Norhuda Binti Mohamad Noh v Alpine Peers (M) Sdn Bhd (BA-12B-15-03/2025)

NORHUDA BINTI MOHAMAD NOH

YANTI BINTI RAHMAN (NRIC NO.: 660527-71-5242) … APPELLANTS AND ALPINE PEERS (M) SDN BHD (COMPANY NO.: 372214-H) … RESPONDENT (IN THE SESSIONS COURT AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO.: NO. BA-B52-24-03/2021

NORHUDA BINTI MOHAMAD NOH

YANTI BINTI RAHMAN (NRIC NO.: 660527-71-5242) … PLAINTIFFS AND ALPINE PEERS (M) SDN BHD (COMPANY NO.: 372214-H) … DEFENDANT)

This is the Appellants’ appeal against the decision of the learned Sessions Court Judge (SCJ) dated 24.2.2025. Having heard both parties, I affirmed the SCJ decision and dismissed the appeal. The Appellants have now appealed to the Court of Appeal against the whole of that decision.

Parties are referred to as they were in the Sessions Court.

The Plaintiffs’ case arises from a series of earlier transactions and litigation between the parties concerning a piece of land held under HS(M) 9539, PT26095, Mukim Damansara, Ladang Ibor, Selangor (the said land).

The Defendant had earlier commenced proceedings against the Plaintiffs in Shah Alam Sessions Court Civil Suit No. B52NCVC- 142-07/2015. That action resulted in judgment in favour of the Defendant on 5.6.2017, where the Plaintiffs were ordered, among others, to pay RM300,000.00, interest at 5% per annum, and costs. Subsequently, on 5.10.2017, the Sessions Court allowed the Defendant’s application for assessment of damages and awarded further sums amounting to RM506,292.00, comprising, inter alia, loss of profit of RM500,000.00 and related expenses.

Following the judgment, the Defendant commenced execution proceedings. In the course of those proceedings, the Defendant obtained an order for the sale of the said land. The land was eventually sold, and the Defendant received proceeds of the sale amounting to RM595,500.00.

The Plaintiffs’ present action, filed in 2021, is premised on their assertion that all sums due under the earlier judgment and orders had already been fully settled prior to the execution process.

The Plaintiffs’ case is that on or about 5.4.2019, a sum of RM980,000.00 was paid in cash to the Defendant through its representative, one Asokkumar a/l K.S. Malakolunthu – SD2 (Asokkumar). The Plaintiffs contend that this payment was made for the purpose of satisfying in full the judgment debt arising from the earlier Sessions Court proceedings.

According to the Plaintiffs, the payment was not made directly by them to the Defendant. Instead, the Plaintiffs’ evidence is that the payment was arranged through one Luqman Bin Abdul Rahman - SP4 (Luqman), who is the husband of the second Plaintiff. The first Plaintiff is said to have received funds from Luqman for the purpose of settling the judgment debt.

The Plaintiffs further contend that Luqman, having provided the sum of RM980,000.00, instructed one Samsul Badri Bin Mat Ali - SP3 (Samsul) to deliver the cash to the Defendant’s representative. It is the Plaintiffs’ case that Samsul personally went to the residence of Asokkumar on 5.4.2019 and handed over the said sum in cash.

The Plaintiffs rely on the oral testimony of Samsul, who stated that he received the money from Luqman and was instructed to deliver it to Asokkumar. Samsul’s evidence is that he went to Asokkumar’s house on the morning of 5.4.2019, handed over the cash, and requested Asokkumar to sign a document acknowledging receipt.

The Plaintiffs also rely on the evidence of Luqman, who testified that he had paid RM980,000.00 in connection with an arrangement involving the said land. According to Luqman, the payment formed part of an understanding that the first Plaintiff would transfer the said land to him upon settlement of the judgment debt. Luqman further stated that the money was used to pay Asokkumar in order to resolve the Plaintiffs’ liability under the earlier judgment.

The Plaintiffs further rely on a document described as a “Surat Akuan Penerimaan” dated 5.4.2019, which was admitted as exhibit P-2 at trial. The Plaintiffs’ position is that this document was signed by Asokkumar to confirm receipt of the

In addition, the Plaintiffs point to the evidence given during cross-examination that there had been prior transactions between the parties involving both cash and cheque payments, and that cash transactions were not unusual in their dealings.

Based on these facts, the Plaintiffs contend that the full judgment sum had been paid and settled, and that the Defendant was therefore not entitled to proceed with execution, including the sale of the said land.

The Defendant, on the other hand, denies entirely that any such payment of RM980,000.00 was made.

The Defendant’s case is that the Plaintiffs’ allegation of cash payment is untrue, unsupported by credible evidence, and inconsistent with the contemporaneous documents.

The Defendant contends that the alleged payment of RM980,000.00 had in fact been raised previously in the execution proceedings before the High Court in Shah Alam (Execution No. BA-36-17-10/2018). In those proceedings, affidavits were filed by the Plaintiffs, Luqman and Samsul, raising the same allegation of payment. The Defendant’s position is that the Court had considered and rejected that allegation, and that the present action constitutes an attempt to re-litigate the same issue.

The Defendant further relies on the absence of objective or contemporaneous evidence to support the alleged cash payment. It is emphasized that no documentary proof, such as bank records, withdrawal records, or independent confirmation, was produced to substantiate the availability or transfer of such a large sum in cash.

The Defendant also challenges the authenticity of the acknowledgement letter dated 5.4.2019. The Defendant’s position is that the document is not genuine, that the original was never produced in Court, and that no expert or forensic evidence was adduced to verify the alleged signature of Asokkumar.

The Defendant further points to inconsistencies in the Plaintiffs’ evidence, including discrepancies in the testimony of the first Plaintiff, Luqman, and Samsul, particularly as to the source of funds, the arrangement between the parties, and the circumstances of the alleged payment.

It is also the Defendant’s case that the Plaintiffs’ claim is barred by the doctrine of res judicata. The Defendant relies on the fact that the issue of payment had already been raised in earlier proceedings, and that the Plaintiffs are not entitled to reopen or re-litigate the same issue in a fresh action.

On the totality of the evidence and submissions, the parties remain in direct conflict on the central factual issue, namely, whether the sum of RM980,000.00 was in fact paid by or on behalf of the Plaintiffs to the Defendant in full settlement of the judgment debt.

The learned SCJ dismissed the Plaintiffs’ claim after a full trial and made the following findings.

The Plaintiffs bore the burden to prove, on a balance of probabilities, that the sum of RM980,000.00 was paid to the Defendant in full settlement of the earlier judgment debt.

The SCJ found that the Plaintiffs failed to discharge that burden. The alleged payment of RM980,000.00 was not proven.

The SCJ rejected the Plaintiffs’ case that the payment was made through Samsul to Asokkumar. The SCJ did not accept that such a payment had taken place.

The SCJ found that the evidence of the Plaintiffs’ key witnesses, namely Norhuda Binti Mohamad Noh - SP1 (Norhuda), Luqman, and Samsul, was inconsistent on material aspects, including the source of funds, the arrangement between the parties, and the manner of payment.

The SCJ found that there was no reliable or independent corroboration of the alleged cash payment. There was no contemporaneous documentary evidence to support the Plaintiffs’ case.

The SCJ found that the circumstances surrounding the alleged payment of a large sum in cash were doubtful and not satisfactorily explained.

The SCJ rejected the Plaintiffs’ reliance on the acknowledgement letter dated 5.4.2019 (P-2). The Plaintiffs failed to prove the authenticity of the document, and the original was not produced.

The SCJ accepted the Defendant’s position that the allegation of payment had been raised in earlier execution proceedings and had been considered.

On that basis, the SCJ held that the doctrine of res judicata applied and that the Plaintiffs were attempting to re-litigate the same issue.

In any event, the SCJ found that the Plaintiffs’ claim failed on the merits due to failure of proof.

Accordingly, the SCJ dismissed the Plaintiffs’ claim in its entirety with costs. Issues Raised in the Appeal

From the Memorandum Rayuan Terpinda, the issues raised before this Court are as follows.

Whether the SCJ erred in finding that the Plaintiffs failed to prove, on a balance of probabilities, that RM980,000.00 was paid to the Defendant.

Whether the SCJ erred in rejecting the evidence of the Plaintiffs’ witnesses, in particular Luqman and Samsul, and in finding their testimonies inconsistent and unreliable.

Whether the SCJ erred in failing to give proper weight to the acknowledgement letter dated 5.4.2019 (P-2) as proof of receipt of RM980,000.00 by the Defendant.

Whether the SCJ erred in failing to properly consider and determine all the issues framed for trial.

Whether the SCJ erred in law in holding that the doctrine of res judicata applied, given the Plaintiffs’ contention that the issue of payment was not finally determined in the earlier execution proceedings.

Whether the SCJ erred in failing to draw an adverse inference under section 114(g) of the Evidence Act 1950 against the Defendant for not calling Asokkumar to testify.

Whether, on the totality of the evidence, the SCJ’s findings were against the weight of the evidence and ought to be set aside.

These are the issues that were placed before this Court for determination in the appeal.

It is trite that appellate intervention is a discretionary power exercised with restraint. An appellate court will not interfere with findings of fact made by the trial court unless it is shown that the trial judge misdirected himself in law or on the facts, failed to consider material evidence, took into account irrelevant matters, or that the findings are plainly wrong or against the weight of the evidence (see Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors [2020] 6 MLRA 193).

Where findings depend on the credibility and demeanour of witnesses, the appellate Court must give due weight to the advantage enjoyed by the trial judge who saw and heard the witnesses (refer to Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 2 MLRA 1).

The appellate Court is not entitled to rehear the case or to substitute its own view of the evidence merely because it might have reached a different conclusion (see Sivalingam Periasamy v Periasamy & Anor [1995] 2 MLRA 432). Analysis and Findings Whether RM980,000.00 was paid to the Defendant

This is the central issue in the appeal. In substance, the Plaintiffs’ case at trial was straightforward. They said that on 5.4.2019, a sum of RM980,000.00 was paid in cash to the Defendant through Asokkumar. The payment was said to have been arranged through Luqman and physically delivered by Samsul. The Plaintiffs further relied on the acknowledgement letter dated 5.4.2019 to show receipt of the said sum. That was the factual foundation of the declaratory relief sought.

The Defendant’s answer was an entire denial. The Defendant challenged the alleged payment as untrue, disputed the authenticity and probative value of the acknowledgement letter, and contended that the Plaintiffs’ version was unsupported by reliable contemporaneous documents. The Defendant also pointed to the internal inconsistencies in the evidence of Norhuda, Yanti Binti Rahman - SP2 (Yanti), Luqman and Samsul, and to the absence of objective evidence placing Samsul at Asokkumar’s house on the material date.

Having read the Notes of Proceedings, the parties’ written submissions, and the grounds of the SCJ, I find no basis to conclude that the SCJ erred in approaching the burden of proof. The SCJ was correct to begin from the proposition that the Plaintiffs, as the parties asserting full payment and seeking declaratory relief on that basis, bore the legal and evidential burden to prove that payment. This was also the Defendant’s central submission below, relying on sections 101 and 102 of the Evidence Act 1950, and on the line of authorities dealing with proof of documents and authenticity.

The Plaintiffs’ case on appeal is, in substance, that payment should be accepted because Luqman arranged it, Samsul delivered it, and the acknowledgement letter was produced. That submission, however, confronts the difficulty that the SCJ did not reject the Plaintiffs’ case arbitrarily. The SCJ rejected it after evaluating the evidence as a whole, including the manner in which the alleged cash payment was said to have been assembled, the connection between the witnesses, the lack of independent corroboration, and the reliability of the documentary support said to exist.

The record shows significant features that entitle the SCJ to treat the Plaintiffs’ version with caution. Norhuda’s own evidence was that she was a housewife, that she personally contributed only about RM10,000 from savings kept at home, and that the balance was to be arranged by Luqman. Her account of the arrangement was imprecise, and even on her own version, she did not know Samsul personally and had left the arrangement to Luqman. The evidence, therefore, did not present a direct, coherent chain from Plaintiffs to Defendant.

Yanti’s position did not materially strengthen the Plaintiffs’ case. Her evidence, as reflected in the Plaintiffs’ own submissions, was that she knew from her husband, Luqman, that money had been given for payment to the Defendant, but she herself was not involved in the alleged payment and was unable to give direct evidence of the handing over of RM980,000.00 to the Defendant. That again was a matter the SCJ was entitled to weigh in assessing the true evidential value of her testimony.

Luqman’s evidence also did not compel acceptance. In the Plaintiffs’ case, he was the person who arranged the sum and caused it to be delivered. Yet his account, as recorded and summarised in the parties’ submissions, linked the RM980,000.00 to a separate understanding involving the said land, and the documentary trail concerning that asserted arrangement was itself contentious. The Defendant highlighted that the Sale and Purchase Agreement relied on by the Plaintiffs was stamped only much later, after the land had been sold by public auction, and that the Plaintiffs did not satisfactorily explain this circumstance. The SCJ was entitled to regard that as one of the suspicious features affecting reliability.

As for Samsul, his evidence, if accepted, would have been the direct evidence of delivery. But the fact that he gave direct evidence did not oblige the SCJ to accept it. The true question was whether his testimony stood up to scrutiny when tested against the rest of the evidence and the surrounding circumstances. The Defendant relied, and so was the SCJ entitled to rely, on the absence of objective support that Samsul ever attended at Asokkumar’s house on 5.4.2019. The documentary and oral evidence concerning the MyTaman application and visitor records were specifically relied on by the Defendant to show that there was no record of any such visit on that day. The Defendant also referred to the evidence of Neai Fook Wah - SD1 (Neai) that errors or malfunctions in that system would ordinarily trigger a complaint, and none was shown.

Once these matters are viewed cumulatively, it cannot be said that the SCJ’s finding on failure of proof was plainly wrong. The Plaintiffs have not shown that the SCJ misunderstood the burden of proof, overlooked decisive evidence, or applied an incorrect legal test. What the Plaintiffs seek is a different appreciation of the same evidence. That is not enough for appellate intervention.

I therefore find that the SCJ did not err in concluding that the Plaintiffs failed to prove, on a balance of probabilities, that RM980,000.00 was paid to the Defendant.

This issue is closely related to the first, but it requires separate treatment because the Plaintiffs specifically complained that the SCJ wrongly rejected the oral evidence of these two witnesses. The Plaintiffs also emphasized that Samsul had been subpoenaed and argued that his status as such should have enhanced the weight of his testimony.

I am of the view that the complaint cannot succeed.

First, a witness does not become inherently credible because he is subpoenaed. A subpoena (or summons to witness) is merely a procedural mechanism to compel attendance and does not automatically enhance or guarantee the credibility of a witness. Credibility remains a matter for the Court to assess based on the substance of the testimony, its inherent probability, and the witness’s demeanour. I refer to the case of Wong Sin Chong & Anor v. Bhagwan Singh & Anor [1993] 1 MLRA 519, where the Supreme Court held that a subpoena is a tool to secure a witness who can provide material evidence. The Court clarified that merely being subpoenaed (even if the witness is an advocate and solicitor) does not “ipso facto” credit him with personal knowledge of relevant evidence, and the credibility of a witness is not determined by their professional status or the fact they were compelled to attend, but by the relevance and reliability of the facts they can testify to.

In that context, Samsul’s evidence must be assessed in the usual way.

Therefore, in this present appeal, the weight of Samsul’s evidence still depends on the same ordinary tests, namely, whether his story is internally consistent, whether it withstands cross-examination, and whether it fits with the surrounding evidence and probabilities of the case. The Defendant expressly relied on Md Zainudin bin Raujan v Public Prosecutor [2013] 3 MLJ 773 (FC) and CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1 (CA) in that regard, and I accept that those are conventional propositions on evidential assessment. The Court of Appeal in CGU Insurance emphasized that a trial judge must not rely solely on the “demeanour” of a witness but must subject the evidence to a critical analysis against the “totality of the evidence.” The Court held at paragraph 25: “The impression as to the demeanour of a witness must be critically tested against the totality of his evidence... The failure of a judge of fact to test the complainant’s evidence against the totality of the evidence and the probabilities of a case amounts to a misdirection...”.

The Court further noted that a judge must apply the “usual tests that a court applies when undertaking a judicial appreciation of evidence” (paragraph 49).

Second, the SCJ had clear grounds for treating the evidence of Luqman and Samsul with caution. Luqman was not an independent bystander. On the evidence, he was Yanti’s husband and, on the Plaintiffs’ own version, centrally involved in the funding arrangement, the alleged payment, and a related proposed land transaction. His interest in the Plaintiffs’ version was therefore direct and substantial. Samsul, in turn, was brought in through Luqman. The connection between the principal witnesses was thus an evidential circumstance the SCJ was entitled to bear in mind.

Third, the difficulty for the Plaintiffs is not merely that the SCJ preferred the Defendant’s witnesses. The more fundamental difficulty is that the Plaintiffs’ own witnesses did not present a single clear and fully corroborated narrative on the material facts. The source of the RM980,000.00, the precise arrangement between Norhuda and Luqman, the purpose for which the payment was made, and the way the money came to be delivered through Samsul all raised questions which the SCJ was entitled to consider unresolved or insufficiently explained. The Defendant’s submissions addressed these points, and there is nothing in the appeal record to suggest that the SCJ acted on an irrelevant basis in accepting those criticisms.

Fourth, the surrounding circumstances also mattered. A large cash payment of RM980,000.00 was alleged. The SCJ was entitled to expect a cogent explanation and cogent supporting circumstances. Instead, the evidence did not disclose the sort of objective trail that one would ordinarily expect if such an extraordinary payment had truly been made for the purpose of satisfying a judgment debt. The absence of formal follow-up, the absence of a contemporaneous application to record satisfaction or stop execution, and the absence of objective proof placing Samsul at Asokkumar’s house were all matters which the SCJ could legitimately take into account in assessing whether the oral evidence should be accepted.

I therefore find no error in the SCJ’s rejection of the evidence of Luqman and Samsul. The acknowledgement letter dated 5.4.2019

The Plaintiffs placed substantial reliance on the acknowledgement letter dated 5.4.2019. Their position was that once the document was admitted in evidence, and in the absence of proof from the Defendant that it was forged, the SCJ ought to have treated it as sufficient corroboration of the alleged payment. The Plaintiffs also relied on section 60(3) of the Evidence Act and on Tan Ngee Hiong v Tenaga Nasional Berhad [2024] CLJU 185 to argue that their oral testimony, together with documentary corroboration, sufficed.

The Defendant’s answer was materially different. The Defendant submitted that the Plaintiffs, as the parties producing and relying on the document, bore the initial burden to prove its genuineness, execution, and bona fide character. The Respondent relied on sections 101 and 102 of the Evidence Act and on Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 (FC) and Marappan a/l Muthusamy v R Sivam a/l Ramasamy [2014] 4 MLJ 428 (CA) for that proposition. The Defendant also pointed out that the original was not produced, and that despite pre-trial requests, there was no forensic or chemical examination establishing that the signature was Asokkumar’s.

In my judgment, the Defendant’s legal position on this point is sound.

The mere marking of a document as an exhibit does not, by itself, establish its authenticity or the truth of its contents, particularly where authenticity is disputed. The burden remains on the party relying on the document to prove its execution and genuineness, as emphasized in Letchumanan Chettiar Alagappan. The Notes of Proceedings, as reproduced in the Defendant’s submissions, show that the authenticity objection was specifically preserved for submission, even though the document was marked as P-2.

I also refer to the recent Federal Court decision in Live Capital

Sdn Bhd v. Pioneer Conglomerate Sdn Bhd [2025] MLRAU The Federal Court explicitly answered questions of law regarding disputed documents and held that, where the contents or notations on a document are disputed, they are not deemed proven merely by the document being marked as an exhibit at trial. It remains incumbent upon the party relying on the document to prove the truth of its contents, typically by calling the maker and even if a document is marked as an exhibit, the Court is still obliged to assess the veracity and weight of its contents based on the totality of the evidence.

In the present case, the Plaintiffs’ problem is not merely technical. The acknowledgement letter was critical because it was said to be the written confirmation of receipt of RM980,000.00. Yet the original was not produced at trial. The Plaintiffs’ own reply submissions refer to the evidence of Hermes Media Putra Bin Ibrahim - SP5 (Hermes) that the original was lost and no longer in his possession. That explanation may account for non-production, but it does not, by itself, compel the Court to accept the copy as authentic and reliable where the Defendant directly disputed it.

Further, the documentary history in the record shows that the Defendant had, before trial, sought confirmation whether the original impugned letter would be produced for chemical analysis, and whether any police or chemistry analysis had been carried out. The correspondence exhibited in the record reflects that this issue had been raised expressly.

The Plaintiffs’ submission that the Defendant failed to prove forgery does not answer the anterior question. Before any burden to disprove authenticity meaningfully arises, the party relying on the document must first satisfy the Court that the document is what it is said to be. The SCJ was therefore entitled to conclude that the Plaintiffs had not properly established the authenticity of P-2 to the level necessary for the Court to safely treat it as conclusive corroboration of a payment of RM980,000.00 in cash.

The Plaintiffs also argued that there was no prosecution or positive police finding establishing forgery. That may be so, but the absence of prosecution is not affirmative proof that the document is genuine. The SCJ was not bound to accept the document merely because no criminal charge ensued.

Accordingly, I find no error in the SCJ’s refusal to place determinative weight on the acknowledgement letter. Whether the SCJ failed to determine all the issues framed for trial

The Plaintiffs argued that the SCJ failed to consider and decide the second, third, fourth, and fifth issues for trial, and they relied on Wawasan Raya (M) Sdn Bhd v Marc Service Residence Management Corporation [2025] 4 MLRA 1 (CA) in support of the proposition that a failure to decide agreed issues can amount to error.

This argument requires careful treatment.

It is true that where issues have been framed for trial, a court should ordinarily address them. A failure to decide material agreed issues can, in an appropriate case, amount to error. However, the principle is not applied mechanically. The Court must also consider whether the allegedly omitted issues were truly independent and outcome-determinative, or whether they stood or fell with the core factual issue which the judge decided.

Here, after examining the pleadings, the submissions, and the grounds of the SCJ, I am satisfied that the dispute in substance turned on a single dominant question, namely, whether the alleged RM980,000.00 payment was made and received as claimed. The subsidiary issues concerning the acknowledgement letter, the authenticity dispute, and the alleged legal consequences of payment were all dependent on that central factual foundation being established.

The Defendant expressly took the position in its submissions that the SCJ had in substance dealt with the framed issues because issues (b), (c), and (d) all related to the same core allegation, namely whether the judgment sum of RM980,000.00 was paid by Samsul to Asokkumar, while issue (e) had been addressed through the SCJ’s finding on res judicata.

I find that this submission is substantially correct. Once the SCJ found that the Plaintiffs failed to prove the alleged payment, the declaratory relief based on full settlement necessarily failed. Likewise, once the SCJ declined to accept the authenticity or probative value of the acknowledgement letter, the Plaintiffs’ case lost its primary documentary support. The matter was therefore not one where several truly separate issues each required independent adjudication in order to determine the suit.

Accordingly, even if the SCJ did not set out a separate answer under each issue heading, I do not find that such omission, if any, caused any miscarriage of justice or rendered the decision unsafe. The decisive issue was addressed, and the result followed from that finding. Technically, the SCJ had answered all issues raised.

This issue requires some caution because it was one of the Plaintiffs’ express grounds, and the parties devoted attention to it in their written submissions. The Defendant relied on Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189 (SC) and Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122 (CA) to argue that the Plaintiffs were attempting to re-litigate in a fresh suit the same factual issue that had already been raised in the execution proceedings, namely the alleged payment of RM980,000.00 by Samsul to Asokkumar. The Defendant further argued that the same parties, the same factual matrix, the same witnesses, and the same relief in substance were involved.

The Plaintiffs answered that the execution proceedings did not finally determine the validity of the RM980,000.00 payment, and therefore, res judicata could not arise. They argued that the current suit was for declaratory relief specifically on the payment issue, and that the earlier execution proceedings did not constitute a final adjudication on that point.

I am of the opinion that the Plaintiffs’ criticism of the SCJ’s res judicata analysis is arguable to this limited extent: the materials before this Court do not show, with complete clarity, a final and express adjudication in the execution proceedings solely and specifically pronouncing on the validity of the alleged payment in the way now contended by the Plaintiffs. The fact that affidavits raising the allegation were filed in the execution proceedings does not, by itself, automatically establish that the exact issue was finally adjudicated for all purposes.

However, that is not the end of the matter. Even if one assumes in favour of the Plaintiffs that the SCJ’s resort to res judicata was open to debate, it does not follow that the appeal should have been allowed. This is because the SCJ’s dismissal did not rest only, or even substantially only, on res judicata. The SCJ also found, and in my view was entitled to find, that the Plaintiffs failed on the merits to prove the alleged payment. The Respondent’s own amended submissions before this Court also maintained that the claim failed independently on proof, credibility, and authenticity.

I am therefore of the view that the safer and more substantial basis of disposal is failure of proof. Even if there were some arguable weaknesses in the precise way res judicata was expressed by the SCJ, that would not affect the outcome because the Plaintiffs’ case still failed on the evidence.

For that reason, this ground does not assist the Plaintiffs. Adverse inference for not calling Asokkumar

The Plaintiffs argued that because Samsul said he delivered the money to Asokkumar, and because Asokkumar was not called by the Defendant to rebut that allegation, the Court should draw an adverse inference under section 114(g) of the Evidence Act. This was also pleaded expressly in the amended Memorandum of Appeal.

This submission cannot succeed.

Section 114(g) is not a substitute for proof. It permits, in an appropriate case, an inference to be drawn from a party’s failure to call material evidence within its control. But such inference cannot relieve the opposite party from first establishing a prima facie case on the material fact which it asserts. Nor can it repair contradictions, gaps, and weaknesses in the evidence of the party bearing the legal burden (see Arulpragasan a/l Sandaraju v. PP [1996] 1 MLRA 588 and In Strike Sdn Bhd v. Foong Sau Har & Ors [2021] MLRHU 213).

In the present case, the primary burden lay throughout on the Plaintiffs to prove payment. The Defendant was entitled to submit, as it did, that its burden to disprove the Plaintiffs’ allegation or to prove forgery did not meaningfully arise unless and until the Plaintiffs had first established the genuineness of P-2 and the fact of payment.

More importantly, the record shows that the Plaintiffs’ case was not rejected simply because the Defendant called no rebuttal witness. It was rejected because the Plaintiffs’ own evidence was found wanting. The SCJ found the evidence of Norhuda, Luqman, and Samsul inconsistent and unsupported by reliable objective circumstances. In that setting, section 114(g) could not operate to fill the evidential void.

Further, the premise of the Plaintiffs’ submission is not entirely accurate. The Defendant’s position was advanced through the witnesses it did call, including evidence relating to the MyTaman records and the absence of any record of Samsul visiting the house on the material date. The Court was therefore not dealing with total silence on the Defendant’s part.

I therefore find that the SCJ did not err in declining to draw an adverse inference under section 114(g) in favour of the Plaintiffs. Whether the SCJ’s findings were against the weight of the evidence

This final issue is really a composite challenge to the entirety of the SCJ’s factual assessment. I am unable to accept it.

When the record is read as a whole, the SCJ’s decision reflects a reasoned acceptance of the Defendant’s criticisms of the Plaintiffs’ case. The Plaintiffs sought to prove an unusual and substantial cash payment through a chain of witnesses closely connected with each other, without satisfactory objective corroboration, and through a disputed acknowledgement letter whose original was not produced. The Defendant, in contrast, identified several internal weaknesses and surrounding circumstances inconsistent with the Plaintiffs’ narrative. The SCJ was entitled to conclude that the Plaintiffs had not crossed the threshold of proof on a balance of probabilities.

This Court cannot intervene merely because another view of the evidence is theoretically possible. The Plaintiffs have not shown that the SCJ’s findings were plainly wrong, nor that the SCJ ignored decisive evidence that would necessarily have changed the result.

For all the reasons above, I find that the Appellants failed to establish any appealable error in the SCJ’s dismissal of the suit. The SCJ was entitled to find that the alleged payment of RM980,000.00 was not proved. The challenge based on section 114(g) fails. The complaint that all issues were not separately addressed does not alter the result. The issue of res judicata, even if arguable in isolation, does not affect the outcome because the suit failed independently on the merits for want of proof.

Accordingly, the appeal is dismissed with costs of RM8000, subject to the allocator. Dated this: 9th April 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Appellants : Lim Jin Wen Messrs T. Y. The & Partners For the Respondent : Kee Hui Yee together with Asma Badrul Azmi Messrs Kanesalingam & Co.