1. ) S. Selvaraja A/L Sangara Pillai v 1. ) XXXX (22NCVC-227-02/2013)

3.1 On 18.12.2013:

The plaintiffs obtained a judgment against the defendants for RM1,502,051.28 (L.115, exh SS-1 PDF 7-11).

On 09.04.2014, it was ordered that the defendants pay into court the judgment sum of RM999,416.0028 (L.115, exh SS-1 PDF 12-13).

They supposedly could not enforce the judgment sum against the defendants and have applied for several extensions of time:

On 29.09.2020, it was ordered that the plaintiffs are allowed 40 to issue a writ of execution against the defendants for the judgment sum dated 18.12.2013 even though six (6) years have lapsed (L.115, exh SS-1 PDF 14-15).

On 11.01.2022, the court extended the execution of the judgment sum dated 18.12.2013 until 27.09.2022 (L.115, exh 45 SS-1 PDF 16-17).

On 22.09.2022, the court extended the execution of the Judgment sum dated 18.12.2013 until 20.09.2023 (L.115, exh SS-1 PDF 18-19).

On 26.09.2023, the court extended the execution of the 50 Judgment sum dated 18.12.2013 until 20.04.2024 (L.115, exh SS-1 PDF 18-19).

3.2 On 18.09.2024:

The plaintiffs still failed to enforce the judgment sum and have now 55 filed L.114 to seek a further extension until 20.09.2025 under O.46 r.2(3) RC, which was dismissed with costs. SUBMISSIONS OF THE PLAINTIFFS [4] In attempting to persuade the Court, the learned counsel submitted:

L.114 is required to enable the plaintiffs to take appropriate 60 actions to realise the judgment sums.

The judgment sums supposedly involved trust money in which the defendants tried evading payment.

The plaintiffs, since obtaining the impugned judgment for RM1.5m, had supposedly made various attempts to recover the 65 judgment sums:

Through a Garnishee Proceeding, RM907.45 was recovered from Hong Leong Bank.

Six (6) formal letters demanding payment dated 22.01.2014,

25.06.2014, 04.05.2017, 09.05.2014, 16.05.2017, and 70 05.12.2019 had been issued to the defendant but to no avail.

Several attempts were made to attach some of the properties owned by the defendant, but the defendant included his wife's name as the joint owner and mortgaged all his properties to the bank:

Therefore, any "attachment" to sell the properties was unsuccessful.

(ii) I take cognisance that no details of the supposed attachment proceedings were provided to the Court. 80

Upon obtaining an extension of time from the High Court on 28.09.2020:

The plaintiff commenced a new writ action against the defendant in WA-22NCVC-636-09/2021.

However, the sitting High Court judge had advised them to 85 initiate other actions for more precise execution and to try other means of Judgment Debtor Summons (JDS).

Therefore, the plaintiffs would like to commence the JDS action as soon as they can get an extension of time through the present application.

The plaintiffs claimed to have lodged a police report dated 14.08.2024 at the Seremban Police Station to seek police cooperation in investigating the defendant for alleged "criminal breach of trust”, eleven (11) years after securing the impugned judgment in 2013.

It was also argued that the defendant gave the impression that he wanted to pay all the judgment sums when he proposed to pay the plaintiff RM150,000.00 as a full settlement, which the plaintiffs rejected since what was owed was much more.

The Court must not accept that the defendant is in financial dire 100 straits:

He occupies a bungalow at No. 13 Jalan Wangsa 13, Taman Wangsa Ukay, 68000 Ampang, Selangor.

He owns a "Porsche", and his wife drives a "BMW".

He is the co-owner of not less than two properties. 105 In these circumstances, the plaintiffs prayed for order in terms of L.114. SUBMISSIONS OF THE DEFENDANT [5] The defendant argued: 110 5.1 The plaintiffs obtained the impugned judgment on 18.12.2013 for RM1,502,051.28:

Since then, the plaintiffs have filed and sought an extension of time to execute the judgment four (4) times, i.e., 28.09.2020,

11.01.2022, 22.09.2022, and 26.09.2023.

However, the plaintiffs continuously failed to enforce the Judgment and have now, in L.114, again sought an extension until 20.09.2025 under Rule 46 Rule 2(3) of the Rules of Court 2012.

This is the plaintiffs' failure since the judgment was obtained eleven (11) years ago.

This is causing inconvenience and misery to the defendant, who is now suffering from grave financial problems and do not have any income.

5.2 The plaintiffs have failed to provide reasonable reasons for such 125 delays: "3. Application for leave to issue writ (0.46 r.3)

Such an application shall/ be supported by an affidavit- 130

identifying the judgment or order to which the application relates and, if the judgment or order is for the payment of money, stating the amount originally due thereunder and the amount due thereunder at the date of the application;

stating. where the case falls within rule 2(1J(a), the reasons for the 135 delay in enforcing the judgment or order;

stating, where the case falls within rule 2(1)(b), the change which has taken place in the parties entitled or liable to execution since the date of the judgment or order;

stating, where the case falls within rule 2(1)(c) or (d), that a demand to 140 satisfy the judgment or order was made on the person liable to satisfy it and that he has refused or failed to do so; and

giving such other information as is necessary to satisfy the Court that the applicant is entitled to proceed to execution on the judgment or order in question and that the person against whom it is sought to issue 145 execution is liable to execution on it.

The Court hearing such application may grant leave in accordance with the application or may order that any issue or question, a decision on which is necessary to determine the rights of the parties, be tried in any manner in 150 which any question of fact or law arising in an action may be tried and, in either case, may impose such terms as to costs or otherwise as it thinks just.

5.3 The reasons offered by the plaintiffs in the supporting affidavit (L.115) 155 for the delay are trivial and baseless.

5.4 There has been no stay of execution in this case; therefore, there has been no bar for the plaintiffs to enforce the judgment since 2013, but they failed to do so. Blaming the defendants for their inordinate delay 160 and failure to enforce is untenable.

5.5 Sometime in 2020, the defendant offered to settle and met with the first plaintiff to discuss the purported settlement of a lesser sum but was refused. The defendant is in dire financial straits and have no income 165 to pay the plaintiffs presently: Exhibit JK-2 Affidavit in reply. In support, the defendant cited Bank Kerjasama Rakyat Malaysia Berhad v Pertama Perdagangan Sdn Bhd & Ors [2019] MLJU 1152, where it was observed: “[25] Order 46 rule 3 of the RoC 2012 provides discretionary power to the court to 170 grant leave to issue a writ of execution to enforce a Judgment or order where six years have elapsed since the date of the Judgment or order. The said provision also set out the procedural requirements to be complied with when making an application for leave. In so far as the relevant legal principle for leave application under the said Order 46 rule 3 reference is made to the 175 case of Affin Bank Bhd v Wan Abdul Rahman Wan Ibrahim [2003] 1 MLRA 41; [2003] 1 CLJ 826; [2003] 2 MLJ 609…. [26] Thus, in its Application for Leave, the Appellant, as the applicant, is required to comply with the procedural provisions under Order 46 rule 2 (1) of the RoC 2012 and state sufficient reason for the delay in enforcing the Judgment in 180 Default. It goes without saying what is tantamount to sufficient reason is a question to be determined based on the facts of each particular case. In Perwira Affin Bank Malaysia Berhad Bhd v Golden Produce Sdn Bhd [1993] 3 CLJ Supp 365, the court held that the court need only consider the reasons for any alleged delay within the period of six years from the date the judgment 185 or order was obtained and not thereafter.” The defendant also cited Pacific Sanctuary Holdings Sdn Bhd (Formerly Known as Ideal Prestige Sdn Bhd) v Masaland Construction Sdn Bhd [2020] MLJU 89, CA that observed: 190 “[20] We had perused the affidavit in support of the Plaintiff's leave application on pages 19-22 of the Appeal Record Part B, and we could not find any explanation as to the reasons for the delay in enforcing the judgments and/or order offered by the Plaintiff. On this ground alone, in our view, there was sufficient ground for the learned JC to decline exercising his discretion to 195 grant leave to Plaintiff to proceed with the execution against Defendant. Since there was no explanation given by Plaintiff for the delay, it is thus clear that Plaintiff has failed to satisfy the requirements stipulated under Order 46 rule 3 ROC 2012.” 200 In the circumstances, the defendant prayed that L.114 be dismissed with costs. THE LAW [6] Writ of execution in a nutshell: 205 A writ of execution to enforce a judgment or order may not be issued without leave of court where six years or more have elapsed since the date of the judgment or order: O.46 r.2(a) RC 2012:

The effect of a failure to obtain leave where required is that the enforcement action is incompetent: Malayan Nurses Union v 210 Syarikat Perniagaan Cuepacs Bhd & Anor [2011] 2 CLJ 280.

It will be more advantageous for a successful litigant to comply with an order promptly rather than to suffer the indignities of a lapsed order subsequently or for some other reason as laid down under the above order. What a successful but inactive litigant has 215 to do to revive an order is not only time-consuming but also costly: MBT (M) Sdn Bhd v Syarikat Perniagaan Mesra Sdn Bhd [2004] AMEJ 0007; [2004] 1 MLJ 676, HC.

The burden of proof is on the plaintiff to provide sufficient reasons to justify the delay: Bank Kerjasama Rakyat Malaysia Berhad v 220 East Curve Development Sdn Bhd & Ors [2019] AMEJ 1260; [2019] MLJU 1161. The requirement to provide reasons for delay is mandatory: CIMB Bank Bhd v Teratai Sanjung (M) Sdn Bhd & Anor [2019] AMEJ 0996; [2020] 1 MLJ 249.

It is the trite principle that the discretion whether to grant leave to 225 execute the judgment after the expiry of six years from the date of judgment rests entirely with the court, which would grant leave as long as it is satisfied that the party remains entitled to execute it and has sufficiently explained the delay. In exercising its discretion, the court need only consider the reasons for any 230 alleged delay within six years from the date of the judgment and not thereafter: Tenaga Nasional v Normala binti Mohd Yatim & Anor [2017] AMEJ 1041 at [18] to [21].

The fact that the application was made within the 12 years as prescribed by the Limitation Act 1953 (Act 254), s 6(3) was not a 235 sufficient ground for the granting of leave as the right to sue on a judgment is distinct from the right to issue execution: Affin Bank Bhd v Wan Abdul Rahman bin Wan Ibrahim [2003] 2 AMR 1; [2003] 2 MLJ 509. 240 FINDINGS [7] I have examined all relevant cause papers and the parties' submissions and concluded that the plaintiffs have failed to provide compelling or persuasive evidence that reasonably explained or justified their failure to enforce the judgment obtained eleven (11) 245 years ago on 18.12.2013. [8] It is trite law that an exercise of the Court’s discretion must be supported with legitimate and justified grounds for ruling as such. It is the trite principle that the discretion whether to grant leave to 250 execute the judgment after the expiry of six years from the date of judgment rests entirely with the court, which would grant leave as long as it is satisfied that the party remains entitled to execute it and has sufficiently explained the delay. In exercising its discretion, the court need only consider the reasons for any alleged delay within six years 255 from the date of the judgment and not thereafter: Tenaga Nasional v Normala binti Mohd Yatim & Anor [2017] AMEJ 1041. [9] I take cognisance of the four prior extensions of time granted by the Court to assist the plaintiffs in enforcing the impugned judgment. 260 Returning to Court for the fifth time seeking a similar order on unsustainable grounds is untenable. It complicates matters and adversely impacts the defendant’s position, who presently, after all the years, are allegedly in dire financial standing with no income. 265 [10] It is a trite law that the Court will not assist indolent litigants who sat on their rights:

I find it unreasonable that after eleven (11) years with four extensions granted by the Court, and with all the methods of enforcement in the RC 2012, the impugned judgment could not 270 be enforced against the defendant.

(ii) It begs the question of what the plaintiffs and their solicitor have been doing since 18.12.2013, which appears to be lost as to what to do.

(iii) It's not the duty of the Court to guide the plaintiffs where such 275 duty resides with their appointed solicitor/counsel. Where a party seeks relief, the onus is on such party to satisfy the court that they are entitled to the relief sought: Nanyang Development (1966) Sdn Bhd v How Swee Poh [1970] 1 MLJ 145, 280 FC. Examining the plaintiffs' arguments in paragraph [4] above and their supporting affidavit, I am constrained to find no cogent evidence or persuasive materials sufficient to justify the Court’s exercise of discretion in their favour of granting leave to execute the impugned judgment in L.114. 285 [11] The law is trite that the right to sue on a judgment differs from the right to issue execution: Affin Bank Bhd v Wan Abdul Rahman bin Wan Ibrahim [2003] 2 AMR 1; [2003] 2 MLJ 509, CA:

The appellant in that case, as the plaintiff in the court below, 290 applied:

Under O46 r 2(1) of the old Rules of the high Court 1980 (in pari materia with O 46 r 2(1) of the ROC 2012) for leave to commence execution proceedings against the defendant after six years had lapsed from the date of judgment. 295

(ii) The trial judge dismissed the application because the appellant failed to furnish cogent and acceptable reasons for the grant of leave.

In dismissing the plaintiff’s appeal, Arifin Zakaria JCA (as he 300 then was) observed: “It is trite that the grant of leave under O 46 r 2 is in the court’s discretion. Order 46 r 3 states that an application under O 46 r 2(1) must be supported by an affidavit stating when the case falls within r 2(1)(a), the reasons for the delay in enforcing the judgment or order. 305 Therefore, it is incumbent upon the applicant to furnish the court with sufficient reason in support of such an application. What is sufficient reason? This naturally will vary from case to case. It is not possible for this court to provide an exhaustive list of what is considered to be sufficient reason.” 310 [12] In coming to my decision:

I take guidance from the observation of the Court of Appeal in CIMB Bank Bhd v Teratai Sanjung (M) Sdn Bhd & Anor [2019] AMEJ 0996; [2020] 1 MLJ 249 in holding that by the terms of 315 O. 46 r. 2(1)(a) RC 2012, delay can be countenanced by the court provided the appellant could offer valid and sufficient reason(s) for the delay. The Court cited and followed Ratnam v Cumarasamy & Anor [1965] 1 MLJ 228, where Lord Guest, delivering the judgment of the Judicial Committee of the Privy 320 Council made the following observations: The Rules of Court must prima facie be obeyed, and in order to justify a court extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion. If the law were, otherwise, a party in breach would have an 325 unqualified right to an extension of time, which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation.

In Khor Cheng Wah v Sungai Way Leasing Sdn Bhd [1996] 1 MLJ 223, CA, Gopal Sri Ram JCA (as he then was) said at p 229: 330 In all cases in which delay in approaching the court is an issue, the burden is upon the litigant who has delayed rendering a satisfactory explanation for it. Whether the explanation in a given case is satisfactory or reasonable depends upon the facts and circumstances of each case. And in a matter involving the exercise of discretion, it is for the judge who primarily vests the 335 discretion.

Grounded on these principles, I find that the arguments offered by the plaintiffs, as set out in paragraph [4] above, either taken individually or collectively, do not support the position taken that 340 compelling reasons had been provided to justify or excuse the delay in enforcing the impugned judgment. CONCLUSION [13] All things considered, I dismissed L.114 with costs of RM2,000.00 345 subject to the allocator fee, payable by the plaintiffs to the defendant within sixty (60) days from the date of this order. Dated 03.04.2025 350 (HAYATUL AKMAL ABDUL AZIZ) HIGH COURT JUDGE HIGH COURT OF MALAYA KUALA LUMPUR 355 Parties: M. Jeramal Ganesan Messrs MJ Ganesan Tajul Anuar & Co 360 for the Plaintiffs Kavimani Muthayam Messrs Kavi & Co for the Defendant 365