 15

16

ABR And then Encik Rahim at page 1581 responded to your email at page 17

1580 and he said ‘To discuss with more details. Thanks’. 18

19

UDHAYA Correct. 20

21

ABR Can I now refer to Bundle-B5, page 1653? This is your email, correct? 22

23

UDHAYA Correct. 24

25

ABR To Encik Rahim and copied to Dr. Narayanan? 26

27

UDHAYA Yes. 28

29

ABR You basically wanted to tell him that ‘attached is the comments of the 30

agreement. The agreement reflects poorly on the actual nature of the 31

agreement. More likely modified from Silverlake’s project type 32

agreement with their other IT vendor although the original intention 33

was to split the comments into IICS view point and SL view point. I 34

think we have to go with IICS which also include SL view point as 35

overall contract has to be reworked’. You were just informing your 36


decision, the Plaintiff’s decision, I mean whoever’s decision to, the 1

way forward, correct? 2

3

UDHAYA Yes. 4

5

[00:30:00] 6

7

ABR Can I refer you now to page 1783 of the same bundle? This is your 8

email to Encik Rahim copied to Dr. Narayanan, correct? 9

10

UDHAYA Correct. 11

12

ABR ‘Hi Encik Rahim. Attached is the presentation slides on the risk 13

management, payment terms, fraud and personnel’. Is it correct to say 14

that this is an email to inform him of your presentation slide? 15

16

UDHAYA Yes. 17

18

ABR Were you seeking his comments as well for the presentation slides? 19

20

UDHAYA I think keeping him in the loop. 21

22

ABR Keeping him in the loop. 23

24

YA Inaudible (00:32:28). I have to stand down for a while. We’ll come 25

back. 26

27

ABR Yang Arif, can we stop for the day? 28

29

YA Could you just give me a minute? 30

31

ABR Sure. 32

33


AKHIR 35

36

MASA : 3:40 PM 37

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