Bhavanash Sharma A/L Gurchan Singh Sharma v Aia Bhd (BA-12ANCC-3-02/2023)

BHAVANASH SHARMA A/L GURCHAN SINGH SHARMA (NO. K/P LAMA: A3390883)

JASMINDER KAUR CHAHAL (NO. K/P: 821124-14-5286) … PERAYU-PERAYU DAN AIA BHD (NO. SYARIKAT: 200701032867 [790895-D]) (dahulunya dikenali sebagai American International Assurance Bhd) … RESPONDEN [DALAM MAHKAMAH SESYEN DI PETALING JAYA DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO: BB-52NCC-20-05/2021 ANTARA AIA BHD (NO. SYARIKAT: 200701032867 [790895-D]) (dahulunya dikenali sebagai American International Assurance Bhd) … PLAINTIF

BHAVANASH SHARMA A/L GURCHAN SINGH SHARMA (NO. K/P LAMA: A3390883)

JASMINDER KAUR CHAHAL (NO. K/P: 821124-14-5286) … DEFENDAN-DEFENDAN] GROUNDS OF JUDGMENT Introduction [1] This Appeal was filed against the Order of the Sessions Court dated 31-1-2023 that dismissed the Appellants/Defendants’ application in Enclosure 84 in the Court below. Enclosure 84 was filed on 27-10-2022 under Order 18 Rule 19 of the Rules of Court 2012 and/or the inherent jurisdiction of the Court to strike out the entire Statement of Claim (“SOC”) on grounds that:

pursuant to an Order of the High Court dated 15-9-2022 (“HC Order”), the SOC had been struck out automatically on the Respondent/Plaintiff’s failure to furnish further and better particulars of its SOC (“F&BP”) within 2 days of the HC Order; and

the F&BP served on 22-9-2022 was incomplete. [2] I will refer to the parties as they were in the Court below. Background Facts [3] The HC Order had reversed an earlier Order of the Sessions Court that dismissed the Defendants’ application for F&BP. Consequent to that reversal, it was understood by all parties that the prayers in the application for F&BP were therefore allowed, including the prayer for a default Order that the SOC be struck out if the F&BP is not furnished within 2 days: [4] There was no further appeal against the HC Order. [5] In dismissing Enclosure 84, the Sessions Court decided as follows:

An extension of time was allowed to regularize the late service of the F&BP. There was a delay of only 3 days [excluding the weekend on 17-9-2022 and 18-9-2022 per Order 3 Rules 2 and 4 of the Rules of Court 2012] in serving the F&BP. Order 2 Rule 1 and 3 of the Rules of Court 2012 empowered the Sessions Court to exercise its discretion to consider an application for extension of time in the interest of justice even though it was not filed promptly. The Defendants had not objected to the service of the F&BP on 22-9-2022 and even served their Reply to the Counterclaim Defence on 5-10-2022.

The complaint that the F&BP furnished pursuant to the HC Order was incomplete because no 2013 valuation report was furnished was rejected because no particulars of such valuation report was requested or pleaded in this action. The alleged unfulfilled request for F&BP relates to paragraph 9 of the SOC: On 2-9-2021 following a request by letter for details of the public auction, the Plaintiff’s former solicitors, Sidek Teoh Dennis & Wong (“STDW”), had already furnished copies of 7 Proclamations of Sale and a valuation report dated 26-8-2020, containing all the particulars requested. Analysis and Findings [6] This Court is bound by Section 28(1)(c) of the Courts of Judicature Act 1964 to dismiss this Appeal on grounds that the appeal is incompetent (See Azinal Sdn Bhd v. Jannath Gani & Ors And Other Appeals [2024] 4 CLJ 335 (“Azinal”) on the interpretation of the equivalent section 68(1)(f) of the Courts of Judicature Act 1964 for appeals to the Court of Appeal). [7] The amendments to the Courts of Judicature Act 1964 to expand the list of non-appealable matters was held in Azinal to have retrospective effect. In this case, Enclosure 84 itself was filed on 27-10-2022 after the amendment to disallow appeals on any dismissal of a striking out application came into effect on 1-10-2022 and so there is no question that Section 28(1)(c) of the Courts of Judicature Act 1964 applies. There are no grounds cited why there should be an exception for an appeal on Enclosure 84 to be entertained since it is an application to strike out a pleading that was dismissed by the Sessions Court and falls squarely within the provision. [8] Accordingly, the appeal is dismissed in limine for this reason alone. [9] On the merits, it is noted that ultimately, the Sessions Court applied Order 3 Rule 5 of the Rules of Court 2012 to extend the period within which the Plaintiff was required by the HC Order to furnish the F&BP, found that the application for extension of time in Enclosure 86 to be bona fide, and allowed it with costs in the cause. [10] Enclosure 86 was filed after Enclosure 84, and the reasons for the admitted delay in furnishing the F&BP were as follows:

on the same day the High Court made the HC Order, it also allowed an appeal pertaining to the Plaintiff’s legal representation. On the Defendants’ application, the Plaintiff’s former solicitors, SDTW, were discharged and barred from further acting for the Plaintiff.

On 21-9-2022, SDTW made a request to the Defendants for an extension of time for the Plaintiff to appoint new solicitors and to serve the F&BP but the request was refused by the Defendants. The Plaintiff’s current solicitors were appointed on 22-9-2022 and promptly served the F&BP on the same day. [11] As Enclosure 86 was reversed by another High Court on 9-8-2023 and is pending appeal at the Court of Appeal to be heard on 15-4-2025, I reserve any comment on the merits of that application. [12] Now, the Defendants have taken the position that the SOC had been automatically struck out pursuant to the HC Order regardless of the outcome of Enclosure 84. There was no Order drawn up in respect of what was allowed by the F&BP application with the HC Order. As mentioned at the outset, it was understood by all parties that the prayers in the application for F&BP were allowed when the HC Order reversed the corresponding Order of the Sessions Court, and remitted the case to be heard before another Sessions Court Judge. [13] According to Reiss v Woolf [1952] 2 All ER 112 cited by the Defendants, if the act of non-compliance is ambiguous then the striking out is not automatic but an application to strike out ought to be filed. If the terms of the order are clear and the act of default is also clear, then the act of default may result in stipulated consequence without further order as determined in Pertubohan Berita Nasional Malaysia v Stephen Kalong Ningkan [1982] CLJ Rep 266. [14] Disregarding the question of adequacy of the F&BP furnished on 22-9-2022 for the moment, and considering only the ground that the F&BP was furnished 3 days out of time, paragraph 4 of the F&BP application reproduced at paragraph [3] above does mean that the SOC is struck out without the necessity for a further order. As this may be a relevant factor in the appeal in Enclosure 86, I leave the consequences of paragraph 4 of the F&BP application on the action to be decided by the Court of Appeal. [15] On the alternative ground for striking out, namely that the F&BP furnished were incomplete, this Court finds no fault in the reasoning of the Sessions Court Judge in rejecting the alternative ground for striking out the entire action. [16] By way of obiter dicta, the action in the Court below is an action by a lender against defaulting borrowers on a RM964,750.00 housing facility secured with an assignment of a property at The Vale@Sutera Damansara (“Property”). The action in the court below was for the recovery of the balance remaining due after the proceeds of the public auction of the Property and is not the forum to challenge the propriety of the auction proceedings that has concluded. Thus one may question the relevance of F&BP requested of the auction proceedings. [17] As a further observation, there seems to be a conflation of a request for particulars and discovery of documents by the Defendants and an over-reach in the F&BP application in seeking the default order that was granted, that is for the entire action be struck out for failure to furnish F&BP in respect of only paragraph 9 of the SOC. Conclusion [18] This appeal is dismissed with costs of RM5,000.00 and the Sessions Court Judgment dismissing Enclosure 84 in the Court below is affirmed. Bertarikh : 3 Mac 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu-Perayu: Bhavanash Sharma (with Amanda Lim), Messrs Bhavanash Sharma Untuk Responden: Koh Pei Siah, Messrs Wong Hok Mun