Lim Seong Heng v Tan Pek Han (WA-22NCC-467-09/2020)

LIM SEONG HENG [NRIC No. 740904-14-5899]

HEW SEE LING [NRIC No. 800725-10-5076] … PLAINTIFFS

TAN PEK HAN [NRIC No. 770111-01-6867]

TEN SHAY TIEN [NRIC No. 810520-14-6068] [T/A GOLDEN QUINN COLLECTION (Registration No. 202003023035 (003072020-A))] … DEFENDANTS (In the Main Action) BETWEEN TAN PEK HAN [NRIC No. 770111-01-6867] … PLAINTIFF

LIM SEONG HENG [NRIC No. 740904-14-5899]

DC2 AUTO SDN BHD (Company No. 1112436-M) … DEFENDANTS (In the Counterclaim) JUDGMENT A. Introduction [1] This action was filed following an incident on 14 September 2020, in which a group of men, who the plaintiffs claimed were representatives of the 2nd defendant, allegedly harassed and intimidated the plaintiffs. These men were said to have threatened the plaintiffs and demanded RM4,000,000, which was alleged due from the 1st plaintiff to the 1st defendant. [2] The 1st defendant filed a counterclaim, seeking the return of a loan and investment provided by the 1st defendant to the 1st plaintiff. [3] On 15 December 2020, the plaintiffs obtained an injunction to restrain the 1st defendant from attacking, disturbing or intimidating the plaintiffs or their family members. [4] With the injunction, the plaintiffs withdrew this action, subject to costs being in the cause in respect of the counterclaim. As a result, the trial of this action and the decision of this court, only concern the counterclaim. [5] After a full trial, the court allowed the counterclaim, for the reasons set out below. B. Background Fact [6] As this matter only concerns the counterclaim, the parties shall hereinafter be referred to in their capacities in the counterclaim. The plaintiff in the counterclaim shall be referred to as the “plaintiff (CC)”, while the defendants in the counterclaim shall respectively be referred to as the “1st defendant (CC)” and the “2nd defendant (CC)”, and collectively as the “defendants (CC)”. [7] The plaintiff (CC) claimed he provided a total amount of RM10,030,750 to the defendants (CC) as a loan and for the purpose of investment. [8] It is the plaintiff’s (CC) case that the defendants (CC) have not fully paid the loan. [9] The defendants (CC) do not dispute receiving money from the plaintiff (CC). Their main defences are that the loan was provided as a loan and/or investment for a company known as TJM Sdn Bhd (“TJM”), and that the full amount of the loan had been repaid. [10] The defendants (CC) also contended that the plaintiff (CC) was involved in an illegal moneylending business. C. Considerations and Finding Issues [11] From the facts of this case, there are four main issues to be considered by this court: a. Who did the plaintiff (CC) provide a loan to? b. How much was provided? c. Was the loan fully repaid? d. Is the loan an illegal moneylending transaction? Issue 1: Who did the plaintiff (CC) provide the loan to? [12] The plaintiff (CC) provided evidence that sums were deposited by him into the accounts of the defendants (CC). As such, the plaintiff’s (CC) case is that he provided the loan to the defendants (CC). [13] The defendants’ (CC) version of events is that the loan was given to TJM. The 1st defendant (CC) was an employee of TJM and he claimed he was assigned to obtain loans and investments for the second-hand car trading business operated by TJM. The arrangement made was for the loan to be paid through the accounts of the defendants (CC). [14] Having considered both versions of events, I find the plaintiff’s

version to be more probable. There are a few reasons for my finding. [15] First, documentary evidence supports the plaintiff’s (CC) allegation that sums were transferred to the accounts of the defendants

(CC). The defendants (CC) have three bank accounts. Maybank account no. 114290035881 and ОСВС account no. 7011232193 belong to the 1st defendant (CC), while CIMB account no. 8007390215 belongs to the 2nd defendant (CC). It is in evidence and not denied by the defendants (CC) that a total sum of RM8,241,295 (out of RM10,030,750 claimed by the plaintiff (CC)) was transferred by the plaintiff (CC) to these accounts. [16] Second, it is also in evidence that monies given by the plaintiff

were used by the defendants (CC) for the purpose of buying and selling luxury motor vehicles. A trail of WhatsApp messages exchanged between the 1st defendant (CC) and the plaintiff (CC) shows that the 1st defendant (CC) would purchase motor vehicles using the loan provided by the plaintiff (CC), and would re-sell the vehicles at a higher price. The loan would then be returned to the plaintiff (CC), together with a share of the profits obtained for each vehicle. [17] The process of buying and selling motor vehicles utilising the loan was elaborated on during the cross-examination of the 1st defendant (CC): “AMRIT Now you know, I mean I don’t think you will deny these whole transactions revolved about buying and selling luxury vehicles, correct. Correct. AMRIT And these luxury vehicles some of them bought locally or local sellers in Malaysia and some of them were bought from UK and from Japan, correct. Correct. AMRIT And to buy these vehicles, since you agreed with me there’s no bank facility for DC2 Auto, so you had to obtain some sort of financial help, correct. Correct. Then you would agree Mr. Tan provided this assistance to you to carry out your business, correct. Correct. AMRIT And you will agree there’s a quite number of WhatsApp’s that we have referred to Mr. Tan in his Witness statement that at material time before you purchase certain vehicles. We have got photographs of Lamborghini and we also got certain photographs of other cars and all. But I don’t want to waste time we do that. You did inform him what were the types of vehicles that you were trying to purchase from overseas with the price, correct. Correct. AMRIT Yeah. In fact, you even send him car lease and you send photographs of certain vehicles, that you intended to purchase, correct. Correct. AMRIT If at any point of time Mr. Tan says he doesn’t want to give you that loan, for that purchase of the car, you really cannot do anything about it, correct. No, disagree. AMRIT Disagree yeah, okay. But you will agree that all the loans that is given to you, your intention was just to buy these luxury vehicles. Repeat please. AMRIT You agree at all times the loans that you obtain from Mr. Tan is to buy – to purchase these luxury vehicles. Disagree. AMRIT And you agree at the end of the sale of this particular vehicle, where he given you this loan, you will agree that is when you have to pay him back the loan amount or investment that is given to you. Pay him back, yes. AMRIT But sometimes that money was used to roll over, instead of paying him back that loan sum for that particular vehicle, it was roll over to buy another vehicle, correct. We call it contra. Okay you call it contra but then okay, for example when a car is sold where Mr. Tan has financed the purchase of the vehicle and then once the vehicle is sold. Yes. That means that the loan or investment sum will become payable to him, correct. Correct. AMRIT But sometimes he never took back neither did you pay back that sum because the same money was used to purchase other vehicles, correct. Correct. AMRIT And this went on and because of that the figures snowball it became into bigger amount, correct. Correct.” (emphasis added) [18] The above exchange shows that the plaintiff (CC) had provided a loan to the defendants (CC), and that the loan was used for the business of buying and selling luxury motor vehicles. [19] Third, the 1st defendant (CC) had provided a letter of undertaking to the plaintiff (CC) (“Letter of Undertaking”). The undated Letter of Undertaking was addressed to the plaintiff (CC), signed by the 1st defendant (CC), and witnessed by Tan Ee Peng. The letter states as follows: “RE: LOAN TO PURCHASE CARS

I, LIM SEONG HENG (NRIC NO. 740904-14-5899), a Director of DC2 Auto Sdn. Bhd. (Company No: 1112436-M) hereby agrees that a sum of Ringgit Malaysia Four Million (RM4,000,000.00) (hereinafter referred to as "the Loan/Investment*) was taken from one Tin@Tan Pek Han (NRIC NO. 770111-01-6867) to purchase Japanese cars.

In view of the above, I undertake to repay the Loan/Investment to Tin@Tan Pek Han once I have received payment from TJM SDN. BHD. (Company No: 133390-M).” [20] From the Letter of Undertaking, it is clear that the 1st defendant

acknowledged he had taken a sum of RM4,000,000 from the plaintiff

“to purchase Japanese cars”. The 1st defendant (CC) undertook to repay the amount to the plaintiff (CC). [21] While the Letter of Undertaking is not dated and the amount does not correspond exactly with the total amount claimed by the plaintiff (CC) in this action, the authenticity of the letter was not challenged by the defendants (CC). coercion and duress. However, the 1st defendant (CC) did not lodge any police report on him being forced to sign the letter, and did not call Tan Ee Ping, his niece who witnessed the letter, to testify as to the circumstance in which the letter was signed. Further, the allegation of coercion and filed. From the conduct of the 1st defendant (CC), I find the allegation of defendants’ (CC) version of events, namely that the loan was given to TJM, is not supported by evidence. The defendants (CC) claimed that the arrangement was made by an agent and supplier of vehicles in TJM, [22] The 1st defendant (CC) claimed he signed the letter under duress was only raised by the 1st defendant (CC) after this action was coercion and duress to be an afterthought. [23] It is also in evidence that the defendants (CC) had issued several cheques in the total amount of RM4,090,600, and provided them to the plaintiff (CC). This amount corresponds with the amount in the Letter of Undertaking. The 1st defendant (CC) had also provided original copies of registration cards of vehicles to the plaintiff (CC). These documents were likely to have been provided as security for the loan by the plaintiff (CC). [24] Having considered the evidence as a whole, my view is that the Letter of Undertaking and the steps taken by the defendants (CC), indicate that it was likely that the plaintiff (CC) had provided monies to the defendants (CC). [25] Fourth, and in contrast with the evidence of the plaintiff (CC), the Popat Simal Khetsi (“Simal”).

into the accounts of the defendants (CC), and not to TJM. This is so, despite the fact that TJM has two bank accounts, namely CIMB account no. 8007136562 and Ambank account no. 2011014918. If the loan was in fact provided by the plaintiff (CC) to TJM, then it would make commercial on the claim by the defendants (CC) that the loan was provided to TJM. Simal’s testimony on the arrangement of the loan is material to the question of whether the loan was provided to the defendants (CC) or TJM. [26] However, it is in evidence that monies were paid by the plaintiff and logical sense for monies to have been banked into TJM’s accounts, instead of the defendants’ (CC) accounts. [27] I also considered that Simal was not called as a witness to testify [28] In view of the failure to produce a material witness to support the defendants’ (CC) case, I have drawn an adverse inference against the defendants (CC) pursuant to section 114(g) of the Evidence Act 1950. The section provides as follows: “The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.” ILLUSTRATIONS The court may presume:- …

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it …” (emphasis added) [29] I am in this regard guided by Takako Sakao (f) v Ng Pek Yuen

& Anor [2009] 6 MLJ 751, where the Federal Court held that: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true … [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant's contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference … … The other case is Crawford v Financial Institutions Services Ltd (Jamaica) [2005] UKPC 40, where Lord Walker of Gestingthorpe when delivering the advice of the Privy Council said: It is well settled that in civil proceedings the court may draw adverse inferences from a defendant's decision not to give or call evidence as to matters within the knowledge of himself or his employees.” (emphasis added) [30] In the present case, the evidence of Simal, who the defendants

claimed had arranged the loan on behalf of TJM, is material to the defendants’ (CC) case. Following the failure to call him as a witness, I had presumed that Simal’s testimony would be unfavourable to the defendants

(CC). [31] Considering the totality of the evidence before this court, I found it to be more likely that the loan was given to the defendants (CC) than to TJM. The argument raised by the defendants (CC) that money was given to TJM is likely to have been an afterthought designed to avoid liability. Issue 2: How much was provided? [32] The plaintiff (CC) provided evidence in the form of cheques deposited, transfers and cash deposits made, together with confirmations by way of WhatsApp messages, that RM3,667,296 was deposited into the account of the 1st defendant (CC) and RM4,573,999 was deposited into the account of the 2nd defendant (CC). These sums total RM8,241,295. [33] The plaintiff (CC) claimed that a further amount of RM1,789,455 was given to the 1st defendant (CC) in cash. [34] Thus, it is the plaintiff’s (CC) case that he provided RM10,030,750 to the defendants (CC). [35] It is to be noted that the 1st defendant (CC) did not deny receiving money from the plaintiff (CC). This was evident in the course of his cross-examination: “AMRIT Nah, don’t worry, okay. Now look at Q&A 17 [WS-DW1- A(CC)]. Now let’s see the question asked to you, okay: What was the total amount transferred by you to the 1st Defendant in respect of the Loan? So, this is the question that asked to you. Now, your answer is this, I refer to CBOD, Jilid 2, pages 3 – 19. This is the index that you’re referring to yeah. As can be seen from the summary of transactions, the total sum transferred to the 1st Defendant in respect of the Loan is RM10,683,249.00. Now, the 1st Defendant here means Mr. Tan, correct. Yeah. was deposited by the plaintiff (CC) into the accounts of the defendants

(CC), there is no proof that the amount of RM1,789,455 was given to the 1st defendant (CC) in cash. Therefore, the full amount of the loan cannot to determine the quantum of the loan. The 1st defendant’s (CC) admission – that he repaid the full loan amount of RM10,683,249 to the plaintiff (CC) – is contained in the 1st defendant’s (CC) answer to question 17 of his witness statement (WS-DW1A (CC)), and was confirmed by him during So, it is your evidence in Court, that you have repaid back Mr. Tan this amount, correct. Correct. AMRIT And you would agree, for you to pay back this amount of RM10 Million over, it only means that you have received loan from Mr. Tan, amounting to more than RM10million, correct. Correct.” (emphasis added) [36] As can be seen from the answers given by the 1st defendant (CC), he had received more than RM10,000,000 from the plaintiff (CC). [37] However, apart from evidence that the amount of RM8,241,295 be conclusively determined from the evidence before this court. [38] As such, I depended on the admission of the 1st defendant (CC) the amount of RM10,683,249 admitted to have been paid by the defendants (CC) to the plaintiff (CC), as the value of the loan provided by recorded twice. The parties therefore agreed that RM200,000 should be deducted from the total amount that the defendants (CC) claimed had been repaid. On this basis, the amount admitted to have been repaid by the 1st defendant (CC), and which the court relies on as the amount that was provided by the plaintiff (CC) to the defendants (CC), is the loan to the plaintiff (CC). The defendants (CC) relied on a list of transactions setting out payments made by the defendants (CC) into been paid. I accepted this contention as correct. I relied on the Letter of Undertaking and the cheques that had been issued by the defendants

to the plaintiff (CC). In the Letter of Undertaking, the 1st defendant

had undertaken to repay RM4,000,000 to the plaintiff (CC). Cheques the plaintiff (CC) to the defendants (CC). [39] During trial, it was revealed that one payment of RM200,000 was RM10,483.249. Issue 3: Was the loan fully repaid? [40] The defendants (CC) alleged that they repaid the full amount of various accounts, including the plaintiff’s (CC) account. [41] The defendants’ (CC) case is that through these transactions, the full amount of the loan had been repaid. [42] However, the plaintiff (CC) contended that the full loan had not cross-examination, as set out in paragraph [35] above. Thus, I relied on intention by the defendants (CC) to repay the loan that remained defendants (CC) to have issued the Letter of Undertaking and the cheques, if the loan had been fully repaid and no amount was outstanding next question is how much of the loan had been repaid. In response to the list of transactions created by the defendants (CC), the plaintiff (CC) produced a table that referred to these transactions, with comments by the plaintiff (CC) on each transaction, as to why the payments are disputed. The plaintiff (CC) contended that the amount of RM10,483,249 alleged to have been repaid fully to the plaintiff (CC) included payments made for the purchase of cars, and payments made by TJM pursuant to separate arrangements that had been entered into between the plaintiff amount of RM4,090,600. [43] These documents considered as a whole, in my view, reflect an outstanding to the plaintiff (CC). It would not have been likely for the from the defendants (CC) to the plaintiff (CC). [44] Following the finding that the loan had not been fully repaid, the

and TJM. [45] This was evident during the cross-examination of the 1st defendant (CC) on payments that he claimed to have made towards repaying the loan: “AMRIT Let’s go to the first document Daewoo, just flip the bundle B2, I will bring your attention to B2/20, just give me a second, Mr. Lim. Okay, so this what you were then issued by the defendants (CC) to the plaintiff (CC) up to a total are relying on to say that the sum stipulated here RM310,000 is what you repaid back to Mr. Tan. Correct, that is what you are saying. Correct. AMRIT That loan repayment handwriting on this document, whose handwriting is that Mr. Deano Lim. This is my staff. AMRIT But on top there you can also see your staff also wrote there buying car and that has been deleted, has been cancelled, correct. Correct.” (emphasis added) [46] From the above exchange, it is clear that the sum alleged by the defendants (CC) to have been made to repay the loan was in fact paid for the purchase of cars. [47] Further, the plaintiff (CC) also provided evidence that he had entered into separate business arrangements with TJM and Simal. He testified that the payments listed by the defendants (CC) as proof of repayment of the loan included payments that were made pursuant to these separate business arrangements. In answer to a question during cross-examination, on why he did not accept that the loan had been fully repaid, the plaintiff (CC) explained: “Yeah, okay at that point of time, I am not aware, it is not that I am not aware that this sums come from the 3rd party’s payment. So, the payments mainly come from only 4 parties. TJM, Elegance Speed Auto, Mr. Simal himself and also Deano Lim or DC2 Auto. So, at that juncture of time, whichever account that I asked Deano Lim to bank in, everything goes well. So, my customer my recipients also received the amount. So, up to until things go sour at this point of time, then when I am trying to sue the party that okay, Deano Lim is using this payment to claim that he repaid the loan. And this parties, for example TJM, Simal Elegance they said no, that is their party, that is their payment. So, that is why I feel very fishy and a lot of cheating inside here. There is the reason why I make police reports and I understand from this thing I can see that Deano Lim is wearing a few caps, he was actually liaising with all his customers like TJM, Elegance Speed Auto, Simal and so on, he jumble up all the payments. Because at that juncture of time I do not know where the payment come from, and I don’t care where the payment come from. As long as I give you the money. I requested the money back; you give back to me. I can’t stop whichever sources that you take the money from. And so, I was very surprised that he has the access to deal with those payee directly. So, I only found out lately. That means, when I am taking actions against them, to tally back my accounts, whatever money they invested. I want to get back my money, only I found that a lot of duplications of payments for example. That means the source of payment by right, this was supposed to ahh TJM claims it is supposed to for his loan repayment. But now with this repayment, I found that Deano Lim is also using the same payment for his claim of a loan repayment. That means that it is a duplication. But I can’t proceed more from here because I split up the case I am suing TJM, I am suing Simal, I am suing DC2 Auto or Deano Lim, and also I am suing Elegance Speed Auto that is why everything is being dispute some of the double claims here. To me it is considered a double claim.” (emphasis added) [48] What the defendants (CC) appeared to have done was to use payments made in respect of the separate arrangements between the plaintiff (CC) and TJM and Simal, and claimed them as payments made towards the loan. However, the defendants (CC) did not call Simal to testify on the purpose of these payments. The purpose of the payments is material to the defendants’ (CC) case, and failure to call Simal to testify on this material fact gives rise to an inference against the defendants (CC)

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere. He must prove it.” (emphasis added) [54] I am further guided by Sun Holding (Sun Park Hotel) Co Ltd v Export-Import Bank of Malaysia Bhd [2016] 1 MLJ 115, where the Court of Appeal, in finding that the appellants had failed to prove the existence of a collateral agreement between the appellants and the respondent, held as follows on the question of the burden of proving the collateral agreement: “[11] The alleged collateral agreement between the parties was, according to the second appellant Cheok Tiam Cheng (‘DW1’), a director of Sun Holding, an oral agreement by Exim Bank’s then general manager, Mohd Noordin Abbas, who had since resigned from the respondent. The oral agreement, according to DW1, stemmed from an explanation by Mohd Noordin Abbas that because of the single customer limit condition imposed by Bank Negara Malaysia, the respondent could not provide the USD 40m facility to first appellant/Sun Holdings all at once but it could do so in several tranches of USD 14m each through separate facility agreements. [12] This indeed is the very foundation upon which the appellants’ case is built. However, neither Mohd Noordin Abbas, nor without him, an officer of Bank Negara was called to testify to any single customer limit condition imposed by Bank Negara Malaysia, and if there were, how it could so patently be easily overcome by the same single customer taking several tranches of USD 14m each. The High Court correctly held that the duty was on the appellants, whose case depended for its success to that evidence to have called Mohd Noordin Abbas, see ss 102 and 103 of the Evidence Act 1950. A subpoena could have been obtained to secure his attendance as a witness. This failure to call Mohd Noordin Abbas, as the High Court held, left a gap in the case for the appellants.” (emphasis added) [55] Similarly in this case, it is the defendants’ (CC) case that they had made full repayments towards the loan. As such, the evidentiary burden is on the defendants (CC) to prove this fact, by calling the parties named in the list of transactions to show that the transactions were in respect of the loan. [56] Having failed to do so, the court accepted the plaintiff’s (CC) contention that the loan was not fully paid, and only payment of RM5,108,478 had been made, out of which RM2,644,540 was made by the 2nd defendant (CC). Issue 4: Is the loan an illegal moneylending transaction? [57] The defendants (CC) argued that the loan was a moneylending transaction that contravened the Moneylenders Act 1951 (“MA 1951”). [58] Section 15 of the MA 1951 states that: “No moneylending agreement in respect of money lent after the coming into force of this Act by an unlicensed moneylender shall be enforceable.” [59] It is in reliance on section 15 that the defendants (CC) argued that the plaintiff (CC) is an unlicensed moneylender, and as such, the loan is an illegal moneylending transaction, which should not be recognised by the court. [60] I am unable to agree. [61] Section 2 of the MA 1951 is relevant to my consideration of this issue. The section defines the term “moneylending” as “… the lending of money at interest, with or without security, by a moneylender to a borrower”. [62] I am of the view that the evidence provided by the parties does not support the defendants’ (CC) contention that the plaintiff (CC) was lending monies to the defendants (CC) at interest. plaintiff (CC) to the defendants (CC) were for the purpose of buying and selling luxury vehicles. The business process was confirmed by the 1st defendant (CC) during cross-examination, as referred to in paragraph [17] above. The 1st defendant (CC) also confirmed that once a vehicle is sold, not fall within the scope of the MA 1951, but is instead an investment by 4% was imposed by the plaintiff (CC) on the loan. However, this allegation was not raised by the defendants (CC) in their pleadings. I note that the defendants (CC) first raised this allegation during re-examination of the 1st percentages referred to in WhatsApp messages exchanged between him and the 1st defendant (CC) are not percentages of interests imposed on [63] Instead, what is in evidence is that the amounts paid by the the profit from the sale of the vehicle will be shared between the parties. [64] These facts point the court to the conclusion that the loan does the plaintiff (CC). [65] I have considered the defendants’ (CC) allegation that interest of defendant (CC). In view thereof and following Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1, where the Federal Court held that parties are not allowed to adduce facts and issues which they have not pleaded, I disregarded the allegation. [66] Further, I accept the plaintiff’s (CC) testimony that the the loan, but are profits due from the sale of vehicles. [67] During re-examination, the plaintiff (CC) explained how the profit of 3% was derived: “AMRIT Okay, I will get back to that, pause, I will get back. This is when Mr. Mathew brings to your attention of course you did answer very well then, but you did explain you did got accord an explanation from your heart to Yang Arif and Mr. Mathew when he was trying to show you the 3% and things like that. And of course, then it was put to you that, that’s actually the 3% interest on the sum given and then you explained you disagreed with him and say look that is of interest, that is my profit. Can you explain why you disagree that the 3% is not interest, but is profit. PW1-CC Yeah, Yang Arif I explain to you, actually it is not only 3%, this happened actually when the business was starting on, I was getting a very good returns the big the numbers they all always on numbers. Example when I buy this car for RM1Million I can sell for RM1.15Million so we make RM150,000 and we share half-half with them. So, it is about RM75,000 each. It is started of all the numbers and then I settle back with my loan out and so on. It comes to percentage about 10% or 12 % and each of us share half-half that was our oral understanding. So, as times goes, so a lot of irrelevant claims, they can know that the profit is very high. But they have claimed a lot of unnecessary things like they say the gear is spoil and then we have to spend RM100,000 on the gears and so on. And profit of my investment keeps on reduce, reduce, reduce up to a stage I just give up, I said okay we don’t argue on that because it is very hard for me to justify and tell my team how to get it done how to calculate on all the things, so I make an assumption and I make a request to Deano Lim. I said, Deano, please I don’t want to have this all the unnecessary arguments and so on. That is Why I said every loan I disbursed out what profit that you can guarantee me. He said no guarantee. I said fair, no guarantee then what is the profit that I can have for this disbursement of loan how duration of time it’s okay, 1 month, 2 months, 3 months. You let me know. So, then we satisfy ourselves we commit to a figure of 3% or 4%. Earlier on was 4 for then later stage as the business go further down and get 3, and that it was my bottom line. He wants to go further down that is why the argument all started because they want further to reduce and then I just cut them off. I say okay that is end our business, you tried to calculate, and we try to tabulate to find out and when I tabulate and close the business only all these things happened.” (emphasis added) [68] From the testimony of the plaintiff (CC), the initial profit rate from the sale of vehicles was approximately 10% to 12%, but was later reduced on this issue is consistent with the WhatsApp messages and the 1st defendant’s (CC) testimony on the process of buying and selling vehicles, as set out in paragraph [17] above. The plaintiff’s (CC) direct involvement in the business transactions and the process for which profit was shared argument that the loan was a moneylending transaction under the MA loan provided by the plaintiff (CC) to the defendants (CC) is in the sum of RM10,483,249. From this amount, a total of RM4,573,999 was deposited between him and the defendants (CC) further negate the defendants’ (CC)

1951.

[69] From the totality of the evidence before this court, I find that the into the account of the 2nd defendant (CC). [70] I also accepted that a total of RM5,108,478 had been made towards repayment of the loan by the defendants (CC), out of which still outstanding is RM5,374.771. [71] The court therefore allowed the plaintiff’s (CC) claim: a. For the amount of RM5,374.771 against the 1st defendant

(inclusive of the amount in item (b), below); b. For the amount of RM1,929,459 against the 2nd defendant

(derived from RM4,573,999 less RM2,644,540); and to 3%, as agreed between him and the 1st defendant (CC). His testimony RM2,644,540 was made by the 2nd defendant (CC). As such, the amount c. For judgment interest of 5% per annum, from the date of the judgment until the date of full and final settlement. [72] The court ordered costs of RM50,000 in respect of the main suit and the counterclaim, to be paid jointly and severally paid by the defendants (CC) to the plaintiff (CC). Dated 19 March 2024 - sgd - ADLIN ABDUL MAJID Judge High Court of Malaya Commercial Division (NCC6) Kuala Lumpur Counsel: Plaintiff (CC) : Mohd Rezan Ezra (together with Gan Yee Von of Messrs. Thomas Philip Defendants (CC) : Amrit Pal Singh (together with Ng Jun Wei) of Messrs. Amrit & Company