Ambank (M) Berhad v 1. ) Falcon Energy Group Limited (WA-22NCC-328-08/2017)

1.

PT BAYU MARITIM BERKAH … DEFENDANTS

This case concerns an application by the Plaintiff for summary judgment against the Defendants, as documented in enclosure 19. I heard the application on 12/4/2018 and allowed the Plaintiff’s application. These are the full reasons for my decision.

The Plaintiff is Ambank (M) Berhad (Labuan Offshore Branch). 2

At the request of Excel Marine S.A. (“the Borrower”) and by a Letter of Offer dated 25/9/2012 and Supplemental Letter of Offer dated 3/12/2012 (collectively referred to as “the Letters of Offer”), issued by the Plaintiff and duly accepted by the Borrower, the Plaintiff granted to the Borrower, inter alia, the following facilities:

Term Loan totalling USD3.5 million (“TL Facility”); and

Revolving Credit Facility totalling USD5.00 million (“RC Facility”). The TL and RC Facility shall be collectively referred to as “the

4.

The Plaintiff had duly disbursed the Facilities and the Borrower had duly utilized the same. 3

In breach of its obligations under the Letters of Offer and the Agreements, the Borrower had defaulted in, inter alia, the monthly instalment payments of the TL Facility to the Plaintiff on due dates, despite reminders.

By its letter dated 13/5/2016, the Plaintiff agreed to, inter alia, accede to the requests of the Borrower and the 1st Defendant for indulgence and time subject to the terms and conditions set out therein.

By the terms of the Settlement Letter, the Borrower and the 1st Defendant inter alia agreed by the terms of the Settlement Letter, the Borrower and the 1st Defendant, inter alia, agreed as follows:

the Borrower duly acknowledged its indebtedness to the

interest of the Facilities shall be revised to 2.25% p.a. above the Plaintiff’s US Dollar Costs of Funds on monthly rests from 1.5.2016 to date of full settlement; and

an additional late payment interest of 1.00% p.a. shall be charged on all amounts outstanding. 4

9.

Subsequent to the execution of the Supplemental Facilities Agreement, the 2nd Defendant, PT Bayu Maritim Berkah, an Indonesian company, executed a Deed of Hypothec dated 9/1/2017 in favour of the Plaintiff and also executed an Undertaking Agreement dated 9/1/2017 and a Pernyataan Sanggupan dated 9/1/2017 with the Plaintiff.

In breach of the terms and conditions of, inter alia, the Letters of Offer, the Agreements, the Settlement Letter and the Supplemental Agreements, the Borrower defaulted in repayment of the Facilities to the Plaintiff.

By its letter dated 6/6/2017, the Plaintiff demanded from the Borrower for payment of all amounts due and payable under the Facilities. 5

Despite the said demand, the Borrower has failed, refused and/or neglected to pay the amounts outstanding to the Plaintiff or any part thereof.

By their letter dated 20/6/2017 to the Borrower, the Plaintiff’s solicitors, Messrs Shook Lin & Bok (“SLB”), inter alia, terminated the Facilities and demanded for repayment of all amounts due and owing under the Facilities.

Despite the said demand, the Borrower has failed, refused and/or neglected to pay the outstanding sums due to the Plaintiff or any part thereof.

By their letter dated 12/7/2017 to the 1st Defendant, SLB demanded for payment of all amounts due and owing by the Borrower to the Plaintiff.

By another letter dated 13/7/2017 to the 2nd Defendant, SLB demanded for payment of all amounts due and owing by the Borrower to the Plaintiff. 6

Despite the said demands, the Defendants have failed, refused and/or neglected to pay the outstanding sums due to Plaintiff or any part thereof.

The Plaintiff claimed a sum of USD 5,249,783.15 due and owing as at 8/8/2017 with interest thereon at the rate of 3.25% p. a. above the Plaintiff’s USD Cost of Funds on monthly rests from 1/6/2017 until date of full settlement from the Defendants.

The Plaintiff commenced the action herein and filed for summary judgment against the Defendants. Analysis and findings The law

This is an application for summary judgment under Order 14 of the Rules of Court 2012 (ROC 2012). It is established law that once an Order 14 application is demonstrated to be properly filed, the burden shifts and rests on the Defendant who seeks to resist the application to raise a defence which shows a “ bona fide triable issue”, in the sense of 7 an issue which justifies and warrants the matter to be considered at a full trial.

This is in keeping with the requirements of Order 14 r 3 of the ROC 2012 which provides that unless the Defendant satisfies the Court with respect to the claim, or part of a claim, to which the application relates that :

There is an issue or question in dispute which ought to be tried; or

There ought for some other reason to be a trial of that claim or part thereof,

The Court may give such judgment for the Plaintiff against the Defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.

In the often quoted decision of the former Supreme Court in National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300 it was authoritatively ruled as follows: 8 “ We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the Plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:-

The defendant must have entered an appearance;

(ii) The statement of claim must have been served on the Defendant; and

(iii) The affidavit in support of the application must comply with the requirements of Rule 2 of Order 14. …If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him.”

In this case, the Plaintiff has satisfied these preliminary requirements and this is not disputed by the Defendant. The burden is now firmly on the Defendant to show one or more triable issues that does not justify summary judgment to be entered against the Defendant. If the Defendant can show even one triable issue, this Court will not grant summary judgment. But it has to be a genuine triable issue. As 9 stated by the Federal Court in Voo Min En & Ors v Leong Chung Fatt [1982] 2 MLJ 241, it is not enough for a defendant to raise an issue or any issue. The defendant must instead raise such an issue as would require a trial in order to determine it.

I would also like to refer to the leading judgment of the former Supreme Court on summary judgment applications in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 which held as follows: “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 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.” 10

The issues raised by the Defendants are considered below.

The first issue raised by the 1st Defendant is that the granting of indulgence and time by the Plaintiff to the Borrower and the procuring of the Undertaking and the Letter of Hypothec from the 2nd Defendant would amount to a novation of the Borrower’s debt to the 2nd Defendant as stated in section 63 of the Contracts Act 1950.

Section 63 of the Contracts Act provides that if the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.

This issue is without any substance.

In order to substitute an existing contract with a new contract by way of novation, such intention of the parties and/or the terms must be expressly and unequivocally set out in the contract and the parties must have consented to the same.

Support for the aforesaid proposition may be gathered from the following authorities: 11

Supreme Court, Housing and Development Board v Lee Sem Yoong Sdn Bhd [1987] 2 MLJ 204 at 208: “...Whether or not there is novation of a contract is a question of fact in each case, and the intention to do is a fact which must clearly be proved... We do not think that the learned Judge was right in concluding that there was novation. There might be intention to do so as envisaged at clause 81(ii) of the February 1978 agreement but that would be subject to the conditions stated therein. In the absence of evidence in support thereof, the matter becomes purely academic.”

Kah Seng Construction Sdn Bhd v Selsin Development Sdn Bhd [1997] 1 CLJ Supp 448 at 454, the High Court held that: “Pollock & Mulla in Indian Contract and Specific Relief Acts (10th Edn.) p. 501 sets out the requirements that must be satisfied before a party can successfully show that a contract has been varied pursuant to s. 63, viz: 12

firstly, the variation of the contract may be shown by express agreement; and

secondly, if variation is to come about by a course of conduct, the variation was intended and understood by both parties. The burden is on the plaintiff to establish that the above requirements are fulfilled in order to bring about the operation of the principles of novation. The plaintiff in the instant case has not shown any express agreement on the defendant‟s part to create an obligation to pay certified sums. The plaintiff has also not shown that the defendant intended to create a variation of the contract by its conduct in paying the plaintiff in accordance with the defendant‟s engineer‟s certificates. It is equally plausible that the defendant made periodic payments to the plaintiff as a matter of convenience rather than as the result of some form of binding obligation.”

Sri Datai Engineering Sdn Bhd & 3 Ors v Hong Leong Finance Berhad (Kuala Lumpur High Court Suit No. D1-22- 1263-2008) at paragraph 39 at page 24, it was held that: “39. The Defendants argued that there was no novation in the circumstances of the case as there was no express consent from the 13 Defendant – Ong Siew Keet v Wan Ariff Bin Wan Hamzah [2006] 1 LNS 341. The consent to transfer the excavators to Sarawak is not the consent required for several reasons. First, the parties must unequivocally express in clear terms their consent to novation, to abandon the old contract and substitute with the new. If there was novation, the hire-purchase agreements would be with the government and correspondence would have included the government. In this respect, I agree with the Defendant. There is no novation for the reasons submitted.”

Court of Appeal, MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 at 449, where it was held that: “[69] In order to create a liability vis a vis the consortium or MMCOG specifically, there would need to be an express undertaking of such a liability either by agreement or by novation. There is nothing on the record of the evidence to justify any such finding.”

High Court, Mawar Awal (M) Sdn Bhd v Kepong Management Sdn Bhd v Anor [2005] 6 MLJ 132 at 150. 14

In this case, there is no evidence anywhere that suggests a substitution or extinguishment or alteration of the Borrower’s and/or the 1st Defendant’s obligations to repay the Plaintiff. On the other hand, there is clear evidence that the 1st Defendant is to remain liable to the Plaintiff under the Guarantee despite the time and indulgence granted to the Borrower.

In other words, whilst the Plaintiff and the Borrower had varied the terms of their agreement with each other as evidenced by the Settlement Letter and the Supplemental Facilities Agreement, there is no evidence that there was any intention for the Borrower’s debt to be novated to the 2nd Defendant or for the 1st Defendant to be released from his Guarantee which he executed in favour of the Plaintiff.

The granting of indulgence and time by the Plaintiff to the Borrower does not release the 1st Defendant from his liability under his Guarantee because the 1st Defendant had agreed inter alia in clause 4.2(a) of his Guarantee that his obligations pursuant to the Guarantee shall not be diminished affected or extinguished by the granting of any indulgence, forbearance or extension of time by the Plaintiff or by the making of any 15 amendment or variation to any agreement between the Borrower and the Plaintiff or by anything done or omitted to be done which but for this provision might operate to exonerate the 1st Defendant from his liability under the Guarantee.

Furthermore, in the Guarantee Confirmation Deed signed by the 1st Defendant on the same day as the Supplemental Facilities Agreement was executed, the 1st Defendant had clearly acknowledged its knowledge of the Settlement Letter and the Supplemental Facilities Agreement and consented to them and the 1st Defendant ratified, confirmed and affirmed that its obligations under the Guarantee shall:

remain in full force and effect;

(ii) remain and continue to be legal, valid, perfected, effected and enforceable against it in accordance with its terms; and

(iii) remain and continue to have the priority and ranking it was expressed to have under the Guarantee.

It is clear from the wording of the Guarantee and the Guarantee Confirmation Deed that there was no novation of the Borrower’s debt to the 2nd Defendant and that the 1st Defendant remained liable to the 16 Plaintiff under the Guarantee despite the indulgence and time granted to the Borrower.

The second issue raised by the 1st Defendant is that there was no consideration moving from the Plaintiff to support the Facilities Agreement and therefore the Facilities Agreement is not binding on the 1st Defendant.

This issue is without substance. The Plaintiff granted the Facilities to the Borrower pursuant to the Facilities Agreement. It cannot be said that there was no consideration for the Facilities Agreement.

In any event, the 1st Defendant had agreed in clause 10 of the Guarantee that its obligation thereunder are that of a primary obligor and exist irrespective of any total or partial invalidity, illegality or unenforceability of any agreement between the Plaintiff and the Borrower.

The third issue is that the Plaintiff had discharged the 1st Defendant from all liability under the Guarantee by giving time to the Borrower pursuant to the Settlement Letter and by entering into the 17 Supplemental Facilities Agreement with the Borrower. This is in essence the same as the first issue which I have already held to be without substance.

The fourth issue raised by the 1st Defendant is that there was no consideration moving from the Plaintiff to support the Guarantee. This issue is without substance. The Guarantee of the 1st Defendant was expressly stated as a requirement in the first Letter of Offer to the Borrower dated 25/9/2012 and, in the Guarantee itself, the 1st Defendant had referred to the Facilities granted to the Borrower and stated that “ It is a condition to the availability of the Credit Facilities under the Facilities Agreement that the Guarantor ( the 1st Defendant) enters into this Guarantee. In consideration of the above, we… has (sic) agreed to guarantee the payment and repayment of the Credit Facilities granted to the Borrower including interest and/or commission payable thereon and all other monies covenanted to be paid under and pursuant to the

I find that there is valid consideration for the Guarantee executed by the 1st Defendant. 18

The fifth issue raised by the 1st Defendant is that there was no consideration or past consideration to support the Supplemental Facilities Agreement and the Guarantee Confirmation Deed or it was past consideration.

This issue is without substance. It is an express requirement in the Settlement Letter that the Borrower must procure a Confirmation Deed by the 1st Defendant consenting and approving the variation and amendments made to the then existing facilities and confirming its obligations and liabilities under the Guarantee remain in full force and effect and extend to and continue in effect with respect to and continue to secure the obligations of the Borrower under the Facilities Agreement and the amendment letter.

The 1st Defendant had signed the Settlement Letter and acknowledged that it has duly read the contents of the Settlement Letter and agreed that its obligations under the existing Guarantee shall remain unchanged and will not be released/exonerated in any way whatsoever notwithstanding any variations to the terms and conditions of the Facilities. 19

The Guarantee Confirmation Deed was executed by the 1st Defendant on the same day as the Supplemental Facilities Agreement was executed.

There is clearly valid consideration for the Guarantee Confirmation Deed. In any event, no new obligation was undertaken by the 1st Defendant pursuant to the Guarantee Confirmation Deed. It merely confirmed that the 1st Defendant had consented to the variations entered into between the Plaintiff and the Borrower and that its liability under the Guarantee remained. In any event also, even without the Guarantee Confirmation Deed, the 1st Defendant remained liable under the Guarantee pursuant inter alia to clause 4.2(a) of the Guarantee as stated above and its acknowledgement in the Settlement Letter.

The 1st Defendant also denied that the Borrower was in breach of its agreement with the Plaintiff and denied owing the sum claimed by the Plaintiff.

In denying the debt, the 1st Defendant did not condescend to give any facts as to why the amount is wrong or not due. It is trite law that a general or bare denial does not amount to triable issues. 20

Instead the Defendants had merely denied the claims made by the Plaintiff without condescending upon any cogent facts which negative the existence of the debts. In this regard, we respectfully submit that such general/bare denial by the Defendants does not amount to triable issues:

Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 6 MLJ 673 at 681 to 684, where the High Court held that: “[13] ... The law is trite that it is not sufficient for the defendant to merely deny the debt but he must condescend upon any cogent facts which negative the existence of the debt or which show that the claim is not maintainable on other grounds.” ... [31] The courts should not too readily find triable issues in cases which concern loans to borrowers from banks and other financial institutions. If such institutions are obliged to wait for a lengthy period of many years – that a full trial and appeal process would often entail – in order to recover loans made to borrowers, then commercial investments from such institutions in this country would be adversely affected, not to mention the cash flow problems that they would encounter. It would be 21 prudent for courts, when dealing with applications for summary judgments in such cases, to apply, in appropriate cases, the estoppels and the finality-of-certificate-of-indebtedness principles as set out in 6 and 7 above.”

Chen Heng Ping & Ors v Intradagang Merchant Bankers

(M) Bhd [1995] 2 MLJ 363 at 367, where the Court Of Appeal held as follows: “When an application is made for summary judgment under O 14 supported by an affidavit which goes to show that there is no defence, the defendants must show cause why leave to defend must be given. This means that the defendants must provide answers on oath which constitute evidence that they have a defence which is fit to be tried. Denials in a defence do not constitute evidence. They are challenges to the other side to show proof. In the present case the guarantors do not appear to have appreciated this. Their affidavits merely relied on the defence they pleaded, which consists of bare denials and points of law which they could not sustain.”

In PT Bank Maybank Syariah Indonesia v. Mindo-Trade Sdn Bhd & Ors [2015] 8 MLJ 289 at 304, the High Court held that: 22 “I am satisfied that the issues raised by the defendants in the affidavit filed herein did not pass the test of „triable issues‟ as envisaged by the case law quoted above. The defendants‟ affidavit contained bare averments and denials and did not constitute evidence and do not give rise to triable issues. On the contrary I found that the plaintiff had exhibited sufficient documents as required of it to show that the defendant‟s denial have no basis.”

The 1st Defendant has agreed in clause 17 of the Guarantee that a statement of account in writing or certificate of indebtedness duly certified by any officer of the Plaintiff showing the indebtedness of the Borrower shall be binding and conclusive evidence in all courts of law and elsewhere.

The Plaintiff has exhibited a signed Statement of the Borrower’s indebtedness as at 8/8/2017. It is trite law that such a certificate excuses the Plaintiff from adducing proof of the debt. It shifts the burden onto the defendant to disprove the amount claimed.

Please see Cempaka Finance Bhd v Ho Lai Ying & Kor Toong Khoon [2006] 2 MLJ 685 at 691, where the Federal Court held as follows: 23 “[11] ... A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claim.”

In Citibank N.A. v Ooi Boon Leong & Ors [1981] 1 MLJ 282 at 284, the Federal Court held that where the guarantee contains a clause which enables the bank by producing contains a clause which enables the bank by producing a certificate of indebtedness by its officer to dispense with legal proof of the actual indebtedness of the respondents, such certificate of indebtedness would be the conclusive evidence of the debt due to the bank and on this footing the bank would be entitled to summary judgment.

See also CIMB Islamic Bank Bhd v LCL Corp Bhd & Anor [2012] 3 MLJ 869 at 882, where the High Court held that: “[34] The amount claimed in this application is RM54,442,744.08 as at 18 May

The plaintiff has furnished two documentary proofs ie the statement of account and the certificate of indebtedness to substantiate the said claim. It is a settled law that this court should give effect to such documents which have been agreed by the parties to be conclusive evidence on the defendants‟ indebtedness under the second BBA facility. Since there was no evidence to the contrary before this court to cast doubt on the accuracy of the certificate, 24 this court ruled than the issue raised is with no merit. The legal position of the certificate of indebtedness is well settled in Cempaka Finance Bhd v Ho Lai Yin (trading as KH Trading) [2006] 2 MLJ 686; [2006] 3 CLJ 544.”

I find that the 1st Defendant has not shown that the amount claimed is not due.

Having evaluated the facts arising from and examined the law applicable to this case, I have determined that the 1st Defendant has plainly failed to raise any triable issue or reasonable defence. I also find that all the arguments raised by the 1st Defendant to be at variance with either the clear position in law or the undisputed contemporary documents. I allow the Plaintiff’s application against the 1st Defendant.

I will now deal with the issues raised by the 2nd Defendant which are rather similar to those raised by the 1st Defendant.

The claim against the 2nd Defendant is pursuant to the Undertaking Agreement dated 9/1/2017 and the Pernyataan Sanggupan and the Deed of Hypothec executed by the 2nd Defendant. Pursuant to clause 1.1 of the Undertaking Agreement, the 2nd Defendant promised to the Plaintiff that it shall pay all present and future liabilities including but not 25 limited to any sums ( whether principal, interest, fees, costs and otherwise) that are or at any time due , owing or incurred by the Borrower and/or the 2nd Defendant to the Plaintiff.

Clause 1.1 of the Pernyataan Sanggupan also contains a provision whereby the 2nd Defendant agreed to pay all liabilities of the Borrower to the Plaintiff.

In the Deed of Hypothec, the 2nd Defendant had also agreed to pay to the Plaintiff the liabilities of the Borrower in respect of the facilities granted to the Borrower.

The first issue raised by the 2nd Defendant is that there is no consideration moving from the Plaintiff for the Letter of Undertaking and the Deed of Hypothec over the vessel Bayu Cakrawala dated 9/9/2016.

The 2nd Defendant also alleged that the letter of undertaking was undated and unsigned but the 2nd Defendant exhibited a different document to that exhibited by the Plaintiff. The document exhibited by the Plaintiff was an Undertaking Agreement dated 9/1/2017 which is stated to have been duly executed by the 2nd Defendant. 26

This issue is without substance. The 2nd Defendant did not raise any issue as to the consideration for the Pernyataan Sanggupan. In that document, the 2nd Defendant had agreed to pay the Plaintiff in respect of the Borrower’s liabilities to the Plaintiff. So even if the Undertaking Agreement and the Deed of Hypothec are not supported by consideration, the 2nd Defendant is still liable to the Plaintiff. However, I do not agree that the Undertaking Agreement and/or the Deed of Hypothec are not supported by consideration even though they are admittedly executed after the date of the Supplemental Facilities Agreement. In Bank Muamalat (M) Bhd v Hexagon Holdings Bhd [2015] 7 MLJ 134, the Court held as follows: “ The defendant contended that the guarantees and indemnities executed by the defendant were void as there was no consideration and/or due to past consideration. This was because the guarantees and indemnities were executed after the letter of offer. There were no merits in this line of argument, as there are ample authorities on point to illustrate the validity of these kind of guarantees and indemnities. It had been held in Chong Hin Trading Co Sdn Bhd & Ors v Malayan Banking Bhd [2004] 4 MLJ 453 where the issue pertaining to the date of the letter of guarantee being later than the date of the execution of the agreement, that it did not render the contract of guarantee to be void for past consideration. In Ali @ Abdul Aziz bin Hassan v 27 Perwira Affin Bank Bhd [2007] 4 MLJ 209, the Court of Appeal held that a continuing guarantee is valid for past consideration. In Standard Chartered Bank Malaysia Berhad v Foreswood Industries Sdn Bhd & Anor [2004] MLJU 175; [2004] 6 CLJ 320, the court held that the plea that a guarantee executed after the loan was granted was unenforceable as it was given for past consideration must fail. This type of plea must be rejected, as it did not give rise to bona fide issue, which is required to be tried. Despite the loan was disbursed before the letter of guarantee was executed, the court in the case of Perwira Habib Bank (M) Bhd v Saiyo Sdn Bhd & Ors [1991] 3 CLJ (Rep) 451 held that there was good consideration.”

The second issue raised is that the 2nd Defendant is not party to the Facilities Agreement dated 5/12/2012 and the Guarantee dated 5/12/2012 which were entered into between the Plaintiff and the 1st Defendant and the Borrower.

This issue is without substance. The Plaintiff is not claiming against the 2nd Defendant under the aforesaid documents.

The third issue raised is that there was no consideration moving from the Plaintiff to support the Facilities Agreement dated 5/12/2012 and therefore the Facilities Agreement is not binding on the 2nd Defendant. 28

This issue is without substance. As already stated, the Plaintiff is not claiming against the 2nd Defendant pursuant to the Facilities Agreement.

The fourth issue raised is that the Plaintiff had discharged the 1st Defendant from all liability under the 1st Defendant’s guarantee dated 5/12/2012. This issue has nothing to do with the 2nd Defendant.

The fifth issue is that the Plaintiff has admitted to giving time and indulgence to the Borrower by its letter dated 13/5/2016 but has failed to produce a legally valid document signed by the 2nd Defendant in respect of the debt.

Although the Undertaking Agreement is not actually signed, it is stated that it is properly executed. It is certified by a Notary Public. In any event, the Pernyataan Sanggupan is clearly signed by the 2nd Defendant. The Deed of Hypothec is certified to have been executed by the Pegawai Pembantu, Pendaftaran Dan Baliknama Kapal.

I am of the considered opinion that the 2nd Defendant has not raised any triable issues. Although there does not appear to have been 29 a conclusive evidence clause in the Undertaking Agreement, the Pernyataan Sanggupan and/or the Deed of Hypothec, the 2nd Defendant has not raised any issues as against the Certificate of Indebtedness produced by the Plaintiff. On the contrary, the 2nd Defendant has made part payments to the Plaintiff.

In the circumstances, I find that neither of the Defendants has raised any triable issue for the case to proceed to full trial. Accordingly, I allow the Plaintiff’s application for summary judgment with costs of RM3,000.00 subject to allocator. Wong Chee Lin Judicial Commissioner Kuala Lumpur High Court Dated: 5th April 2018 30 Solicitors for the Plaintiff Lim Pei Hsien Messrs Shook Lin & Bok Advocates & Solicitors 20th Floor, Ambank Group Building 55, Jalan Raja Chulan 50200 Kuala Lumpur Tel : 03-2031 1788 Fax: 03-2031 1775/8/9 Solicitors for the Defendants Vijayam A/L Kunjappa Messrs Vijay & Co Advocates & Solicitors No. 401B, 4th Floor