Alliance Bank Malaysia Berhad v Wong Toon Kai (CA-A72NCC-349-08/2024)

The plaintiff, vide enclosure 16, filed an application to move this court for summary judgment to be entered against the defendant for the amount of RM26,401-91 pursuant to O. 14 r. 1 of the Rules of Court 2012 (herein referred to as "the ROC 2012"). The defendant objected the application.

After perusing the application, affidavits and written submissions by both parties, this court allowed the plaintiff’s application to enter summary judgment against the defendant with costs. The reasons for the decision of this court are set out as below

The plaintiff is a licensed bank with its office address at Collections Litigation & Recoveries, Level 2, Menara Multi-Purpose, Capital Square, No. 8 Jalan Munshi Abdullah, 50100 Kuala Lumpur.

The defendant is an individual having his registered address at B 703 Jalan Beserah, Alor Akar, 25300 Kuantan Pahang.

At the request of the defendant, the plaintiff approved the Visa/Mastercard Credit Card Facility (hereinafter referred to as "the said credit card facility") for the defendant as the credit cardholder for account number 4044 6162 6850 8006, subject to the terms and conditions set forth in the Visa/Mastercard Alliance Bank Agreement (hereinafter referred to as "the Agreement").

The defendant signed the Credit Card Facility Application Form dated 20.02.2003, and the said credit card facility was approved for the defendant. In return for the said credit card facility, the defendant was liable for all amounts utilized under the said credit card facility as the credit card user.

The plaintiff provided the said credit card facility to the defendant, and the defendant used and benefited from the said credit card facility. The plaintiff hereby asserts that the defendant conducted transactions using the said credit card.

In accordance with the latest Statement of Account as of 14.10.2020, the defendant utilized the said credit card facility for transactional purposes, including ‘BigPay’ payments, as follows: Date of transaction Date of posted Transaction Amount (RM)

02.09.2020 07.09.2020 BIGPAY MY-CONNECT KUALA LUMPUR MYS 2,496.00 02.09.2020 07.09.2020 BIGPAY MY-CONNECT KUALA LUMPUR MYS 2,497.00 Date of transaction Date of posted Transaction Amount

02.09.2020 07.09.2020 BIGPAY-EC KUALA LUMPUR MYS 2,498.00 02.09.2020 07.09.2020 BIGPAY MY-ECOM KUALA LUMPUR MYS 2,499.00 02.09.2020 07.09.2020 BIGPAY MY-ECOM KUALA LUMPUR MYS 2,500.00 [9] All of the above transactions were carried out after the defendant received and entered the OTP ("one-time password") that was sent to the defendant's mobile phone number registered with the plaintiff in the plaintiff’s system. As of 04.03.2024, the defendant was indebted to the plaintiff under the said credit card facility for a total amount of RM26,401.91 as of 04.03.2024. Despite demands and requests made by the plaintiff, the defendant has failed, refused, and/or neglected to pay the outstanding amount or any part thereof. [10] Upon the defendant’s failure, refusal, and/or default in making payments to the plaintiff, the plaintiff, through its solicitors Messrs. Anad & Noraini, via a letter of demand dated 08.03.2024, revoked and terminated the said credit card facility and demanded full settlement of the outstanding debt under the said credit card facility. [11] Subsequently, the defendant, through its solicitors Messrs. Sharif Ridzuan & Co, filed an appearance and a defense in this action. The following are the defendant’s allegations, on or around 02.09.2020: a) The defendant received a phone call requesting the security OTP number from the defendant; b) The defendant received an SMS from Alliance Bank Malaysia Berhad stating that several debit transactions had been made to a BigPay account, which was unknown to and not owned by the defendant; c) The defendant called the plaintiff’s customer service and requested the status of the defendant’s credit card account; and d) The defendant lodged a police report (Report No: Kuantan/017257/20) dated 02.09.2020. [12] Subsequently, the plaintiff investigated the defendant’s report and, via a letter dated 30.10.2020, informed the defendant that the dispute raised was unsuccessful based on the following reasons: a) The OTP security number was sent to the defendant's mobile phone number registered with the plaintiff in the plaintiff’s system at the time of applying for the credit card facility; and b) Therefore, the credit cardholder is responsible and liable for all successful transactions in accordance with the defendant’s personal authentication. [13] The defendant was also advised to appeal within 21 days from the date of the letter dated 30.10.2020 if dissatisfied with the plaintiff’s investigation. The plaintiff’s letter dated 30.10.2020 was not replied to, and the defendant did not raise any disputes regarding the plaintiff’s investigation within the 21-day period provided. Thereafter, the plaintiff also sent a letter dated 24.11.2020 to the defendant, reiterating the plaintiff’s position that all five transactions were linked to the defendant’s mobile phone number registered with the plaintiff at the time of the defendant’s credit card facility application. [14] The plaintiff argues that the defendant’s registered mobile phone number with the plaintiff is the same number to which the OTP was sent, namely 012-9215788. Furthermore, the defendant did not provide any information to the plaintiff regarding whether the defendant had conducted any independent investigation with BigPay and/or mobile service providers to verify whether the alleged unauthorized transactions had occurred. Instead, the defendant remained silent until this claim was filed by the plaintiff. As the defendant continued to fail, refuse, and/or neglect to make payments to the plaintiff, the plaintiff initiated legal proceedings against the defendant to recover the total outstanding debt. Relevant documents [15] The court will refer the following documents as follows: No. Type of documents Enclosure 1 Writ of Summons and Statement of Claim dated 26th March 2024 1 & 2 2 Statement of Defence dated 28th April 2024 6 3 Reply to Statement of Defence dated 16th May 2024 7 4 Notice of Application for summary judgment dated 20th September 2024 16 5 Affidavit in Support sworn by Plaintiff on 20th September 2024 17 6 Affidavit in Reply sworn by Defendant on 17th October 2024 19 7 Affidavit in Support sworn by Plaintiff on 5th November 2024 20 The plaintiff’s application for summary judgment (Enclosure 16) [16] The plaintiff applied an application pursuant to O. 14 r. 1 of the ROC 2012 for judgment to be entered against defendant summarily without having to go for trial. The provisions of O. 14 r. 1 of the ROC 2012 are reproduced hereunder: “(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.” [16] An affidavit of the application for summary judgment is clearly set out under O. 14 r. 2 hereunder: “(1) An application under rule 1 must be supported by an affidavit in Form 13 verifying the facts on which the claim, or the part of a claim, to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part, as the case may be, or no defence except as to the amount of damages claimed.” [17] The plaintiff's application was supported by an affidavit vide enclosure 17, deposed by Ms. Stephanie Anne Abraham described as an individual whom after verifying the facts of the plaintiff's claim stated that she verily believed that the defendant had no defence with merits ('tidak mempunyai sebarang pembelaan bermerit', Enclosure 17, para. 21). [18] According to Rule 14 of the Rules of Court 2012 and in the case of NATIONAL COMPANY FOR FOREIGN TRADE V KAYU RAYA SDN BHD [1984] 1 CLJ (Rep) 283, the court decided as follows: "For the purposes of an application under O14, the preliminary requirements are: a) the defendant must have entered appearance; b) the statement of claim must have been served on the defendant; and c) the affidavit in support of the application must comply with the requirements of r.2 of O.14." [19] Furthermore, in the case of CEMPAKA FINANCE BHD V HO LAI YING & ANOR [2006] 3 CLJ, it was decided that: "[1]... In an application under O.14, the burden is on the plaintiff to establish the following conditions: i) that the defendant must have entered appearance; ii) that the statement of claim must have been served on the defendant; and iii) 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 defense to the claim. Once these conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is well-established (National Company for Foreign Trade v Kayu Raya Sdn Bhd followed)." [20] The plaintiff contends that all preliminary requirements under Rule 14 of the Rules of Court 2012 have been fulfilled, and that the defendant has failed to raise a valid defence or any triable issues in this case. Consequently, this matter is straightforward and can be resolved through a Summary Judgment against the Defendant." Defendant’s submission [21] The plaintiff’s assertion that the defendant has no bona fide defence simply because the defendant did not respond to the plaintiff’s letter is unfounded and without merit. This is because the plaintiff never addressed or investigated the defendant’s report. The only connection is that the defendant’s mobile phone number was registered on the Credit Card Application form. As a result, the OTP would have been sent to that number, indicating that the defendant was the user. [22] The plaintiff’s actions have effectively “victimized” the defendant by placing the financial burden of the online fraud on them. The defendant maintains that, at all relevant times, there was no negligence on their part in using their credit card that would have enabled fraudulent use by a third party. The defendant denies ever disclosing their credit card details, sharing the OTP with any third party, or storing the password alongside the credit card. Consequently, in line with the guidelines established by Bank Negara regarding Credit Cards, it is the plaintiff’s responsibility to prove that the defendant was negligent. [23] The defendant refers to the case of BANK NEGARA MALAYSIA V MOHD ISMAIL ALI JOHOR [1992] 2 CLJ (REP) 186, where the Court stated: "The jurisdiction should only be exercised in very clear cases. (Malayan Insurance (M) Sdn. Bhd. v. Asia Hotel Sdn. Bhd. [1987] CLJ (Rep) 182; Gunung Bayu Sdn. Bhd. v. Syarikat Pembinaan Perlis Sdn. Bhd. [1987] CLJ (Rep) 120). It was held in the well-known House of Lords’ case of Jacobs v. Booth’s Distillery Co. [1901] 85 LT 262 that a complete defence need not be shown. The defence need only show that there is a triable issue or question or that for some other reason there ought to be a trial, and leave to defend ought to be given. In fact, even though the defence is not clearly established, but only a reasonable probability of there being a real defence, leave to defend should be given (Manager v. Cash [1889] 5 TLR 271)." [24] Clearly, in this case, it is not a "straightforward" case to justify easily. The defendant, in their Affidavit in Response, has outlined the plaintiff's responsibility as per the guidelines in Bank Negara Malaysia's Credit Card Guidelines as follows: "15 Liability for Unauthorized Transactions

15.2 An issuer shall not hold a cardholder liable for card-present unauthorized transactions which require PIN verification, unless the issuer can prove that the cardholder has:

acted fraudulently;

delayed in notifying the issuer as soon as reasonably practicable after discovering the loss or unauthorized use of the credit card;

voluntarily disclosed the PIN to another person; or

recorded the PIN on the credit card, or on anything kept in close proximity with the credit card, and could be lost or stolen with the card.” [25] Therefore, the plaintiff cannot evade the burden of proof and must demonstrate the defendant’s negligence during the full trial. Bank Negara Malaysia clearly stipulates that liability can only be imposed on the defendant if the plaintiff provides evidence of negligence. Nevertheless, the plaintiff opts for a cautious approach by simply asserting that the defendant is the individual who used the card. [26] The Court of Appeal in the case of WOOLLEY DEVELOPMENT SDN BHD V MIKIEN SDN BHD [2008] 2 CLJ 303 stated that the party in question must show the Court that they are prima facie entitled to the judgment. The Court said: "[46] The plaintiff in a summary judgment application first needs to establish a prima facie case that 'he is entitled to judgment.' The burden then shifts to the defendant to satisfy the court why judgment should not be given against him …" [27] However, in the present case, the plaintiff refuses to acknowledge the burden of proof required by the Bank Negara Malaysia Guidelines concerning unauthorized transactions. This is not a prima facie case on the plaintiff’s part. The plaintiff repeatedly claims that the defendant failed to respond to the letters in question, and thus argues there is no bona fide defence. This view is clearly erroneous in seeking a summary judgment from the Honorable Court. [28] The Supreme Court decided in the case of MALAYAN INSURANCE SDN BHD V ASIA HOTEL SDN BHD [1987] CLJ REP 182 that: "The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases." [29] The Court of Appeal in the case of UNP PLYWOOD SDN BHD V HSBC BANK MALAYSIA BERHAD [2010] 5 CLJ 177 quoted and elevated the Court of Appeal's decision in the case of NG HEE TONG V PUBLIC BANK BERHAD and the High Court’s decision in the case of SYARIKAT KERJASAMA SERBAGUNA TUNAS MUDA SUNGAI ARA V GHAZALI BIN IBRAHIM [1985] 2 MLJ 225 as follows: "[35] Summary judgment procedure is a procedural device available for prompt and expeditious disposition of an action by a plaintiff or a counterclaim by a defendant, without a trial when there is no dispute as to the fact and law. In Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609, Gopal Sri Ram JCA (as he was then) observed as follows: The effect of Order 14 is to shut the defendant from having his day in the witness box. It is a very special jurisdiction and is only to be invoked in cases where there are no bona fide triable issues. On occasion like this, it is necessary to recall to mind the words of Judges more learned than I upon the subject at hand. [36] … This simply means that it is for the defendant to show on merits, he has a good defence to the claim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable ground of a bona fide defence." [30] In this case, the plaintiff seeks to prematurely close the defendant’s opportunity to defend by citing the defendant's failure to respond to the bank's letters dated 30-10-2020 and 24-11-2020 as evidence of a lack of bona fide defence. This argument is both rigid and unfounded. The defendant clearly has the right for the case to be properly tried and heard before the Honorable Court. Such an approach contradicts established precedents, which support the defendant’s position. This is not a straightforward case, as the plaintiff suggests, but rather a situation that warrants thorough examination. [31] The High Court in the case of PUSTAKA YAKIN PELAJAR SDN BHD V PENERBITAN INSPIRASI SDN BHD [2021] 10 MLJ 79 quoted the case of Bank Negara Malaysia v Mohd Ismail by stating that to determine whether there is an issue to be tried, the court only needs to refer to the defendant’s affidavit and must be satisfied that there is a dispute that is inherently likely, which makes the issue worth being tried: "In an application under O. 14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue. 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 made 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. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O. 14 application." [32] Furthermore, even if the defendant cannot present any triable issue, the application for summary judgment can still be contested if the defendant can demonstrate that there are matters or circumstances that warrant a trial. The plaintiff must provide evidence, as stipulated by the Bank Negara Malaysia guidelines in paragraph 15, to establish that the Defendant was negligent. [33] The defendant succinctly outlines the plaintiff’s claim as follows: i. The plaintiff cannot deny the responsibility and burden of proof to demonstrate the defendant's negligence in managing and using the credit card, in accordance with Bank Negara’s guidelines for establishing liability; ii. The plaintiff cannot rely solely on the credit card application form as proof, as the defendant has consistently acknowledged being the plaintiff's customer and using the service; iii. The plaintiff must prove that the Bank’s investigation goes beyond a mere letter stating that an investigation was conducted and that the defendant was the person using the card, especially given that the defendant had reported to the police that the card was used by a third party without their knowledge of the fraud scheme; and iv. The defendant has a bona fide defence to show that there was no negligence on their part in using the credit card, and the defendant’s prompt actions are consistent with Bank Negara Malaysia’s guidelines, which clearly indicate that liability does not rest with the defendant. Reasons for the decision DEFENDANT'S ACKNOWLEDGEMENT OF APPLYING FOR A CREDIT CARD FACILITY WITH THE PLAINTIFF [34] After carefully reviewing the written submissions of both parties, I find that the defendant has never denied subscribing to the credit card facility application and that the defendant has used and benefited from the credit card facility provided by the plaintiff. [35] In the case of RHB SAKURA MERCHANT BANKERS BHD V TAN SRI DATO’ TING PEK KHIING (NO 1) [2004] 5 MLJ 315, the Court held: "[6] The admissions made by the defendant remain a crucial consideration for the High Court in determining whether the defendant was indebted to the plaintiff, particularly in light of the fact that the defendant now seeks to deny liability to the plaintiff. The defendant's admissions would be sufficient to demonstrate that, under the circumstances, the defendant cannot raise any bona fide dispute to the plaintiff’s claim." [36] Consequently, I find that the plaintiff’s argument is well-founded. The defendant’s acknowledgment of the credit card facility clearly constitutes their agreement to be bound by the terms and conditions of the facility, including the responsibility to repay any amounts owed as reflected in the credit card statement. DEFENDANT'S SIGNATURE ON THE CREDIT CARD APPLICATION FORM AND VISA/MASTERCARD ALLIANCE BANK AGREEMENT [37] The court has carefully considered the facts that there was a defendant’s signature on the credit card application. It is undisputed that the defendant signed the credit card application form, thereby expressly agreeing to be bound by the terms and conditions of the credit card agreement with the plaintiff. By executing the application form, the defendant acknowledged their consent to the terms governing the use of the credit card facility, including the defendant's responsibility for any amounts outstanding under the credit card account. [38] The principle that a party who signs a written agreement is bound by its terms, regardless of whether they have fully understood the document’s contents, is well established in law. In the case POLYGRAM RECORDS SDN BHD V HILLARY ANG & ORS [1994] 3 CLJ 806, the Court decided: “… There is no legal principle stating that if a party does not fully understand certain terms of a contract, the contract may be invalidated. The general principle of law is that a party who signs a written contract is bound by its terms, except in limited cases such as fraud, undue influence, or misrepresentation. This rule is so strict that even if a party has not read the contents of the contract, they are still bound by its terms…” [38] Furthermore, in the case SMALLHOLDERS CORP SDN BHD & ORS V UTUSAN TRANSPORT SDN BHD [1995] 4 MLJ 587, the Court ruled as follows: "[3] When documents containing contractual terms are signed, in the absence of fraud or misrepresentation, the party signing is bound, and it is immaterial whether they have read the document or not. [4] Even if the defendant was unaware of the English language, they would still be bound by the written contract entered into, in the absence of fraud or misrepresentation. [5] No plea of fraud or misrepresentation has been raised, and the respondent is bound by their own admission.” [39] The defendant in the present case has not raised any valid defence, such as fraud, undue influence, or misrepresentation, to challenge the validity of the contract. The defendant has not shown that they were coerced or misled into signing the agreement. In the absence of such claims, it is clear that the defendant is bound by the terms of the agreement. [40] In addition, the plaintiff points to Term 15 of the Agreement, which clearly sets out the consequences of default by the cardholder. Term 15 of the Agreement clearly stipulates that: “15. Kemungkiran

15.1 Pihak bank boleh mengikut budi bicara mutlaknya pada bila-bila masa dengan memberi notis terlebih dahulu tetapi tanpa memberikan sebarang alasan untuk membatalkan, menamatkan balik dan/atau tidak memperbaharui Kad Visa/Mastercard setelah tamat tempoh sah atau menggantung atau menyekat penggunaan Kad Visa/Mastercard oleh ahli kad dan mana-mana Kad Visa/Mastercard Tambahan di bawah Akaun Kad Visa/Mastercard beliau dan semua jumlah wang yang tertunggak kepada pihak bank di bawah Akaun Kad Visa/Mastercard beliau akan menjadi tertunggak dan perlu dibayar dengan segera sepenuhnya apabila berlakunya mana-mana keadaan berikut:

15.1.1 jika ahli kad ingkar dalam pembayaran apa-apa wang yang dijanjikan untuk dibayar mengikut cara yang ditentukan di sini atau gagal untuk membayar mengikut terma-terma di sini..” [41] The plaintiff has presented evidence showing that the defendant has failed to make the required payments on the credit card account, which resulted in the amounts becoming due. Under the terms of the Agreement, the defendant is liable for the outstanding balances, and the plaintiff is entitled to recover these sums. [42] The defendant, by signing the credit card application form and the Agreement, agreed to be bound by the terms governing the credit card usage. The defendant has not raised any sufficient legal grounds to dispute the terms of the Agreement. Therefore, the defendant is legally obligated to fulfil the financial obligations arising from the credit card facility. [43] Based on the above legal principles, the court finds that the defendant is bound by the terms and conditions of the credit card agreement with the plaintiff. The defendant has failed to provide any credible evidence of fraud, misrepresentation, or undue influence. Consequently, the defendant is liable for the amounts owed under the credit card account, and the plaintiff is entitled to recover the outstanding sums as stipulated in the Agreement. ALLEGATION OF FRAUD IN THE USE OF THE CREDIT CARD / RELEVANT TRANSACTIONS [44] I am aware that the defendant, in their defence, alleges that on or around 02.09.2020, they received a phone call requesting the OTP security number associated with their credit card. However, I find that the defendant has failed to provide any credible documentary evidence or other substantiating material to support this claim. There is no proof, such as phone records or any other verifiable documentation, to confirm that such a phone call took place on the stated date. The absence of tangible evidence leaves the defendant's allegation of fraud unsubstantiated, and it must therefore be considered speculative and unsupported. [45] On the other hand, the plaintiff has provided compelling evidence showing that the transactions made through the 'Bigpay' application were completed only after the defendant received and correctly entered the OTP that was sent directly to the defendant’s registered mobile phone number. The court accepts that the OTP was sent to the mobile number that the defendant had provided to the plaintiff at the time of applying for the credit card. This fact is critical as it confirms that the defendant was in control of the mobile number linked to their account during the execution of the transactions. [46] Further, the defendant has not presented any evidence to suggest that the OTP was sent to any incorrect or unauthorized number, nor have they raised any legitimate concerns about the mobile number being in someone else's control at the time of the transactions. The defendant has not provided any valid objection to the assertion that the transactions were initiated and completed by the defendant, using the correct OTP sent to the registered mobile number. Therefore, the plaintiff's position remains unchallenged. [47] Based on the defendant’s failure to provide any credible evidence showing that the OTP was sent to an incorrect number or that there was any fraudulent activity regarding the OTP, I conclude that the defendant's claim of fraud lacks merit. The defendant has failed to substantiate this claim with any tangible or convincing evidence. Consequently, the allegation of fraud is speculative and cannot be accepted. [48] I refer to the case of TAN SEE YIN V NOONE & CO & ANOR [1995] 1 MLJ 705, where the Supreme Court of Kuala Lumpur held: "Thus, we find that none of the above-mentioned paragraphs contain an averment of the essential ingredients of fraud in the sense of Derry v Peek, e.g., a false misrepresentation, although we recognize that the words ‘conspired’ and ‘deceived’ were used. Following the above authorities, we hold that the respondents’ statement of claim does not attract the provision of O 14 r 1(2)(b) of the RHC." [49] The defendant’s reliance on a police report alleging fraudulent use of the credit card at an unknown location is insufficient to support their claims of fraud. The mere filing of a police report, absent any proof of a subsequent investigation or formal action taken by the authorities, does not constitute valid or credible evidence of fraudulent activity. The defendant has failed to provide any concrete or substantive follow-up from law enforcement, and as such, the police report does not strengthen their case. It remains a vague allegation without the necessary corroboration or evidence to support the fraud claim. [50] In stark contrast, the plaintiff has presented a thorough and detailed investigation into the matter. The plaintiff’s internal investigation, as evidenced by the letters dated 30.10.2020 and 24.11.2020, concluded that both the defendant’s credit card and mobile phone were under the defendant’s control at the time the disputed transactions were executed. This investigation was methodical, credible, and well-documented. Based on the evidence provided, I find the plaintiff’s investigation to be reliable and conclusive, and I am satisfied that the transactions in question were legitimate and authorized by the defendant. [51] Furthermore, the plaintiff made clear efforts to resolve the issue by informing the defendant that, should they remain dissatisfied with the outcome of the internal investigation, they could escalate the matter to the Ombudsman for Financial Services (OFS). Despite this option being available, the defendant failed to take the necessary steps to engage the OFS and instead chose to raise allegations of fraud only after the plaintiff initiated legal proceedings. This delay in asserting the fraud claims, coupled with the lack of any supporting evidence, casts significant doubt on the credibility of the defendant’s allegations. The defendant’s failure to act promptly further weakens their case and raises serious concerns about the legitimacy of their defence. [52] The defendant’s assertion that they never received the results of the plaintiff’s investigation is also not credible. The plaintiff provided documentary evidence, including the defendant’s own Affidavit in Response, which confirms that the investigation findings were sent to the defendant’s registered address at B 703, Jalan Beserah, 25300 Alor Akar, Kuantan on 17.10.2024. There has been no reasonable explanation for the defendant’s failure to acknowledge receipt of these findings. The plaintiff’s actions in sending the results to the correct address, as verified by the defendant’s own affidavit, demonstrate that the documents were properly delivered. The defendant’s claim of non-receipt seems to be an attempt to deflect responsibility and lacks any basis in fact or logic. [53] Upon careful consideration of the entire case, I conclude that the defendant has failed to provide any credible evidence to substantiate their allegations of fraud. The defendant’s defence are based on unfounded assumptions and speculative allegations that have not been supported by tangible evidence. In contrast, the plaintiff has presented clear, credible, and persuasive evidence that the transactions were conducted in accordance with the proper protocols and with the defendant’s authorization. [54] In light of the defendant’s failure to substantiate their defence and the thorough investigation conducted by the plaintiff, I find that the defendant’s allegations of fraud are without merit. The plaintiff has successfully demonstrated that the transactions in question were legitimate, and I therefore conclude that the defendant’s fraud claim must be rejected. CERTIFICATE OF INDEBTEDNESS OF THE PLAINTIFF [55] I am aware the fact that the certificate of indebtedness has been issued by the plaintiff towards the defendant. The plaintiff's certificate of indebtedness is issued in accordance with Clause 26 of the Visa/Mastercard Alliance Bank Agreement, which states as follows: "Suatu sijil yang ditandatangani oleh seorang pegawai pihak Bank berkaitan dengan jumlah wang yang tertunggak dan terhutang oleh Ahli Kad kepada pihak Bank pada satu-satu masa tertentu adalah keterangan konklusif atau bukti terhadap Ahli Kad untuk apa jua tujuan sekalipun termasuk untuk tujuan sebarang prosiding undang-undang". [56] As stipulated in the agreement, the plaintiff's certificate of indebtedness holds the status of conclusive evidence for the purposes of these legal proceedings. It is binding and serves as irrefutable proof of the defendant's indebtedness. This certificate has been duly verified by an authorized officer of the plaintiff, and no errors, discrepancies, or defects have been identified. The authenticity and accuracy of the certificate are undisputed. [57] Upholding the principle that a properly executed certificate of indebtedness, when issued in accordance with the terms of the agreement, is conclusive and binding evidence of the debt, I refer to the case of CITIBANK NA V OOI BOON LEONG & ORS [1981] 1 MLJ 282, the Federal Court held that: "[4] In this case, the respondents were bound under the contract of guarantee to accept the certificate of indebtedness duly executed by the Vice-President of the bank as conclusive evidence of the debt due to the bank. On this footing, the bank was entitled to summary judgment." [58] Furthermore, in the case of CEMPAKA FINANCE BHD V HO LAI YING & ANOR [2006] 3 CLJ 544, the Federal Court held that: "[2]... Sijil keberhutangan berfungsi dalam bidang undang-undang ‘adjectival’, sekaligus melepaskan plaintif dari menunjukkan bukti hutang sambil membenarkan beban kes ke atas defendan untuk menyangkal amaun yang dituntut. Dalam kes semasa, per 27 dan 7.03 yang masing-masing berkaitan dengan perjanjian pinjaman dan perjanjian geran ganti alat. Klausa seperti ini adalah diambil sebagai klausa keterangan muktamad, di mana ia telah diputuskan sebagai sah dan mengikat oleh mahkamah-mahkamah di Australia dan England. Sijil keberhutangan yang dikeluarkan mengikut per 27 dan 7.03 adalah cukup jelas.Tiada suatu apa pun yang menunjukkan bahawa telah berlaku suatu kesilapan manifest pada permukaan sijil, atau bahawa satu penipuan telah dilakukan di situ." [59] This case further supports the plaintiff’s position that the certificate of indebtedness, when issued in compliance with the contract, serves as conclusive and binding evidence of the defendant’s debt. The court emphasized that the burden of proof lies with the defendant to challenge the validity of the certificate, which has been properly executed and is free from any apparent errors or fraudulent activity. However, the defendant has failed to provide any such challenge or evidence to dispute its authenticity. [60] In conclusion, the plaintiff’s certificate of indebtedness stands as conclusive proof of the defendant’s outstanding debt, and the defendant has not provided any valid grounds to contest its validity. The legal precedents cited reinforce the principle that such certificates, when properly issued, are irrefutable and enforceable in these proceedings. Conclusion [61] For the reasons adumbrated above, this court allowed enclosure 16 with cost of RM500. DATED: 14th MARCH 2025 (NOR IZZATI BINTI ZAKARIA) Magistrate Magistrates' Court Kuantan, Pahang Counsel: For the plaintiff - Leena A/P Subramaniam from Messrs Anad & Noraini For the defendant – Ahmad Hazwan bin Hamdan from Messrs. Sharif Ridzuan & Co. Legislation(s) referred: ORDER 14 RULE 1 OF THE RULES OF COURT 2012 CLAUSE 26 OF THE VISA/MASTERCARD ALLIANCE BANK AGREEMENT Case(s) referred: 1) NATIONAL COMPANY FOR FOREIGN TRADE V KAYU RAYA SDN BHD [1984] 1 CLJ (Rep) 283; 2) CEMPAKA FINANCE BHD V HO LAI YING & ANOR [2006] 3 CLJ; 3) BANK NEGARA MALAYSIA V MOHD ISMAIL ALI JOHOR [1992] 2 CLJ (REP) 186; 4) WOOLLEY DEVELOPMENT SDN BHD V MIKIEN SDN BHD [2008] 2 CLJ 303; 5) MALAYAN INSURANCE SDN BHD V ASIA HOTEL SDN BHD [1987] CLJ REP 182; 6) UNP PLYWOOD SDN BHD V HSBC BANK MALAYSIA BERHAD [2010] 5 CLJ 177; 7) SYARIKAT KERJASAMA SERBAGUNA TUNAS MUDA SUNGAI ARA V GHAZALI BIN IBRAHIM [1985] 2 MLJ 225; 8) PUSTAKA YAKIN PELAJAR SDN BHD V PENERBITAN INSPIRASI SDN BHD [2021] 10 MLJ 79; 9) RHB SAKURA MERCHANT BANKERS BHD V TAN SRI DATO’ TING PEK KHIING (NO 1) [2004] 5 MLJ 315; 10) POLYGRAM RECORDS SDN BHD V HILLARY ANG & ORS [1994] 3 CLJ 806; 11) SMALLHOLDERS CORP SDN BHD & ORS V UTUSAN TRANSPORT SDN BHD [1995] 4 MLJ 587; 12) TAN SEE YIN V NOONE & CO & ANOR [1995] 1 MLJ 705;and 13) CITIBANK NA V OOI BOON LEONG & ORS [1981] 1 MLJ 282