Affin Bank Berhad v 1. ) Gpe Industrial Supplies Sdn Bhd (JA-A52NCC-591-11/2024)

AND GPE INDUSTRIAL SUPPLIES SDN BHD (NO. SYARIKAT: 201701007038 [1221203-A])

POOI CHEE KIONG

CHAN BOON PING (NO. K/P: 830220-01-5515) …DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 30)

The plaintiff filed an application for summary judgment against the third defendant. The application was granted by this Court on 16.12.2025, with costs of RM1,800.00.

The third defendant, dissatisfied with the decision, filed this appeal.

As for the first and second defendants, judgment in default of appearance has been entered against them.

The plaintiff is a licensed bank, and the first defendant is a company. The second defendant is a shareholder and director of the first defendant. The third defendant was a former shareholder of the first defendant from 30.11.2020 to 21.7.2021.

As stated earlier, all defendants except the third defendant had judgment entered against them in default of appearance.

At the request of the first defendant, a loan was granted to them by the plaintiff, with the second and third defendants serving as guarantors.

The plaintiff and the first defendant entered into a facility agreement on 1.4.2021. The first defendant defaulted in payment, and on 16.5.2024, the plaintiff terminated and recalled the facility agreement.

The application for summary judgment is governed by O.14 of the Rules of Court 2012 (the ROC 2012):-

Application by plaintiff for summary judgment (O. 14 r. 1)

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

The Federal Court in the case of National Company for Foreign Trade v Kayu Raya Sdn Bhd 1984 1CLJ 283, set out the preliminary requirements of an application under O.14, which are as follows:

the defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant;

(iii) the affidavit in support must comply with the requirements of Rule 2 of O.14.

In National Company of Foreign Trade (supra), it was also held that if the plaintiff satisfies the above considerations, a prima facie case is established against the defendant, and the burden shifts to the defendant to show why the Court should not grant summary judgment against him.

This Court finds that the plaintiff has met the requirements outlined above. Therefore, a prima facie case has been established against the third defendant, who must now demonstrate to this Court that the case warrants going to trial.

THE DEFENDANT’S ARGUMENTS The affidavit in reply by the defendant opposed the application for summary judgment. The defendant averred that he left the company as early as 2022 due to internal conflict.

It was also the defendant’s assertion that the plaintiff did not demonstrate to the court efforts made to enforce the judgment against the first and second defendants.

The defendant asserted that he did not sign any Letter of Guarantee and that his signature on the Letter of Guarantee was forged. He further denied any knowledge of the lawyer, Kelly Lim Chia Lee, who purportedly witnessed the signing. Additionally, the defendant filed a counterclaim seeking a declaration that the Letter of Guarantee dated 1.4.2021 is null and void.

The third defendant argued that the claim of a forged signature on the Letter of Guarantee is a serious matter and it is a triable issue.

PLAINTIFF’S ARGUMENTS The plaintiff averred that on 6.6.2024, the first plaintiff had admitted its indebtedness to the plaintiff

In its affidavit in reply, the plaintiff stated that at all material times, the third defendant did not raise the issue that his signature was forged. No police report was ever lodged by the third defendant regarding that matter.

The plaintiff also affirmed in its affidavit that the third defendant not only signed the Letter of Guarantee dated 1.4.2021 but also swore a statutory declaration dated 8.4.2021, confirming that he is not bankrupt for the purposes of disbursing the facility agreement. Furthermore, the third defendant and the second defendant approved the member’s written resolution dated 5.2.2021, which authorized them to guarantee the facility agreement. The Letter of Guarantee, statutory declaration, and members’ resolutions are exhibited in Exhibit AFB-1 of the plaintiff’s affidavit in reply. Therefore, the plaintiff submitted that the claim by the third defendant that his signature was forged in the Letter of Guarantee is an afterthought, baseless, and without any proof.

ANALYSIS AND FINDINGS OF THIS COURT This court finds that the third defendant’s claim that the signature on the Letter of Guarantee was not his and that it was forged constitutes a mere bare assertion. No police report has been lodged by the third defendant concerning such a serious allegation, nor has he produced any handwriting expert’s report or filed an affidavit from a handwriting expert affirming that the signature in the Letter of Guarantee was not his and had been forged. The burden is on the third defendant to prove his assertion that his signature was forged as provided by s.101 of the Evidence Act 1950, which states as follows:

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.

It was also decided in the case of Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry & Other Appeals (2025) 2 CLJ 683, the Federal Court held that: “‘However, on the question of who in law, shall bear the burden to prove forgery, specifically in this case, the alleged forgery of Henry's signature, we are of the unanimous view that the Court of Appeal had fallen into error in placing that onus on Gary, instead of on Henry. Clearly, Henry was alleging that his signature on the SSA was a forgery. In such a circumstance, because it was Henry who had so alleged, he bore the onus of proving that the signature was a forgery. There is a Latin maxim that reads, "onus probandi incumbit ei qui dicit, non ei qui negat", that translates to mean, the burden of proof lies with the one who speaks, not the one who denies the same”.(Emphasis added)

Additionally, the plaintiff alleged that there are three documents signed by the third defendant: the Letter of Guarantee, the statutory declaration dated April 8, 2021, and the member’s written resolution dated February 5, 2021, which proves the third defendant consented to becoming the guarantor and had put his signature on it. The member’s written resolution explicitly states that the second and third defendants are guarantors for the facility agreement, and their signatures are affixed thereto. However, in his affidavit, the third defendant only contested the forgery of the Letter of Guarantee.

Although the plaintiff exhibited the statutory declaration dated 8.4.2021 and the member’s written resolution dated 5.2.2021 in their affidavit in reply to the third defendant’s affidavit, the third defendant could have requested leave from this Court to file a further affidavit to refute his signature on the statutory declaration and the member’s written resolution. However, this was not done, and this Court finds that the third defendant's failure to contradict constitutes an admission by him. This Court referred to the case of Ng Hee Thoong & Anor v Public Bank Berhad (1995) 6 CLJ 109, whereby the Court of Appeal held that: “It is a well-settled principle governing the evaluation of affidavit evidence that where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted”.(Emphasis added)

Furthermore, the third defendant raised the issue in his pleading, specifically in the Reply to Defence to Counterclaim (Reply), that he did not sign the statutory declaration or the member’s written resolution. In his Reply, he merely denied having signed these documents but did not assert that his signature was forged. Additionally, he did not deny that his signature on these two documents was forged in his affidavits opposing the summary judgment.

Additionally, although the third defendant claimed in his statement of defence that his solicitor had requested the original copy of the Letter of Guarantee, this was never mentioned in his affidavit in reply opposing the summary judgment. The third defendant only reiterated this in his written submission, stating that his solicitor had sent a letter dated 18.3.2025 to the plaintiff’s solicitor, requesting the production of the original Letter of Guarantee, but it was refused via a reply dated 25.3.2025.

However, the mentioned letters were not attached as exhibits in the third defendant’s affidavit, nor did he ever assert in his affidavit that such a request had been made and denied. Clearly, evidence as important as those letters could not have been overlooked by the third defendant, as it would support the claim that he made every effort possible to have the original copies of the three documents inspected by a handwriting expert, but was unable to do so because his request was denied by the plaintiff.

This Court refers to the case of RHB Bank Bhd v Majmekar Holdings Sdn Bhd & Ors (2009) 9 CLJ 73, Nallini Pathmanathan J. (as Her Ladyship then was) decided that the defendant’s bare denial that he did not sign the guarantee without producing any evidence does not warrant a full trial. Her Ladyship also continued to hold that, if bare denial is permitted, it would open the floodgates for debtors to allege fraud and forgery to delay repayment of their debts:- “[17] However there is a minimum evidential threshold that a potential defendant has to attain to enable him to procure leave to defend. He has to show the court that he genuinely harbours a case which warrants going to trial. It cannot be sufficient to simply make an allegation of 'fraud' or 'forgery' without more, and expect that that one allegation in itself will ensure that the matter goes to trial. To so hold would be to open the floodgates to debtors in the commercial world alleging 'fraud' and 'forgery' in response to genuine claims made against them with a view to delaying repayment of duly owed debts. The net effect on the commercial world would be detrimental.(Emphasis added) [18] The issue in this case is whether D3 has in fact discharged the minimum threshold limit to show that he has a genuine and credible defence, as a consequence of which leave to defend should be granted. When his affidavits are pared down to their essence, it is evident that the only fact of any real value that he affirms to is the bare assertion that he did not sign the guarantee. There is no response to the fact of third parties having affirmed seeing him attest the guarantee. There is no factual matrix surrounding the signing of the guarantee that appears to warrant investigation”.

Due to the reasons stated above, this Court found that the third defendant had failed to raise a triable issue. Consequently, this Court believes that this case is suitable for summary judgment. Summary judgment was entered against the third defendant with costs. Dated 12 February 2026 -sgd-SUHAILY BINTI SAMSUDIN JUDGE SESSIONS COURT JOHOR BAHRU JOHOR To the parties’ solicitors: For the plaintiff : Mr.Au Ching Yi (Messrs Manjit Singh Sachdev Mohammad Radzi & Partners) For the third defendant : Ms.Gunasundary a/p Chandramohan (Messrs.Kalpana & Partners)