Abdul Jalil Bin Abdul Muthalib v Kekatong Sdn Bhd (WA-A72NCC-50559-12/2023)

This is an appeal filed by the Defendant after this Court had allowed the Plaintiff’s claims against the Defendant with costs.

Facts of the case can be summarised as follows: i) On the Defendant’s request, the Plaintiff on 9th September 2011 has advanced an amount of RM 40,000.00 on behalf of the Defendant to Dato’ Malik Imtiyaz Sarwar (DMIS) being a legal fee for two (2) leave applications (OS 228 and OS 229) in the Federal Court whereby the Defendant is the applicant for those two applications. 2 ii) The Plaintiff alleged that the Defendant via M. Jayaraman (ex-director of the Defendant) and Mr. Abdul Latiff bin Mohd Ismail (DW1) promised that the said amount advanced by the Plaintiff will be paid back by the Defendant when the Defendant is able to pay back in the future. iii) However, the Defendant denied. There was no such promise made by the Defendant or its directors and DW-1 was never been informed by the late M. Jayaraman that the Plaintiff has paid the legal fees on behalf of the Defendant or such promise of repayment existed. iv) The Plaintiff later in September 2023 found that the Defendant is in the position to repay him since the High Court of Malaya in Kuantan in interpleader summon proceeding has ordered a sum of money amounting to RM 200,000 with the interest (total sum is around RM 360,000.00) to be returned to the Defendant. v) Therefore, the Plaintiff initiated this action against the Defendant to recover his money from the Defendant. Meanwhile, the Defendant claimed in the event there is such promise made by the Defendant via its director/directors, the Plaintiff’s action is caught by limitation period and time barred. C. ISSUES TO BE TRIED

In this case, parties had agreed to focus on four (4) main issues to be tried by this Court as per Enclosure 42.

This Court is guided by but not limited with the agreed issues in determining, on the balance of probabilities, claims made by the Plaintiff against the Defendant. Summary of the issues to be tried are as follows: i. Whether the Plaintiff has paid an amount of RM 40,000 to Dato’ Malik Imtiyaz Sarwar on behalf of the Defendant? If yes, whether the payment made is upon the Defendant’s request or in alternative, whether the Defendant has knowledge but did not object to the said payment made by the Plaintiff? ii. Whether there is an oral agreement that the payment paid by the Plaintiff on behalf of the Defendant is a friendly loan with a term that the Defendant will repay as soon as the Defendant has sufficient fund to do so? iii. Whether the Plaintiff’s claim is time barred? D. LAW ON EVIDENCE

It is trite that the Plaintiff has the legal burden to prove his claim and, as prescribed by sections 101 and 102 of the Evidence Act, which read: i) 101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. ii) 102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [6] This was explained in a Federal Court case “HONG YIK TRADING V. LIZIZ PLANTATION SDN BHD [2017] 8 CLJ 491”, in the following words: “It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (section 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence.” [7] Reference is also made to the case of “GERARD JUDE TIMOTHY PEREIRA V. KASI A/L KL PALANIAPPAN [2017] CLJU 889” whereby it was held by the Court of Appeal that: “As rightly pointed out by the learned trial judge himself, in a civil case the plaintiff bears both the legal and evidential burden of proof (see ss. 101 and 103 Evidence Act 1950 ). It is also trite law that legal burden is imposed by law and remains with the plaintiff throughout the trial and never shifts to the defendant. On the other hand, evidential burden moves to and fro between the plaintiff and the defendant depending on the state of the evidence introduced at any one stage of the trial, and unless and until the plaintiff discharges his evidential burden by establishing a prima facie case, there is no burden on the defendant to prove his defence, no matter how weak his defence might be.” E. ANALYSIS AND FINDINGS First Issue: Whether the Plaintiff has paid an amount of RM 40,000 to Dato’ Malik Imtiyaz Sarwar on behalf of the Defendant? [8] SP1 testified that on September 2011, he had advanced a sum of RM 40,000.00 by way of cheque on behalf of the Defendant to Dato’ Malik Imtiyaz Sarwar (DMIS) being a legal fee for two (2) leave applications (OS 228 and OS 229) in the Federal Court whereby the Defendant is the applicant for those two applications. [9] SP1 further said that he advanced the money as the late M. Jayaraman (ex-director of the Defendant) and DW1 had convinced him that the Defendant will repay the said amount paid when the Defendant is able to do so in the future. SP1 also had produced a receipt issued by Messrs. Malik Imtiyaz Sarwar dated 25th March 2024 with the amount of RM 40,000.00 for the payment of two (2) leave applications (OS 228 and OS 229) received from the Plaintiff. The receipt also stated that the bank in date for the cheque issued by the Plaintiff is on 9th September 2011. [10] DW1 in his statement testified that he was never being informed by Mr. Jayaraman about the fees paid by the Plaintiff. He further testified that he had no knowledge that a sum of RM 40,000.00 was paid to DMIS and neither he had knowledge that the Defendant has paid any money to DMIS. [11] This Court found that testimony of DW1 is quite strange. He himself admitted during cross examination that he is the person affirmed and signed affidavit in support for both leave applications. He also was present when the Plaintiff and Mrs Geetha met and discussed with DMIS about the leave applications and DMIS appointment as the lead counsel in the abovesaid leave applications. DW1 also as the director of the company at that material time has never objected to the said appointment and arrangement on behalf of the Defendant. [12] Furthermore, DW1 testified that the Defendant has never paid any money as a legal fee to DMIS. However, there is also no explanation or narrative forwarded by DW1 on who has paid for the legal fees since DMIS had appeared before Federal Court for OS 228 and OS 229 applications representing the Defendant. Hence, certainly there must be other person who paid the legal fee to DMIS on behalf of the Defendant. If no one has paid for the legal fee, DMIS will not appear and represent the Defendant at the Federal Court and certainly will demand his legal fees to be paid then by the Defendant. [13] The Defendant also failed to contradict or challenged the Plaintiff version. The Defendant also never object to the said payment made by the Plaintiff, if the Defendant never agreed to the payment and never instruct the Plaintiff to do the payment. [14] Having reviewed the evidence it is clear that RM 40,000.00 were indeed paid out by the Plaintiff to Dato’ Malik Imtiyaz Sarwar on behalf of the Defendant being a legal fee for two (2) Federal Court’s leave applications. This is borne out by the evidence of the Plaintiff himself and even the Defendant’s witness, DW1. The documentary evidence to support this is to be found in Common Bundle evidencing the receipt of a monies in the sum of RM 40,000 issued by the firm stating the monies received from the Plaintiff being a legal fee for two

Defendant’s Federal Court’s leave applications. Second Issue: Whether there is an oral agreement that the payment paid by the Plaintiff on behalf of the Defendant is a friendly loan and the Defendant will repay as soon as the Defendant has sufficient fund. [15] It is clear the fact that the Plaintiff had advanced his money to Dato’ Malik Imtiyaz Sarwar on behalf of the Defendant is irrefutable. However, there appears to be no express terms as to its repayment and neither can any be implied. The Plaintiff claimed that there is an oral agreement that the legal fee paid is a friendly loan with a term that the Defendant will repay as soon as the Defendant has sufficient fund to do so. [16] However, the Defendant through DW1 denied the Plaintiff allegation. The Defendant never instructed the Plaintiff to pay the said amount and there is no Agreement, Undertaking and/or Guarantee between the Plaintiff and the Defendant that the Defendant would repay the said alleged sum when the Defendant was able to do so. [17] In the case of “TAY MARY v. CAPITOL PROSPER SDN BHD [2024] CLJU 2759“, the Court reaffirmed position taken in “BUKIT KIARA RESORT BERHAD v. DATO BANDAR KUALA LUMPUR [2011] CLJU 1045”. The Court in Tay Mary (supra) held that: “Whilst it is true that information about the persons who entered into the oral agreement, the date, time, and place of the oral agreement are important, the existence or otherwise of an oral agreement can also be gleaned from other facts and not necessarily from such information alone. The court has thus looked wider at the actions and reactions of the parties to decipher if they are more consistent with there being an oral agreement between the parties." [18] SP1 when being cross examined by the Defendant’s counsel has stated that the payment made is a friendly loan. SP1 testified: D: I put it to you that you don’t have any stands to claim money for the defendant today? AJ: This is a friendly loan… [19] Since this is a friendly loan as the Plaintiff stand, therefore no formal agreement was made between parties. SP1 has stated that: D: Can we go to the next question please, Is there any other document that is in the bundle the is filled in court today to show that the payment that you alleged were made with you late Mr Jayaraman and Mr Latiff. Any other document to show the arrangement? AJ: We trusted each other D: So verbal, okay so you said it was verbal already. Lets go to the next question, I put it to you that there’s no such evidence and documents to proof that Mr Latif as the director of the defendant had requested the alleged claim from you, correct? AJ: Mr Latif is my close friend, an honest guy, a very nice man and he wouldn’t do this type of thing the problem started with this case when your lawyer Mr Proctor came into the scene, last August that’s how the problem started, we were friends for 50 years and he was my childhood friend and we grew up together. [20] When the Court is presented with two versions arising from an alleged of oral agreement, then trial judge must decide which party’s version of an oral agreement should be preferred. [21] I begin with an analysis of the applicable law. In the case of “YYT IMPORT & EXPORT SDN. BHD. v. LO SWEE LING [2023] CLJU 888 “, it was held: “22] In my view, when a trial judge has to choose whether the Plaintiff’s or the Defendant’s version of an oral agreement should be believed, the correct approach is to consider the testimonies of all the witnesses and analyse whether they are consistent with their past conduct, past acts as well as the contemporaneous documents. The objective is to test which version of an oral agreement is clearly more consistent with the factual matrix and so should be accepted by the trial judge.” [22] I also further explored and get guidance from the case of “NURI ASIA SDN BHD v. FOSIS CORPORATION SDN BHD [2006] 5 CLJ 307” whereby the Court held: [13] In my judgment, the issue herein revolves around the existence or otherwise of an oral guarantee. The first step towards the resolution of this issue is to determine the burden of proof. [14] Section 101 of the Evidence Act 1950 provides as follows: 101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. [15] As the plaintiff desires this court to give judgment as to the legal right or liability, dependent on the existence of facts which he asserts in relation to the existence of an oral guarantee, the plaintiff must prove that those facts exist, in accordance with s. 101(1). Under s. 101(2), the burden of proof lies on the plaintiff (see alsoMBf Finance Bhd, supra, and Tenaga Nasional Berhad (Formerly Lembaga Letrik Negara Tanah Melayu) v. Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn. Bhd.) [1995] 4 CLJ 670 HC). [16] As this is a civil case, the burden of proof may be discharged by the plaintiff on a balance of probabilities ie, that the plaintiff's version is probably true. [17] The evidence adduced by the parties respectively pertaining to the existence or otherwise of an oral guarantee is sharply conflicting. I therefore follow the safer approach set out by Chang Min Tat FJ (as he then was) for the Federal Court in Tindok Besar Estate Sdn Bhd, supra, Ie, to refer to and rely on the witness' acts and deeds which were contemporaneous with the event and to draw reasonable inferences from them, adding that judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and circumstances of the case, and that plausibility should never be mistaken for veracity. [18] The above approach was also applied by James Foong J (now JCA) in Industrial Concrete Products, supra.” [23] In our present case, SP1 was very clear during cross-examination, as evident from the following exchange: D: yes, so I will read it to you yea, the question is can you explain to the honorable court why did you make the payment to the lead counsel on behalf of the defendant that’s the question? AJ: yes D: and your answer is, yes I made the payment to the defendant at the request of Mr Raju Jayaraman and Mr Latif, whereas Mr Raju is the beneficiary and controller of the defendants company AJ: yes D: Mr Raju and Mr Latif assured that they will cause the defendant's company to repay the RM40k as soon as the defendant has sufficient funds to do so, so that’s your answer right? AJ: Yes D: Okay, according to answer number 5, can you tell this honorable court the date or when the arrangement made between you, Mr Raju and the director of defendant Mr Latiff? AJ: Okay D: Im only asking the date AJ: This happened many years ago, I cant remember the exact date but I will tell you now that Mr Jayaraman was a criminal lawyer in Penang, he was staying with me, his house was auctioned he had no where else to go, I provided a room in my house for him and lucky he was my close friend for more than 50 years, he comes and goes everyday from my house and he is the… this is how our relationship and how these transactions came about”. [24] DW1 during cross examination testified that: S: Right. So you know the plaintif here paid Imtiaz RM40k behalf AL: Okay S: I am not asking ok, yes or no? AL: Yes S: And is the plaintif a director of this company of Kekatong? AL: No S: Is he an employee at the company? AL: No S: So when the plaintiff paid RM40k to Imtiaz behalf of Kekatong obviously Kekatong has to pay the plaintiff back, correct? Because you just mentioned the plaintiff is not a director of Kekatong so now, since the plaintiff has given money on behalf of Kekatong, surely they have to pay back AL: … S: Yes or no, it is simple yes or no just answer that, your lawyers will re-examine you, you do not need to worry, right now just answer my question Kekatong has to repay plaintiff yes or no AL: Yes has to pay Jalil, is it? S: Yes, yes? AL: Yes okay H: So the answer is yes? Kekatong has to repay? AL: I have to explain on this.. S: The question is very simple, Kekatong has to pay the plaintiff RM40k, correct? AL: Correct S: Yes or no AL: Yes [25] DW1 further clarified in re-examination that: D: Okay, just now the counsel also posed you a question Kekatong, since Kekatong paid the, since the plaintiff paid the money to Dato Malik now Kekatong has to repay the money to plaintiff and you said yes can you please explain on that? AL: Kekatong never direct and no company resolution… by Kekatong to the plaintiff to pay the money and Kekatong agreed to pay back once they have the money, Kekatong has no business, no business activities, no place of business okay they don’t have money, even I am not paid also for many years as an employee I was not paid.” [26] Based on the evidence set out above, I am of the view that the Plaintiff had sufficiently proven that he advanced a total amount of RM 40,000.00 based on Mr. Jayaraman and DW1 oral agreement and conducts that the Defendant will repay as soon as the Defendant has sufficient fund to do so. [27] I shall now state my reasons. [28] At the outset, there is no reason for the Plaintiff to pay out of his pocket such a huge amount gratuitously on behalf of the Defendant. The Plaintiff has no interest or beneficial interest over the Defendant. DW1 also failed to show to the Court that the Plaintiff is in the position to benefit something from the Defendant when he paid the legal fee. [29] The Plaintiff has explained in his testimony that the late Mr. Jayaraman is his close friend for more than 50 years. He was staying with the Plaintiff because his house was auctioned and he had nowhere else to go. Even DW1 also is a close friend of the Plaintiff. DW1 admitted he has been with the Plaintiff for almost 17 years before he was chased out from the Plaintiff’s house in November 2023. [30] This is how the Plaintiff, the late Mr. Jayaraman and DW1 relationship is and how this transaction came about. It is purely a friendly loan given by the Plaintiff based on the trust as the late Mr. Jayaraman and DW1 are his good and old friend of him. [31] Secondly, I relied on DW1 testimony that the amount recovered from the Interpleader proceeding in the High Court of Malaya in Kuantan is going to be used to repay one Dato’ David Yeoh Eng Hock (DDYEH) for the money amounted to RM 200,000.00 plus the interest that he lent to the Defendant’s beneficial owner/shareholder, the late Mr. Raju Jayaraman Kerpaya in 2004. [32] It is pertinent to note that the arrangement for the money lent by DDYEH also was made by oral agreement between the late Mr Jayaraman and DDYEH. DW1 even testified that he saw and heard that DDYEH gave RM 200,000.00 to Jayaraman and Jayaraman verbally promised to DDYEH he will refund the money with the interest if the money is not used (since the money is used as security deposit). [33] Applying the abovesaid principle in the case of YYT IMPORT & EXPORT SDN. BHD (supra) i.e “to analyse whether they are consistent with their past conduct, past acts as well as the contemporaneous documents”, the Court is convinced enough to make an inference that the late Mr Jayaraman in 2011 also verbally promised the same thing to the Plaintiff when he asked the Plaintiff to advance his money to pay the legal fee and that the Defendant would repay the said alleged sum when the Defendant was able to do so. [34] Thirdly, the Plaintiff persistently believe and affirmed that he paid the legal fee with the view that the Defendant will repay him back later. Unlike the Defendant, regardless of the way the learned counsel for the Defendant posed questions to the Plaintiff on this issue, the Plaintiff’s version remained consistent. The Plaintiff is always unswerving in his testimony when he said that he never intended that the money advanced ought not to be repaid, but the Plaintiff hold on to the promise and assurance that the Defendant will repay the money when the Defendant is able to do so. [35] I seek guidance from the case of “GERARD JUDE TIMOTHY PEREIRA v. KASI KL PALANIAPPAN [2017] CLJU 889” whereby the Court of Appeal held that: “[50] As rightly pointed out by the learned trial judge himself, in a civil case the Plaintiff bears both the legal and evidential burden of proof (see: sections 101 and 103 Evidence Act 1950 ). It is also trite law that legal burden is imposed by law and remains with the Plaintiff throughout the trial and never shifts to the Defendant. On the other hand, evidential burden moves to and fro between the Plaintiff and the Defendant depending on the state of the evidence introduced at any one stage of the trial, and unless and until the Plaintiff discharges his evidential burden by establishing a prima facie case, there is no burden on the Defendant to prove his defence, no matter how weak his defence might be. [51] Applying the legal principle governing the burden of proof in a civil claim, we were in entire agreement with the Plaintiff's counsel that based on the facts and circumstances of the present case as set out above, the Plaintiff was entitled to rely on the cases of Wong Hong Leong David v. Norazman Bin Adnan (supra) and Tan Aik Teck v. Tang Soon Chye Tan (supra) as authorities for saying that the Plaintiff had sufficiently discharged his evidential burden to establish a prima facie case that the payments made to the Defendant were for the purpose of a Friendly Loan and the burden was shifted to the Defendant to prove, by admissible evidence based on his pleaded case, that the payments were not made pursuant to a Friendly Loan, which the Defendant had failed to discharge.” [36] However, the Defendant’s version is just a bare denial by DW1. In this case, no evidence was led by the Defendant showing any other promise or statement made by the Plaintiff that the advanced money is not a friendly loan, and the Defendant is not required to repay it back to the Plaintiff. [37] To worsen the matter, SD 1 even admitted during cross examination that the Defendant needs to repay the Plaintiff. He said: Q: The question is very simple, Kekatong has to pay the plaintiff RM40k, correct? A: Correct Q: Yes or no A: Yes [38] Thus, the consistency of the Plaintiff’s testimony and the failure of the Defendant to discharge its evidential burden that the advanced money by the Plaintiff on behalf of the Defendant is not a friendly loan has led me to the finding that the Plaintiff was, on a balance of probabilities, speaking the truth. [39] It is therefore it was held that there is an oral agreement of friendly loan entered into between the Plaintiff and the Defendant through Mr. Jeyakumar in 2011 with the term that the loan of RM 40,000.00 was repayable upon the Plaintiff’s demand as soon as the Defendant has sufficient fund to do so. Third Issue: Is The Plaintiff’s Claim Barred By Limitation? [40] The Defendant also claimed that in the event that this Court accepted Plaintiff’s version, the plaintiff’s action is however barred by limitation, as the RM 40,000.00 advanced were provided on behalf of the Defendant in September 2011. Thus, the Defendant argued that upon the filing of this claim in December 2023, the six-year limitation period under section 6(1) of the Limitation Act 1953 had set in. [41] It is trite that the cause of action for a contract accrues from the date of its breach and the time runs from that breach. Section 6(1)(a) of the Limitation Act 1953 (Act 254) provides as follows:

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

actions founded on a contract or on tort; [42] In the most recent decision, the Federal Court in the case of “OBATA-AMBAK HOLDINGS SDN BHD v. PREMA BONANZA SDN BHD & OTHER APPEALS [2024] 8 CLJ 519” held: “……In respect of limitation we are of the view that based on the law on limitation it is clear that time begins to run at the earliest point of time the claimants, Obata and Vignesh could commence action. The cause of action would have accrued from the date of the execution of the SPAs or if there was any breach of the terms of the SPAs. This court in Tenaga Nasional Bhd v. Kamarstone Sdn Bhd [2014] 1 CLJ 207 at 221 held: ... A cause of action founded on a contract accrues on the date of its breach, and in the case of a debt, the cause of action arises at the time when the debt could first have been recovered by action.” [43] It must be noted that that limitation does not affect a plaintiffs cause of action. A cause of action which is complete will remain so despite the fact that limitation may have set in. It does not extinguish debts but merely bars the right to recover the debts after the specified time has lapsed from the accrual of the cause of action. [44] In the case of “BONGSOR BINA SDN BHD v. SH BUILDERS & MARKETING SDN BHD [2024] 7 CLJ 199”, the Court of Appeal held: “The primary objective of limitation law is to discourage plaintiffs from sleeping on their right to act and, more importantly, to have a definite end to a stale claim. In other words, the plaintiffs will be penalised for sitting on their right to act within the time set under the LA 1953 even though the debts are still due. Based on such serious consequences, we observed that the courts will usually prefer to adopt a liberal approach in interpreting the law to avoid such penalties in any particular case. In Tuck & Sons v. Priester [1887] 19 QBD 629 at 638, Lord Esher MR held as follows: ... We must be very careful in construing that section, because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must give the more lenient one. That is the settled rule for the construction of penal section....” [31] Considering the aforementioned principles of interpretation of the law on limitation to this present appeal, we are of the considered view that the liberal or reasonable approach should prevail over the strict approach, since it involves an act of taking away the plaintiff's right to act against the defendant. Thus, the legal maxim dubiis, benigniora praeferenda sunt, which means in doubtful cases, the more favourable views are to be preferred, and the more liberal interpretation should apply.” [45] Therefore, the Court must be vigilant yet reasonable in deciding on the issue of limitation. To begin with, this Court has agreed with the Plaintiff’s position as decided above i.e the friendly loan is repayable upon the Plaintiff’s demand as soon as the Defendant has sufficient fund to do so. [46] Moving on the said premise, this Court refers to the case of “SHORGA SDN BHD v. AMANAH RAYA BERHAD [2010] CLJU 709” whereby it was held: “If a loan is given without any date being fixed for its repayment, time runs against the creditor from the moment the loan is disbursed. (Poh Chu Chai. 5th Ed. Law of Banker and Customer). In Tay Ivy v. Tay Joyce [1992] 1 S.L.R. 893, the facts being the Plaintiff at the oral request of the defendant granted the defendant a friendly loan of $ 10,000 in

An attempt was made in 1988 to recover the loan. Michael Hwang JC in that case decided, inter alia, that when a loan was given without fixing a date for its repayment, time ran against the creditor from disbursement of the loan. The Court also expressed the view that if the loan was repayable on demand, time ran against the creditor from the date of demand.” [47] In “TAN LENG KEAT v. KAYANGAN MUTIARA SDN BHD [2019] CLJU 1386”, it was held that: [12] Thus, the cases state that if there is no fixed term of repayment time runs for the purposes of limitation from the date the loan was disbursed. However if there are terms of repayment which require the making of a demand a condition precedent to the existence of the right of action then time does not run until the service of the demand.” [48] In the present case the Plaintiff states that although there is no fixed term of repayment, it was orally agreed between the Plaintiff and the Mr. Jayaraman that the repayment is to be made upon the Plaintiff’s demand as soon as the Defendant has sufficient fund to do so. [49] It is undisputed facts by the parties that the Defendant has got an order from the High Court of Malaya in Kuantan in it’s interpleader summon. In that summon, the Court on 27th November 2023 has ordered the security deposit amounting to RM 200,000.00 and its interest of RM 160,000.00 to be returned to the Defendant via its solicitor Messrs. Y S Woo & Proctor. [50] Thus, it is the Plaintiff’s position that soon after the Court ordered as such, the Defendant is now able to repay the Plaintiff since the Defendant has sufficient fund to do so. Hence, the repayment of the friendly loan granted by the Plaintiff to the Defendant should have started after 27th November 2023. [51] The Plaintiff admitted that he has never demanded from the Defendant or its director prior to November 2023 since the Plaintiff believes that the Defendant has no money and is incapable of paying him. He just initiated the recovery action against the Defendant soon after he realised that the Defendant is getting around RM 360,000.00.00 arising from the said Interpleader Summon. [52] Meanwhile, The Defendant argued that all the money they are getting from the Interpleader Summon is to be returned to Dato’ David Yeoh Eng Hock after deducting Defendant’s solicitor cost since the security money belongs to the said Dato’ Yeoh. [53] However, the probabilities of an arrangement existing between the Defendant and this Dato’ Yeoh in the sense advanced by the Defendant can only be described as not extending beyond bare oral averments without the necessary documentary support and without further credible evidence. There is no evidence produced before the Court by the Defendant. Thus, the Court cannot verify the veracity of the Defendant’s version. [54] Regardless of the accuracy of the said arrangement, it is pertinent to state that this arrangement is not immediately relevant to this present case. This Court is of the view that such arrangement does not negate the fact that the Defendant still owed RM 40,000.00 to the Plaintiff and the Defendant after receiving the said money is to be regarded in the good position to pay back the Plaintiff. [55] Moreover, neither party has put forward any evidence before this Court to show that at any point of time prior to November 2023, the Defendant is in a good financial situation and is able to repay the Plaintiff. Consequently, the 6 years’ time limit against the Defendant begun on the date when the Plaintiff demanded from the Defendant to repay the friendly loan. The Plaintiff’s recovery action in this Court is clearly an act of official demand by the Plaintiff against the Defendant after the Plaintiff realised that the Defendant has sufficient fund to do so. [56] Therefore, it is hereby declared that the Writ of Summon which was filed on 20th December 2023 is been instituted within the six years and as such is not statute-barred. F. CONCLUSION [57] Having evaluated all the evidence and considered the submissions of both parties, I am satisfied that the Plaintiff has proven his claim against the Defendant on a balance of probabilities. [58] I am therefore allowing the Plaintiff’s claim against the Defendant as prayed in the amended Statement of Claim with costs of RM 4,000.00 to be paid by the Defendant. [59] I end by expressing the Court’s admiration and appreciation to all Learned Counsel for both parties for all of their fine efforts in the conduct of this matter, which were of great assistance to the Court. Dated 27th January 2025 MUHAMMAD NAJIB BIN ISMAIL Magistrate, Magistrate Court (Civil 9), Kuala Lumpur. Plaintiff’s Counsel : Satchitanandan a/l Vedha Ratnam & Chan Hoo Yan [Tetuan Preakas & Partners] Defendant’s Counsel : George Chelvaraj Proctor [Tetuan Y S Woo & Proctor]