BLJ Commercials Pte Ltd v Suntruck Sdn Bhd (WA-22NCC-632-09/2024)

BLJ COMMERCIALS PTE LTD [Business Registration No.: 201700079R]

CHEN BOON LEONG [NRIC No.: 670512016165] … PLAINTIFFS

SUNTRUCK SDN BHD [Business Registration No.: 1073367-W]

CHEN BOON KOH [NRIC No.: 620809015467]

CHEN BOON KENG [NRIC No.: 650903016375] …DEFENDANTS JUDGMENT (NO. 2) Introduction [1] This judgment deals with an application made under Order 24 rule 12 of the Rules of Court 2012 and or under the Court’s inherent jurisdiction under Order 92 rule 4 for the production of 2 promissory S/N X3YzluzYu0GecmTH/CxiVg notes which the 2nd and 3rd Defendants contended were forged documents (“Enclosure 29”). [2] However, Enclosure 29 was filed after the Plaintiff had obtained summary judgment against the Defendants in reliance on, inter alia, the said promissory notes as admission of liability. At the hearing of the summary judgment, the 2nd and 3rd Defendants did not dispute that they had signed the promissory notes at all. This gave rise to the legal question whether the Defendants were permitted in law to make the application for production of the documents in the circumstances of the case. [3] I did not think that the application had any merits and dismissed the same with costs. Background Facts [4] Enclosure 29 was the Defendant’s Notice of Application dated 6.1.2025 filed pursuant to Order 24 rules 12 and 13 and or Order 92 rule 4 of the Rules of Court 2012 (“the Application” or “Enclosure 29”) for: a) an order for production of two promissory notes both dated 15.4.2024 that were signed separately by the 2nd and 3rd Defendants respectively (“the Promissory Notes”); and b) the production of the Promissory Notes for forensic examination by the Department of Chemistry, Malaysia, an expert and or a forensic document examiner. S/N X3YzluzYu0GecmTH/CxiVg [5] The Application was filed after the Plaintiffs had obtained summary judgment of their claims on 20.11.2024 for the sum of GBP 357,250.00 premised on the Promissory Notes. [6] It is material to note that at no point prior to the Summary Judgment being allowed on 20.11.2024, did the Defendants raise any dispute whatsoever regarding their signing of the Promissory Notes. On the contrary, at the Summary Judgment stage, the 2nd and 3rd Defendants had expressly admitted to the signing of the Promissory Notes but alleged instead that the Promissory Notes were signed under coercion and or duress. [7] More specifically, the following were the various instances of admission to the signing of the Promissory Notes during the Summary Judgment proceedings: a) at paragraph 2(iii) of the letter issued by the Defendants’ solicitors in response to the Plaintiffs’ letter of demand (Exhibit CBL-3 of Enclosure 27) where the Defendants’ solicitors stated "[I]n regard to the promissory note, the debt amount was not specified; further it was made to repay such alleged debt within 6 months from the date of signing such promissory note i.e. 15.04.2024. Hence, your client shall only make such demand on 15.10.2024 when our Clients failed in repayment”;[emphasis added] b) paragraphs 14 of the Defendants’ Defence and Counterclaim dated 4.11.2024 (Enclosure 9): S/N X3YzluzYu0GecmTH/CxiVg “14. Nota janji tersebut telah ditandatangani pada 15.04.2024 dengan tarikh tamat pada 31.12.2024. Oleh itu, adalah pramatang bagi Plaintif plaintif untuk memulakan tuntutan ini pada bulan September 2024 atau melaksanakan kaveat ke atas harta atau memaksa penjualan hartanah tanpa memberikan justifikasi yang memadai berhubung pertanyaan tentang penyataan akaun yang telah dibangkitkan oleh Defendan defendan…” [emphasis added] c) paragraph 9 to 11 of the Defendants’ Affidavit in Reply dated 17.10.2024 (Enclosure 7); “9. Oleh kerana wujudnya Jumlah Tertunggak, pada 15.04.2024, Defendan Kedua dan Defendan Ketiga masing-masing telah mengeluarkan Nota-Nota Janji Hutang (Promissory Notes) (“Nota-Nota Janji Hutang” tersebut) kepada Plaintif-Plaintif di mana Defendan Kedua dan Defendan Ketiga:-…

Pada masa Defendan Kedua dan Defendan Ketiga mengeluarkan Nota-Nota Janji Hutang tersebut, iaitu pada tarikh 15.4.2024, Defendan Kedua dan Defendan Ketiga juga telah mengeluarkan cek bertarikh hadapan (post-dated cheque) bertarikh 15.5.2024 atas nama Plaintif Kedua dalam jumlah RM 500,000.00 sebagai bayaran sebahagian Hutang tersebut. Namun, apabila Plaintif Kedua cuba untuk menunaikan cek tersebut, cek tersebut dikembalikan (dishonoured).

Kami menafikan dengan tegas perenggan 17 Afidavit Plaintif-Plaintif dan menyatakan bahawa tandatangan kami pada Nota-Nota Janji Hutang (“promissory S/N X3YzluzYu0GecmTH/CxiVg notes”) yang bertarikh 15.04.2024 adalah dibuat di bawah tekanan. Plaintif-Plaintif telah datang ke pejabat kami dan mencetuskan kekecohan besar di hadapan semua kakitangan. Kami, Defendan Kedua dan Defendan Ketiga, tidak mempunyai pilihan selain memanggil abang sulung kami, iaitu Chen Boon Hwa ke pejabat untuk meredakan keadaan. Plaintif Kedua turut mengugut untuk menghentikan pembekalan lori dan mengancam untuk menggulungkan syarikat kami, iaitu Defendan Pertama, jika kami tidak menandatangani Nota-Nota Janji Hutang yang disediakan oleh Plaintif Kedua. Bagi meredakan situasi, abang sulung kami mencadangkan agar kami menandatangani Nota-Nota Janji tersebut terlebih dahulu. Kami juga ingin menegaskan bahawa semua kakitangan di pejabat pada waktu itu boleh menjadi saksi kepada kejadian tersebut...” [emphasis added] d) paragraph 6(b) and paragraph 21(b) of the Defendants’ Written Submissions dated 8.11.2024 (Enclosure 14): “6. The material facts leading to the present suit are as follows: … b) A promissory note was signed between the parties acknowledging an outstanding amount due under these 23 invoices, totalling RM2 million; …

… b) Economic Duress and Coercion in Obtaining Promissory Note S/N X3YzluzYu0GecmTH/CxiVg i) Coercion and Duress On 15 April 2024, the Plaintiffs pressured the Defendants into signing a promissory note under threat of halting supply. Such cessation would have severely impacted the Defendants’ cash flow, leading them to sign the note solely to ensure continued supply…” [emphasis added] [8] Notwithstanding the aforesaid, sometime on 7.1.2025, the Defendants filed their Amended Defence and Counterclaim and pleaded for the first time that their signatures on the Promissory Notes were forged and or alternatively that the Promissory Notes were signed by the 2nd and 3rd Defendants under coercion and or undue influence.

The Defendants deny paragraph 9 of the Statement of Claim. The Defendants reiterate paragraph 14 above and further state that at all material times, the 3rd Defendants has never issued and/or signed any promissory notes as stated in paragraph 9 of the Statement of Claim. If any, the Defendants contend that any promissory notes issued and/or signed by the 3rd Defendant is forged for the benefit of the Plaintiffs. Therefore the promissory note in relation to the 3rd Defendant is fraudulent, forged and shall not be valid. At all material times, the Defendants contend that the Promissory Note signed by the 2nd Defendant is not valid and therefore, unenforceable.

Alternatively, the Defendants contend that the Plaintiffs’ claim herein is premature given that the promissory note Promissory Note, signed on 15.04.2024, with an expiry date S/N X3YzluzYu0GecmTH/CxiVg of expire on 31.12.2024. Therefore, it is premature for the Plaintiffs to initiate this claim in September 2024 or to enforce caveats on property or compel the sale of the 2nd Defendant’s Property. assets without adequately addressing the account queries raised by the Defendants. Furthermore, the promissory note Promissory Note was signed under duress, coercion and/or undue influence to avoid disruption of truck supplies, and at all material times, the 2nd Defendant had not signed the Promissory Note with any free consent and/or consensus, thus rendering the Promissory Note, invalid and unenforceable” [9] Anchored on the Amended Defence and Counterclaim, the Defendants filed Enclosure 29. The Defendants also, without leave of this Court filed 2 “Corrective Affidavits” vide Enclosures 38 and 39 purporting to withdraw and rectify the averments made in their earlier affidavits affirmed in opposing the Plaintiff’s Summary Judgment application where they had expressly admitted to signing the Promissory Notes. [10] The Defendants contended that the production for inspection of the promissory Notes with the further order for the same to be submitted for forensic investigation by the Chemist Department is necessary given their claim that their signatures in Promissory Notes were forged. Court’s Considerations [11] It is my judgment that the Defendants’ application under Enclosure 29 must be dismissed given that this Court had already granted S/N X3YzluzYu0GecmTH/CxiVg Summary Judgment to the Plaintiffs premised on the undisputed authenticity of the Promissory Notes. [12] Having granted the judgment on 20.11.2024, this Court was functus officio and no longer had the jurisdiction to consider the Defendants’ volte-face contention that their signatures in the Promissory Notes were forged. The specific issue as regards the authenticity of the 2nd and 3rd Defendants’ signatures in the Promissory Notes had already been determined without any disputes from the Defendants when the Court arrived at its decision to grant the Plaintiffs their Summary Judgment application. In other words, the issue of the authenticity of the Promissory Notes was barred by the doctrine of res judicata [See: Halim bin Saad v. Chan Yok Peng [2021] 1 CLJ 499]. [13] The Defendants have appealed against the Summary Judgment to the Court of Appeal. If the Defendants wish to contend that their signatures in the Promissory Notes were forged and seek to retract their express admissions made that they had indeed signed the Promissory Notes albeit under coercion and or duress, the proper step to take is to apply to the Court of Appeal for fresh evidence to be admitted and satisfy the principle in Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745 which established the criteria for the Court of Appeal to accept fresh evidence in a case on which a judgment has already been delivered. [14] The Defendants could not unilaterally file the Corrective Affidavits after this Court had delivered the Summary Judgment as a way to overcome and or retract their express admissions. S/N X3YzluzYu0GecmTH/CxiVg [15] Until and unless the Defendants are successful in their application to adduce fresh evidence before the Court of Appeal, the issue dealing with the authenticity of the Promissory Notes had already been determined and it was no longer open to the Defendants to introduce this by way of an amendment to their Defence and Counterclaim and thereafter in reliance on the same, to file an application vide Enclosure 29 seeking the production of the Promissory Notes. [16] In this regard, I would further add that the amendments made in paragraphs 25 and 26 of the Amended Defence and Counterclaim are factually inconsistent and unsustainable. In Toe Hong Choo v Piong Choong Fah [2024] MLJU 2405, the learned Judicial Commissioner (as he then was) Leong Wai Hong succinctly distilled the principles relating to pleadings in the alternative. More specifically, a party cannot assert two inconsistent versions of the facts where he knows or must know that one version is false. This is because while a party has a right to plead inconsistent rights in the alternative, the alternative versions of the facts cannot offend common sense and justice. [17] Thus, the 2nd and 3rd Defendants could not on the one hand plead that they did not sign the Promissory Notes and at the same time plead that they had signed the same under coercion and or undue influence. [18] Based on the aforesaid, since the issue as to the authenticity of the Promissory Notes had already been determined by the Summary Judgment, there was no reason for this Court to exercise its S/N X3YzluzYu0GecmTH/CxiVg discretion under Order 24 rule 12 of the Rules of Court 2012 to order for the production and inspection the Promissory Notes (let alone for the same to be forwarded to the Chemist Department for forensic investigation) as the matter was no longer a live issue in this action. Conclusion [19] In the premises, the Defendants’ application under Enclosure 29 was dismissed with costs fixed at RM 7,500.00 subject to payment of allocator. Dated the 11th day of April 2025 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 & Admiralty Counsel:

Counsel for Plaintiffs: Mr. John Rolan Fernandez together with Ms. Victoria Tay Huey Qi (PDK) (Messrs. Christopher & Lee Ong)

Counsel for Defendants: Mr. Kevin Wu Khai Woon together with Ms. Radhia Syahira (Messrs.

Halim bin Saad v. Chan Yok Peng [2021] 1 CLJ 499

Ladd v Marshall [1954] 1 WLR 1489; [1954] 3 All ER 745

Toe Hong Choo v Piong Choong Fah [2024] MLJU 2405

Order 24 rule 12 and 13; and Order 92 rule 4 of the Rules of Court 2012