1. ) Florie Philomina A/P S G Dorai Raj v 1. ) Kavita A/P J S Anandam (BA-22NCvC-459-11/2024)

FLORIE PHILOMINA A/PSG DORAI RAJ

ABDUL OOVAISE BIN M MOHAMED IQBAL … PLAINTIFFS (NO. K/P: 800707-05-5247)

KAVITA A/PJS ANANDAM

NIK NUR SYARLIN BINTI NIK ISMAIL … DEFENDANTS (NO. K/P: 841012-03-5662) …

The 1st Defendant (D1) and 2nd Defendant (D2) filed applications to strike out Plaintiffs’ Statement of Claim (SOC) 07/10/2025 10:39:12

Both applications were heard together, and after hearing the parties, I allowed the Defendants’ application with costs and the Plaintiffs’ case was struck out.

The Plaintiffs have now appealed to the Court of Appeal, and my reasons are below.

The present dispute concerns a piece of land held under the title HSD 238221, No. Lot PT. 4617, Mukim Damansara, in the District of Petaling, Selangor (the property).

The 1st Plaintiff (P1) originally purchased the property in 1989 with the assistance of the 2nd Plaintiff (P2), and with the intention of registering it under P2’s name. The instalments for the mortgage, including the deposit, were to be arranged and paid for by P1.

On 23.8.2012, both Plaintiffs executed an irrevocable Power of Attorney (the 1st PA), whereby P2 granted P1 irrevocable powers to deal with and manage the property.

Both parties have agreed that upon discharge of the property from the financier bank, being Alliance Bank Berhad, P2 is required to transfer the said property to P1 or her next of kin.

Subsequent events will be presented in two versions, as both parties have their own narratives of the facts. Plaintiffs’ version

In December 2014 / 2015, P1 experienced some financial difficulties and required funding for her business. She then met Sathia Seelan a/l P. Arumugam (Sathia Seelan), who is the husband of D1. Sathia Seelan agreed to lend RM50,000.00 with interest and security.

P1 then charged the property to Sathia Seelan and requested that P2 execute several documents to that effect. P1 alleged that she was not aware of or being disclosed the content of the document and was not permitted to read it.

Upon execution of the documents, P1 received a cheque for RM25,000.00 and was informed that the remaining sum of RM25,000.00 had been deducted as legal fees and interest. Sathia Seelan did not furnish copies of the executed documents to both Plaintiffs.

P1 later found out that the property had been transferred to D2 from P2. It was later known that an irrevocable Power of Attorney dated 11.12.2014 (the 2nd PA) had been executed by P2 to D1 as the Donee, empowering D1 to transfer and execute all transfer instruments for the said property.

P2, however, states in the Statement of Claim that he denied having executed the 2nd PA to D2, whom he had never met previously.

D2 had satisfied the outstanding loan and discharged the property from Alliance Bank Berhad on or around 21.03.2017.

At the same time, the Plaintiffs had lodged several police reports against D1 and Sathia Seelan; however, no action was taken.

Plaintiffs’ claim is now premised on the alleged invalid, wrongful and void transfer of the property from P2 to D2. P1 further alleged that the transfer was tainted with a fraudulent/unlicensed moneylending transaction. Plaintiffs seek a declaration that the 2nd PA was void and unlawful, and subsequently, the transfer to D2 was also void.

P1 states that there was an understanding between P1 and P2 that P2 would hold the property in trust for P1.

P2’s claim against the Defendants was to challenge the transfer of ownership of the property from him to D2, as being void and wrongful, tainted with fraud, and arising from an unlicensed moneylending transaction. Defendants’ version

D1’s husband had extended a loan of RM50,000.00 to P1 through a friendly loan agreement without interest, with a repayment instalment of RM2500 per month. The alleged loan was paid to P1 in two transactions: one via a check for RM25,000 and another in cash for RM25,000.

In December 2014, P2 met with Sathia Seelan to help redeem the housing loan for the said property, as he was no longer financially capable of making the monthly instalments. P2 then executed a PA to D1 as the Donee to grant the necessary power to manage and dispose of the property.

In 2016, the property was in the midst of a foreclosure proceeding, and D1 had informed P2 to sell the property while simultaneously paying an outstanding instalment of RM48,590.10 to Alliance Bank to prevent the property from being auctioned off.

D2 later purchased the said property for RM460,000, which was within P2’s knowledge, as Alliance Bank required his presence and signatures on several documents to verify the sale of the said property through the 2nd PA.

In filing this suit, P1 had alleged fraud against D1 regarding the validity and execution of the 2nd PA, which resulted in the transfer of the said property to D2.

There is no necessity to reiterate or reprise the trite principle of law on striking out of an action under O18 R19, as it was well established by clear decisions of the Supreme Court in Bandar Builders Sdn Bhd v United Malayan Banking Corporation Bhd (1993) 4 CLJ 7 on the test for striking out applications. As a reminder, the tests are as follows: “(a) it is only in plain and obvious cases that recourse should be had to the summary process under the rule;

this summary procedure can only be adopted when it can be clearly seen that a claim or answer is, on the face of it obviously unsustainable;

it cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence;

if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under Order 33 r. 3 of the ROC; and

the Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable.” (see the Federal Court case of Tan Wei Hong (A Minor Suing Through Guardian Ad Litem And Next Friend Chuang Yin E) & Ors v. Malaysia Airlines Bhd And Other Appeals [2018] 9 CLJ 425).

It is also to be noted that when a striking out order is not suitable, as pointed out by the Court of Appeal, in Sivarasa Rasiah & Ors v. Che Hamzah Che Ismail & Ors [2012] 1 CLJ 75, in the following passage: “A striking out order should not be made summarily by the Court if there is issue of law that requires lengthy argument and mature consideration. It should also not be made if there is issue of fact that is capable of resolution only after taking viva voce evidence during trial (see: Lai Yoke Ngan & Anor v. Chin Teck Kwee &

It is pertinent to note that P1 is not the registered owner of the property, but she claimed to be the beneficial owner. P2 is the registered owner, but via the 2nd PA (dated 11.12.2014), all rights and ownership of the property were assigned to D1.

D1 sold the property to D2, and at this juncture, she is the purchaser and currently the owner.

P1 filed this case to seek declaratory orders that she is the registered owner of the property and that the 2nd PA (held by P2) is void. Therefore, the subsequent transfer of the property to D2 is also void.

Therefore, the root of the matter is the validity of the 2nd PA.

The Defendants’ application to strike out the Plaintiffs’ claim was premised on the following grounds:

P1 is not the registered owner of the property, and her claim against D1 is purely based on a dispute arising from a personal loan agreement between P1 and D1.

P1 does not possess any locus standi to bring an action against D1. The disposal of the property was with the consent of P2 (the registered owner).

P1 brought an action against D1 for a loan which was unlawful.

As the claim for the loan was time-barred (after 10 years), P1 now attempts to recover the property and claims against D1.

P1 has no right or cause of action or locus standi to initiate a claim against D1, as the dealings between P1 and D1 were limited solely to a friendly loan in 2014, which is now time-barred under Section 6 of the Limitation Act 1953.

P2 had executed the 2nd PA, and it was within both the Plaintiffs’ knowledge that the 2nd PA was valid and enforceable.

Plaintiffs had failed to plead sufficient precise facts to entitle them to the relief sought against D1.

P2 had never denied that he had signed the 2nd PA.

In objecting to the Defendants’ applications, the Plaintiffs assert as follows:

P1 contended that she purchased the property in 1989 but was unable to secure a loan for the purchase, hence registered the property in the name of P2.

A Power of Attorney was entered between P1 and P2, where P2 granted P1 irrevocable powers to deal and manage the property.

P2 holds the property under a bare trust.

In December 2014, P2 had financial problems and borrowed cash from one Sathia Seelan, who requested security for the amount loaned.

P1 agreed to charge the property to Sathia Seelan and signed a few documents. P1 was given RM25,000.00, and the remaining RM25,000.00 was deducted as interest charged and legal fees.

Sathia Seelan alleged that P1 failed to settle the loan.

P1 then realised that the property was transferred from P2 to D2 through the 2nd PA.

P1 possesses sufficient interest to bring action against D1. P2 holds the property on trust for P1 as the beneficiary.

The role of P1 is merely as cestui que trust (beneficiary having an equitable interest in a trust with the legal title being vested in the trustee) and has an interest in the said property.

P1, as beneficiary, is in the proper position and possesses sufficient and genuine interest to bring action against D1.

P2 is deemed not to have a genuine interest on the ground that P2 merely holds the property as a bare trustee.

Plaintiffs’ claim is not barred by limitation, as it relates to the recovery of land and not to a contractual matter; therefore, the limitation period is 12 years.

Upon perusing the factual surroundings of this case, I find that it involves primarily the arrangement of individuals who are unable to directly hold the ownership of a property and use the identity of a third person, who is P2 in this matter, in purchasing the property initially.

Over time, P1 needed cash, and she turned into Sathia Seelan, who lent her a sum of RM50,000. However, she received only RM25,000.00, with the security surrendering the power to deal with the property from P2 to D1 via the 2nd PA.

At this point, it is relevant to note that both parties agreed that P1 had engaged herself in a transaction of money lending with Sathia Seelan. Be it unlicensed or otherwise, this particular fact is undisputed.

Both parties relied on the fact that alleged fraud and unlicensed money lending were involved. But both parties are holding on to this fact to benefit themselves in their own way.

P1 and P2 contended that the transfer to D2 was void and wrongful due to the above moneylending transaction. Defendant, however, relied on the validity of the 2nd PA instead. In addition, even if the transaction constituted an unlawful moneylending activity, it was the Plaintiffs, or more specifically, P1, who had participated in such an illegal act.

Therefore, I find merit in the Defendant’s submission that, on the validity of the 2nd PA, it should be a cause of action against P2 and not against the Defendants as alleged.

It was submitted that P2 had not denied the validity of the PA; hence, there was no basis for P1 to assert otherwise.

P1 was never the registered owner of the property. It was submitted that P1’s claim against D1 was purely based on a dispute arising from a loan agreement between P1 and D1, where D2 consented to the transaction by signing the 2nd PA. On this point, I am of the view that the surroundings of the case involved rights to recover a land in declaring the transfer to D2 was unlawful. Therefore, since this is a claim for land recovery, I find the Plaintiff is not caught by the limitation period. The moneylending transaction was not a matter of concern and not a cause of action between the parties, but purely to give context.

Plaintiff’s claim against Defendants is also grounded on the causes of action of fraud and unlawful and/or lawful conspiracy to injure the Plaintiffs. Upon reviewing the affidavits filed, I find that P1 has not proven that any act of fraud by D1 involves disposing of the property to D2.

I reiterated that, from the submission, P2 had never denied the validity of the 2nd PA and, additionally, P2 had consented to the transfer to D2. Hence, from the documentary evidence tendered, it is evident that the property had been disposed of in accordance with a legitimate process.

I have considered the narratives in an action for the removal of a private caveat in the Kuala Lumpur High Court, in which P2 made a declaration stating that he was the trustee and P1 was the beneficiary. However, P2 then, in the same action, admitted (via affidavit) that there is no such declaration made and reaffirmed the fact that P1 had no interest whatsoever in the property and that P1’s application to lodge a private caveat was without basis and only intended to delay the sale process of the said property.

Due to the above allegations, I agree with the Defendants that P2 has now attempted to distort the facts in this action with the intention of unjustly profiting.

As for the D2 defeasible title, I am of the view that it was not proven to fall on any exception circumstance under section 340 of the National Land Code. D2 was merely a bona fide purchaser, and there is nothing to suggest or show that D2 had any knowledge of the prior transaction before purchasing the property from D1.

In light of the above findings, Plaintiff’s claim herein falls within the scope of scandalous, frivolous and/or vexatious and an abuse of court process. Both applications (enclosures 15 and 16) are hereby allowed with cost. Plaintiffs’ case is struck out under Order 18 Rule 19. The cost of RM3000 to each Defendant is subject to the allocator. Dated this: 6th October 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsels: For the Plaintiffs : Ooi She Yi Messrs Ooi’s Chambers For the Defendants: Thevini Nayagam Messrs G Sandhu, Kabina & Associates