KUALA LUMPUR (Aug 30): An ex-director of SRC International Sdn Bhd has brought a third party notice against Tan Sri Ismee Ismail and Datuk Shahrol Azral Ibrahim Halmi, who were also members of the company's board, to reinstate them as defendants in the US$1.18 billion suit initiated by the former 1Malaysia Development Bhd (1MDB) subsidiary, after their removal last month.
Datuk Mohammed Azhar Osman Khairuddin is also seeking from the High Court, should he be found liable by SRC in its suit, that Shahrol and Ismee either jointly or individually fully indemnify him against all losses suffered by him and against all damages that may be awarded against him.
Alternatively, both of them may jointly or separately contribute portions deemed fit and proper by the court for losses he may suffer and against damages that may be awarded against him.
He is further seeking costs incurred from defending against SRC's claim, including legal fees.
Azhar's application was filed by the firm of Messrs Chooi & Company + Cheang & Ariff at the High Court on Aug 27.
In his third party notice sighted, Azhar claimed there is no basis in law that he be made liable or accountable for SRC losses following the proceeds that it received from the Retirement Fund Inc (KWAP) loan which was disbursed to the company on Aug 29, 2011 and March 28, 2012, when he was not even a director of the company then.
“Hence, in the unlikely event D4 (Azhar) is found liable for any or all of the SRC's claims, he claimed that both Ismee and Shahrol either jointly or severally be found liable to indemnify or contribute such portion that the High Court deems fit,” the legal document said.
Ismee was one of the key witnesses in the SRC trial, where former prime minister Datuk Seri Najib Razak was found guilty of abuse of power with regards to the RM4 billion KWAP loan, and three counts each of criminal breach of trust and money laundering of RM42 million.
In addition, Shahrol had also testified in the ongoing 1MDB trial where Najib is also the accused.
Those maintained in the SRC suit besides Azhar and Najib were former SRC directors Datuk Suboh Md Yasin, Datuk Che Abdullah @ Rashidi Che Omar, and fugitive Nik Faisal Ariff Kamil.
Grounds of Azhar's claim
Azhar was SRC director from July 29, 2014 and subsequently, he resigned on Feb 22, 2017.
In the legal document filed, he claimed that Shahrol was one of the SRC directors since Aug 1, 2011 and he resigned on May 15, 2012.
The impugned transactions involving the KWAP loan took place during Shahrol's tenure, which included the subsequent dealings with the KWAP loans that included the transfer of RM3.6 billion and the transfer of US$82,000 to Nik Faisal.
The document also claimed that some US$120 million belonging to SRC was transferred between 2011 and 2012 to Najib's accounts under his control, as well as a transfer of US$15 million on Dec 27, 2011 to Muraset Ltd from SRC BVI's account.
Meanwhile, Ismee was SRC director since Aug 1, 2011 and resigned on Aug 15, 2014, when the disbursement of the KWAP's RM4 billion loan occurred and the subsequent transfers of RM3.6 billion from the said loan to other entities that the SRC statement of claim (SOC) stipulates the utilisation of the funds had changed its investment structure.
Azhar said as far as he is concerned he denied each and every assertion made by SRC as he was not a director of the company at the material times, or had not dishonestly assisted Najib in the misapplication of the KWAP proceeds.
“D4 (Azhar) states that there is no basis in law and fact that he be made liable or accountable to SRC as a constructive trustee of the proceeds of the KWAP loans disbursed into the company's AmIslamic accounts on Aug 29, 2011 and March 28, 2012,” he said in the legal document.
Counterclaim and defence
Besides this, Azhar had also today filed his defence and counterclaim to the SRC suit, where he emphasised the allegations of wrongful utilisation and misappropriation with regards to the RM4 billion KWAP loans took place when he was not the company's director.
“Further, at all material times, I had no knowledge, or was privy to, or had in any manner participated in the wrongful utilisation, misappropriation or embezzlement of the said investment to SRC's detriment. As apparent in the allegation it took place when Shahrol and Ismee were directors of SRC along with Suboh, Nik Faisal, Rashidi and Najib as the shadow director.
“The discontinuance of the action and its continuing prosecution against me is indiscriminate prosecution launched without foundation in fact and in law and in bad faith,” he said.
He further denied having conspired with others with regards to the losses suffered by SRC from the KWAP loan and it was wrong for the company to label him as conspirator, a dishonest assistant, or alleged he flouted and turned a blind eye in the dealings.
Azhar contended that the SRC suit against him is an actionable abuse of the court process to vilify him, expose him to opprobrium and scandal; and bring him to disrepute, out to destroy and damage his reputation, standing and career.
He further claimed that the suit is deemed as prosecution in a manner that unfairly burdens him and prejudicial to him resulting in unjustified trouble and harassment. Azhar alleges that SRC did not take serious steps to peruse or review its records towards blaming him for the RM4 billion KWAP loans.
The former SRC director denied that he had custody, control or dominion of the KWAP loan proceeds.
He further claimed that the subject matter and events relating to SRC and 1MDB along with Najib had affected his dignity, integrity as a professional, his private and family life due to the hurtful publicity generated, and the continuous action on him was done in bad faith.
For these reasons, he is seeking a court declaration the suit filed against him is an abuse of process and he sought general, exemplary and aggravated damages to be assessed.