Affin Bank Berhad v 1. ) Pcs Vision Sdn. Bhd. (WA-22NCC-222-04/2024)

This is a summary judgment application dated 05-09-2024 [Enclosure 8] filed by the plaintiff.

I heard the application on 10-03-2025. Learned counsel for both the plaintiff and defendants were present. However, only the plaintiff’s counsel filed written submission. The defendants’ counsel didn’t file any written submission to oppose the summary judgment application.

After reading the pleadings, affidavits filed and the plaintiff’s counsel’s written submission I allowed the summary judgment with costs of RM 3,000 on the ground there are no triable issues.

To my surprise, the two defendants have appealed to the Court of Appeal on 04-04-2025. These are my Grounds of Judgment.

The plaintiff is a bank. The 1st defendant is a customer of the plaintiff. The 2nd defendant is a shareholder, director and guarantor for loans taken by the 1st defendant from the plaintiff.

The plaintiff sued the two defendants for non-payment of Term Loan 1 and Term Loan 2. The details of these two loans are set out in the Statement of Claim from paragraphs 4 to 7.

The 2nd defendant is a guarantor for these two loans taken by the 1st defendant from the plaintiff evidenced by a Guarantee dated 26-10-

The details of the Guarantee are set out in the Statement of Claim at paragraph 8. [8] By a letter dated 15-01-2024 the plaintiff demanded for the repayment of the loans. The defendants failed to repay. [9] The plaintiff filed a suit and applied for summary judgment. Affidavit filed by the defendants to resist the summary judgment application [10] The defendants filed one affidavit via the 2nd defendant to resist the summary judgment application. [See Enclosure 10]. [11] In this short affidavit of 3 pages, the defendants made bare allegations without proof. [12] The defendants-i. Asserted the Certificates of Indebtedness are without detailed calculations and the defendants are not able to verify the same. [paragraph 5 affidavit]. ii. Asserted they were not allowed to amend the loan documents and the Guarantee prior to signing. [paragraph 8 affidavit]. iii. Deny owing any debt and if a debt is owed the sum claimed is excessive. [paragraph 10 affidavit]. iv. Asserted the interest claimed is excessive. [paragraph 11 affidavit]. The law In an Order 14 application the burden of proof to show a triable issue is on the defendants [13] The Federal Court in Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544 FC [“Cempaka Finance”] has held that in an Order 14 application the burden is not on the plaintiff to prove his case. Steve Shim CJ (Sabah & Sarawak) said at page 551: Quite clearly, the Court of Appeal has put the burden on the plaintiff to prove his case in an O. 14 application. With respect, that cannot be the correct proposition of law. In an application under O. 14, the burden is on the plaintiff to establish the following conditions: that the defendant must have entered appearance; that the statement of claim must have been served on the defendant; that the affidavit in support must comply with r. 2 of O. 14 in that it must verify the facts on which the claim is based and must state the deponent’s belief that there is no defence to the claim. (See Supreme Leasing Sdn Bhd v. Dior Enterprises & Ors [1990] 2 MLJ 36.) Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite. [Emphasis added] [14] The burden of proof to show a triable issue is on the defendants. It is not enough for the defendants to make bare allegations or give a mere general denial of a debt. See Shell Malaysia Trading Sdn Bhd v Filotek Trading Sdn Bhd [1999] 8 CLJ 592 HC, per Jeffrey Tan J. [“Shell Malaysia Trading”]. [15] A court hearing an Order 14 application must take a robust approach and examine carefully to see if sufficient facts and particulars had been given by a defendant to show that there is a triable issue to justify leave to defend. [16] If an alleged triable issue is contradicted or inconsistent with contemporaneous documents the defendant’s alleged triable issue must be rejected. See Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 SC [“Bank Negara Malaysia”]. [17] In Bank Negara Malaysia the Supreme Court said: - “Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application. Thus, apart from identifying the issues of fact or law, the court must go one step further and determine whether they are triable. … [Emphasis added] [18] Further, our courts are now inundated with too many cases due to the Covid-19 pandemic. If a suitable case can be disposed of by way of a summary judgment application, it will assist in clearing the backlog of cases. [19] In Shell Malaysia Trading Jeffrey Tan J said-Lord Blackburn, in John Wallingford v. Mutual Society [1880] 5 App Cas 685 at 704, thus stressed the importance of an affidavit stating facts which can satisfy the court that there is reasonable ground for the stated defence: I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, ‘I owe the man nothing’. Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the judge that there is reasonable ground for saying so. So again, if you swear that there was fraud, that will not do. It is difficult to define it, but you must give such an extent of definite facts pointing to the fraud as to satisfy the judge that those are facts which make it reasonable that you should be allowed to raise the defence. Likewise, in O. 14 proceedings, a defendant’s affidavit must “condescend upon particulars” and “should, as far as possible, deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is, and what facts are relied on to support it”. The English Supreme Court Practice 1997 vol. 1 para. 14/3 - 4/4 relates furthermore: A mere general denial that the defendant is [not] indebted will not suffice (Wallingford v. Mutual Society [1880] 5 App. Cas. 685, per Lord Blackburn, p 701; Re General Rail Syndicate, Whiteley’s case [1900] 1 Ch. 365, per Lord Lindley M.R., p 369; Anon [1875] W.N. 249, per Quain J., p 250) unless the grounds on which the defendant relies on as showing that he is not indebted are stated (ibid). If the affidavit commences with a statement that the defendant is not indebted to the plaintiff in the account claimed, or any part thereof, it should state why the defendant is not so indebted, and state the real nature of the defence relied on (Re General Rail Syndicate, above). [Emphasis added] Application to facts [20] In my view there are no triable issues for the reasons below. Alleged triable issue 1 - The Certificates of Indebtedness are without detailed calculations and the defendants are not able to verify the same. [21] The plaintiff has produced the Certificates of Indebtedness in accordance with section 15.15 of the Facilities agreement dated 26-10-

[See Enclosure 8 exhibits SH-1 and SH-3 at pages 1 and 89 respectively]. [22] On Certificates of Indebtedness the Federal Court in Cempaka Finance has said: i. A certificate of indebtedness issued in accordance with the express provisions of the contract which provide that the certificate is final and conclusive of the matters stated therein is final and conclusive evidence of the amount in the absence of any manifest error on the certificate; and ii. The plaintiff has no further obligation to produce statements of account to prove the debt in an application for summary judgment. [23] To challenge a certificate of Indebtedness the defendants must show: i. The certificate of indebtedness was not issued in accordance with the express provisions of the contract. An instances of non-compliance would be when the certificate of indebtedness was not signed by an officer of the plaintiff as stated in the contract; or ii. There is a manifest error in respect of the amounts stated on the certificate of indebtedness; or iii. There is fraud. [See Cempaka Finance and also Melewar Leisure Sdn Bhd v Danaharta Managers Sdn Bhd [ 2011] 1 CLJ 857 CA]. [24] I therefore hold that Alleged triable issue 1 is not a triable issue. Alleged triable issue 2 - The defendants were not allowed to amend the loan documents and the Guarantee prior to signing. [25] No authorities have been put up by the defendants to support their contention. [26] In any event, the defendants are bound by the agreements they have signed. Alleged triable issue 2 is not a triable issue. Alleged triable issue 3 - Deny owing any debt and if owed the sum claimed is excessive. [27] Alleged triable issue 3 is not a triable issue. This is a bare allegation. In any event, the defendants cannot run this argument in the presence of the Certificates of Indebtedness produced by the plaintiff. Alleged triable issue 4 - Interest claimed is excessive. [28] Alleged triable issue 4 is not a triable issue. This is a bare allegation. In any event, the defendants cannot run this argument in the presence of the Certificates of Indebtedness produced by the plaintiff.

[29] For the reasons above, I allow the summary judgment with costs of RM 3,000 subject to allocatur. ………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Dated: 23th May 2025. COUNSEL: 1) Farisha Binti Mohamed Bajuri for plaintiff. (Rajes Hisham Rahim & Gopal (Kuala Lumpur)) 2) Nizamuddin Abdul Hamid and Zarifah Zuhayra Zakaria for defendants. (Tetuan Zharif Nizamuddin) CASES REFERRED TO: 1) Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 SC. 2) Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544 FC. 3) John Wallingford v. Mutual Society [1880] 5 App. Cas. 685. 4) Melewar Leisure Sdn Bhd v Danaharta Managers Sdn Bhd [ 2011] 1 CLJ 857 CA 5) Re General Rail Syndicate, Whiteley’s case [1900] 1 Ch. 365. 6) Shell Malaysia Trading Sdn Bhd v Filotek Trading Sdn Bhd [1999] 8 CLJ 592 HC. 7) Supreme Leasing Sdn Bhd v. Dior Enterprises & Ors [1990] 2 MLJ 36. 8) Wallingford v. Mutual Society [1880] 5 App. Cas. 685. BOOK REFERRED TO: 1) English Supreme Court Practice 1997 vol. 1 para. 14/3 - 4/4.