Bagan Hasrat Sdn. Bhd. v Suresh Kumar A/L Ramachandren (BA-22NCC-50-04/2022)

The Plaintiff’s claims against the Defendant for a friendly loan in the sum of RM1,760,000.00, interest and costs.

The statement of claim only has 9 paragraphs stated about the parties, background facts and prayers/reliefs sought.

On 27-9-2023, I allowed the Plaintiff’s claims with costs (subject to allocator fee) and my grounds of decision (in Bahasa) is as follows: KEPUTUSAN (Selepas perbicaraan penuh)

Tuntutan Plaintif terhadap Defendan ialah untuk Defendan membayar sejumlah RM1,771,572.60, faedah dan kos kepada Plaintif.

Plaintif memplidkan bahawa suatu pinjaman persahabatan berjumlah RM1,760,000.00 ialah pinjaman persahabatan tanpa faedah yang diberi oleh Plaintif kepada Defendan secara 8 kali bayaran pada tarikh-tarikh yang dinyatakan dalam perenggan 4 pernyataan tuntutan. Terdapat pengakuan dan pengesahan hutang oleh Defendan bagi pinjaman persahabatan tersebut.

Defendan membela diri dan memplidkan bahawa Defendan tiada apa-apa hubungan dengan Plaintif; Defendan tidak pernah memohon apa-apa pinjaman persahabatan berjumlah RM1,760,000.00 daripada Plaintif; Plaintif bukanlah syarikat yang diberi kuasa di sisi undang-undang untuk memberi kemudahan pinjaman atau pinjaman persahabatan kepada mana-mana orang.

Plaintif memfailkan 3 isu untuk dibicarakan dan ditentukan oleh Mahkamah ini. Isu Untuk Dibicarakan 1: Sama ada Defendan telah menerima pinjaman persahabatan berjumlah RM1,760,000.00 daripada Plaintif. Isu Untuk Dibicarakan 2: Sama ada Defendan telah menandatangani suatu pengakuan hutang bagi mengesahkan penerimaan pinjaman persahabatan berjumlah RM1,760,000.00 tersebut daripada Plaintif. Isu Untuk Dibicarakan 3: Sama ada terdapat persefahaman bersama antara pihak-pihak bahawa Defendan hendaklah membayar balik sepenuhnya pinjaman persahabatan tersebut pada atau sebelum 01/03/2022 kepada Plaintif.

Dalam perbicaraan, Mahkamah ini telah mendengar keterangan saksi-saksi kedua-dua pihak.

Berdasarkan kepada keterangan yang dikemukakan Defendan menyatakan bahawa – • Defendan ada membuat request melalui Plaintiff’s managing director bagi pinjaman persahabatan berjumlah RM1,760,000.00. Peguam cara Defendan menghujahkan bahawa tiada secebis keterangan mengenai “request: dibuat oleh Defendan dibuktikan oleh Plaintif. • tiada apa-apa pinjaman persahabatan sebagaimana yang dituntut oleh Plaintif. Ini kerana bayaran yang diterima oleh Defendan ialah untuk 5% saham Defendan dalam syarikat KL Larut Sdn Bhd. Ini berdasarkan “profit sharing” dalam perniagaan mereka. • peguam cara Plaintif tidak pernah meminta maklum balas daripada peguam cara Defendan mengenai “arising from their business” dan “details of which are well within your client’s knowledge”. • keterangan SP3 yang hadir di Bank semasa kesemua 8 transaksi bayaran yang kononnya dibayar kepada Defendan.

Berdasarkan penelitian Mahkamah ini selepas meneliti semua dokumen dan keterangan lisan iaitu – Saksi Plaintif: SP1: En Lim Zi Liang, Branch Manager CIMB Jalan Ipoh (saksi sapina). SP2: En. P. Thiagarajan A/L Pavadai, Plaintiff’s Managing Director. SP3: En Sinniah A/L Muthusamy, mantan pekerja Plaintif. Saksi Defendan: SD1: Tn Hj Mohd Zain bin Ghazali (saksi sapina). SD2: En Suresh Kumar A/L Ramachandran. Dan dokumentar yang dibentangkan oleh pihak-pihak di hadapan Mahkamah ini, dan hujahan bertulis (termasuk executive summary of written submission) serta hujahan balasan pihak-pihak, Mahkamah ini mendapati atas imbangan kebarangkalian Plaintif berjaya untuk membuktikan sebahagian sahaja tuntutannya terhadap Defendan.

Oleh yang demikian, atas imbangan kebarangkalian, Mahkamah ini membenarkan tuntutan Plaintif dan selanjutnya adalah diperintahkan bahawa –

Defendan membayar kepada Plaintif jumlah sebanyak RM1,060,000.00.

tiada pengenaan faedah pada kadar 5% ke atas jumlah RM1,060,000.00.

Kos sebanyak RM15,000.00 (tertakluk kepada fi alokatur) dibayar oleh Defendan kepada Plaintif. [4] The Plaintiff and the Defendant appeal to the Court of Appeal. [5] The grounds of judgment for the Defendant’s appeal is done and here, I give my grounds for allowing the Plaintiff’s claims partly. [6] The Notice of Appeal dated 16-10-2023 by the Plaintiff is as follows: NOTICE OF APPEAL Take Notice that Bagan Hasrat Sdn. Bhd. (Company No.:199601004427 (376773- V)), the Appellant/Plaintiff being dissatisfied with the decision of the Judicial Commissioner of the High Court Puan Rozi Binti Bainon, which was given at the Shah Alam High Court on the 27.09.2023 appeals to the Court of Appeal against such part only of the said decision as decides that−

The quantum payable by the Defendant is only of RM1,060,000.00 instead of RM1,771,572.60 which is the principal sum claimed by the Appellant/Plaintiff (the Appellant/Plaintiff says that the Court should have awarded the full quantum of RM1,771,572.60 (as the principal sum) claimed by the Appellant/Plaintiff).

No award of pre-judgment interest (the Appellant/Plaintiff says that the Court should have awarded pre-judgment interest at the rate of 5% p.a. from 02.03.2022 to the date of judgment, which is 27.09.2022; and

No award of post-judgment interest (the Appellant/Plaintiff says that the Court should have awarded post-judgment interest at the rate of 5% p.a. from the date of judgment that is 27.09.2022 to the date of full payment. Background facts [7] The suit before this Court is between the Plaintiff (a private limited company registered as Bagan Hasrat Sdn. Bhd.) and the Defendant (Mr. Suresh Kumar a/l Ramachandran). [8] The Plaintiff pleaded that in or about the first quarter of year 2021, the Defendant had requested for a friendly loan in the sum of RM1,760,000.00. [9] The Plaintiff through its managing director agreed to provide the friendly loan, free of interest to the Defendant. And the disbursement of RM1,760,000.00 is by way of 8 tranches paid to the Defendant. Table 1 in the statement of claim stated the dates of the payments, amount and the payment’s vouchers. [10] The Plaintiff has pleaded that the Defendant signed an acknowledgement of debt and confirmed received the amount of RM1,760,000.00. [11] Therefore, the Plaintiff’s case is for the return of RM1,771,572.60 and this amount is being the total sum owing which includes interest of 5% totaling RM11,572.60. [12] The Plaintiff claims that the Defendant was supposed to repay the loan on 1-3-2022. The Defendant failed and/or neglected and/or refused to repay within the agreed date. [13] In the defence, the Defendant has explained the relationship between the Defendant and the Plaintiff and also the trail for the sum claimed by the Plaintiff as alleged to be the friendly loan. [14] The Defendant pleaded as follows: • Defendan tiada sebarang hubungan dengan Plaintif. • Defendan tidak pernah memohon sebarang pinjaman persahabatan berjumlah RM1,760,000.00 daripada Plaintif. • pada masa material, Plaintif bukan suatu syarikat yang diberi kuasa di bawah undang-undang untuk memberikan kemudahan pinjaman ataupun pinjaman persahabatan kepada mana-mana orang. • secara alternatifnya, Defendan menyatakan bahawa Thiagarajan a/l Pavadai adalah pengarah dan pemegang saham di syarikat-syarikat KL Larut Sdn Bhd, Bagan Hasrat Sdn Bhd, dan KL Larut Holdings Sdn Bhd. KL Larut Sdn Bhd: • sekitar tahun 2010, Thiagarajan a/l Pavadai meminta Defendan untuk membantu KL Larut Sdn Bhd dan Defendan dilantik sebagai konsultan dan mempunyai hubungan perniagaan dengan Thiagarajan a/l Pavadai. • bagi tugas ini, Defendan menyatakan bahawa Thiagarajan a/l Pavadai memberi Defendan sebuah kereta Honda CRV dan membayar RM5000.00 sebulan sebagai elaun. Disamping itu, Thiagarajan a/l Pavadai juga membayar secara periodic kepada Defendan sebagai bayaran hasil keuntungan perkongsian perniagaan mereka bersama. Penafian Defendan mengenai pinjaman persahabatan kepada Plaintif: • sekitar hujung tahun 2021, berlaku perselisihan antara Defendan dan Thiagarajan a/l Pavadai. • akibat daripada itu, Thiagarajan a/l Pavadai menuntut Defendan mengembalikan kereta Honda CRV dan Thiagarajan a/l Pavadai memberhentikan bayaran RM5000.00 sebulan kepada Defendan. • seterusnya, Thiagarajan a/l Pavadai menuduh Defendan – ▪ menghilangkan wang derma kuil sebanyak RM200,000.00 yang didermakan oleh Thiagarajan a/l Pavadai kepada kuil. ▪ meminjam RM200,000.00 yang diderma kepada kuil daripada Thiagarajan a/l Pavadai dan tuduhan/tomahan itu disiarkan dalam akhbar Tamil Malar yang dimiliki dan/atau dikawal oleh Thiagarajan a/l Pavadai. Bagan Hasrat Sdn Bhd (Plaintif): • Thiagarajan a/l Pavadai ialah pengarah urusan dan ‘alter-ego’ kepada Plaintif (Bagan Hasrat Sdn Bhd). • Thiagarajan a/l Pavadai menubuhkan syarikat Bagan Hasrat Sdn Bhd (Plaintif) dan menggunakan anaknya bernama Palaniswaran a/l P. Thiagarajan sebagai pengarah Plaintif. • Defendan memplidkan bahawa Thiagarajan a/l Pavadai dengan niat jahat memperalatkan Plaintif (Bagan Hasrat Sdn Bhd dalam membawa tindakan undang-undang ini terhadap Defendan. The trial Issues to be tried: [15] The Plaintiff and the Defendant filed separately issues to be tried and after reading Enclosure C1 and C2, this Court finds, the issues to be determined are –

whether the Defendant has received RM1,760,000.00 from the Plaintiff as the friendly loan?

whether the Defendant has signed an admission of debt and confirmed receiving the amount RM1,760,000.00 from the Plaintiff as the friendly loan?

whether the Plaintiff can provide friendly loan to any parties?

whether the Defendant has entered into an agreement for the friendly loan? [16] There were 5 witnesses during trial, 3 of whom were the Plaintiff’s witnesses and the other 2 were the Defendant’s witnesses (Defendant and a subpoenaed witness). The application of law to the fact Burden of proof: [17] In Pernec Ebiz Sdn Bhd v. CCI Technology Sdn Bhd & Ors [2015] 2 MLJ 117, the Court of Appeal held − “Even though the burden upon a plaintiff in a civil suit is only to prove its case upon a balance of probabilities, it must present its case sufficiently clearly to do so. It cannot merely file pleadings, file bundles of documents, proceed to trial, call witnesses to testify and argue on the various issue and expect the court to make out the case on its own for one party or other. … Where the party upon whom the burden of proving its case lies fails to do so, it fails to prove its case and its action must be dismissed.”. [18] Lord Goddard in Bonham-Carter v. Hyde Park Hotel Ltd 64 TLR 177 at p. 178 held− “… plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages’. They have to prove it.”. [19] The well-established principle that the burden of proof at all times is borne by the Plaintiff on the balance of probabilities to establish his case against the Defendant or the existence of a legally enforceable claim against the Defendant. It is upon the Plaintiff, and certainly not the Defendant, to discharge that burden. It is for the Plaintiff to prove his case and satisfy the court that his claim is well-founded before the court can grant judgment on his claim. [20] The Court of Appeal in the case of Pioneer Conglomerate Bhd v. Tenggara Kapital Sdn Bhd [2023] 1 LNS 1626 held that “[9] It was common ground that at the Court below, there was only one core issue for determination namely, whether the sum of RM7,000,000.00 was an advancement given to the Respondent or a commission to the Respondent for arranging the shares in Ta Win Holdings Berhad for the Plaintiff. [10] In essence, the case before the trial Court revolved around the issue whether the evidential burden lay upon the Appellant/Plaintiff to satisfy the court on a balance of probabilities that the sum of RM7,000,000.00 was paid to the Respondent as an advancement. It was the Respondent’s position that based on all the evidence adduced at trial, there was not a shred of documentary evidence to prove that the Appellant and Respondent had entered into an agreement for the money to be paid as advancement. Hence, that the LJ had correctly found that the Appellant had never adduced any agreement in respect of any money advanced and that there is no resolution passed by the Appellant’s board of directors approving the advance of that RM7,000,000.00 to the Respondent.”. [21] The learned counsel for the Defendant has cited the laws on the burden of proof in a case is governed by sections 101 and 102 of the Evidence Act 1950. and the cases of MIE-AFA Corporation Sdn. Bhd. v. Razali Mohd Sham & Anor [2023] 1 LNS 1267, the court explained that the burden of proof lies throughout with the party who wishes the Court to belief the facts of their case; and the Federal Court in the case of Keruntum Sdn Bhd v. The Director of Forests and Ors [2017[ 4 CLJ 676 at page 698 held: [78] It is settled law that the burden of proof rests throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof lies, has discharged it, then the evidential burden shifts to the other party.” Therefore, the learned counsel for the Defendant submits that the Plaintiff has the legal burden to proof the following:

the Defendant had sometime in first quarter in 2021 requested for a friendly loan from the Plaintiff for personal contingency to be used in several projects;

The Defendant was a runner cum dispatch with the Plaintiff and was paid RM 2,500.00 a month;

The Plaintiff had given a friendly loan of RM 1,760,000.00 to the Defendant;

The agreed date of repayment of the friendly loan was 1.3.2022; and

The Defendant owes the Plaintiff a sum of RM1,771,572.60; Findings and the decision [22] After the full trial, this Court is satisfied that the Plaintiff has discharged the burden of proof. The Defendant indeed has received monies in the form of loan, by way from “a friend (Plaintiff and/or P. Thiagarajan)” to “a friend (Defendant/Suresh Kumar A/L Ramachandran)”. The sum borrowed is RM1,760,000.00. This Court has allowed the Plaintiff’s claim only for RM1,060,000.00 and the Defendant must return and pay this amount to the Plaintiff. The interest claimed by the Plaintiff is dismissed. [23] Exhibit P2 tendered on 13-7-2023 before this Court is a document stated that loan was taken by the Defendant from CIMB, jalan Ipoh in form of cash withdrawal by P. Thiagarajan. The dates for the cash are as follows: 15-4-2021 Cash RM410,000.00 28-4-2021 Cash RM250,000.00 22-6-2021 Cash-Self @ Home RM200,000.00 27-7-2021 Cash RM200,000.00 28-7-2021 Cash RM200,000.00 30-7-2021 Cash RM200,000.00 3-8-2021 Cash RM100,000.00 5-8-2021 Cash TOTAL: RM1,760,000.00 In P2 also contained a handwritten note as follows: “Friendly loan agreement I Suresh Kumar I/C no 650505 08 5527 address No. 1, Jalan Indah 1/15 Taman Universiti Indah, 43300 Seri Kembangan Selangor Darul Ehsan have taken a friendly loan for personal contingency use in several projects from Bagan Hasrat (M) A/B registration number 19960100427 (376773-V) Lot 2753 Jalan Raja Nong off Jalan Sg. Jati Taman Klang Jaya 41200 Klang, Selangor. We have mutual understanding on the repayments of loan. The amount of loan is the as the above (RM1,760,000.00) taken from CIMB Bank Jalan Ipoh: enclosed together all the payment vouchers signed by me to Bagan Hasrat. Yours faithfully Witness signed signed Suresh Kumar A/L Ramachandren Thiagarajan A/L Pavadai”. [24] Exhibit P3 tendered on 13-7-2023 before this Court is the payment vouchers that refer to the dates of the loan given. [25] SP-1 is an officer of CIMB Branch Manager, Jalan Ipoh. SP-1 is the subpoena witness. In the cross-examination, SP-1 were asked about the purpose of the withdrawal by the Plaintiff, whether there is any approval from Bank Negara Malaysia, and nothing was stated that the withdrawal is for friendly loan. SP-1 has no knowledge whether it was for friendly loan or not. No re-examination for SP-1. [26] The Defendant in his Defence and in his testimony before this Court stated the following:

Defendant has no connection with the Plaintiff and he vehemently denies making any request for any friendly loans or taking any friendly loans from the Plaintiff.

further denies entering into any friendly loan agreement with the Plaintiff.

the Plaintiff is not a company that is licensed to give out loans or friendly loans. The company is in the business of contracting and manufacturing concrete and spunpile.

P.Thiagarajan (SP-2) is a director and shareholder and the alter ego in several companies namely K.L. Larut Sdn. Bhd, Bagan Hasrat Sdn.

SP2 had promised the Defendant 5% of the shares in K.L. Larut Sdn. Bhd. (which is held on trust) and SP2 has been making periodic profit-sharing payments to the Defendant an advisor/consultant for K.L. Larut Sdn. Bhd.

Defendant denied signing the friendly loan agreement and his signature on P2 is forged.

SP-2 (P. Thiagarajan) will from time to time make periodic payments to Defendant being profits from their partnership. [27] The issue that Defendant has no connection with the Plaintiff and he vehemently denies making any request for any friendly loans or taking any friendly loans from the Plaintiff had been rebutted by the Plaintiff. The defence clearly pleaded that the Defendant would from time to time receive periodic payments from SP-2/P. Thiagarajan, so called as their “partnership business”. Exhibit P2 is a supporting document to “tell this Court” that the sum of RM1,760,000.00 is a friendly loan. The Defendant merely denies that his signature was forged. No proof to deny this. [28] The Plaintiff is not a company that is licensed to give out loans or friendly loans, therefore the Defendant pleaded that the friendly loan is illegal. The learned counsel for the Defendant submits that It is settled law that there shall be no interest charged in a friendly loan unless the lender is a licensed money lender and cited the case of Mahmood Bin Ooyub v. Lee Chi Leong [2020] 1 LNS 660, where the Court of Appeal held that agreement for a loan with interest by an unlicensed money lender is unenforceable. [29] The learned counsel for the Defendant further submits that the Plaintiff, which is not a money lending company have pleaded for interest of RM11,572.60, being 5% of the interest p.a. for the sum RM1,760,000.00. Hence the alleged friendly loan is illegal. This Court agree with the Defendant that no interest should be charged. But the sum of RM1,760,000.00 is not illegally taken and received by the Defendant. This huge sum is not be given freely and voluntarily by the Plaintiff to the Defendant. [30] The learned counsel for the Defendant also disputed that the name of the Plaintiff in this Suit is Bagan Hasrat Sdn Bhd and this is not the “real company” given the money. The Defendant received the money from Bagan Hasrat (M) Sdn Bhd. However, I find that in Exhibit P2 itself, the name of the company is Bagan Hasrat (M) Sdn Bhd and Bagan Hasrat Sdn Bhd. And also, the company registration number is correct i.e. 19960100427 (376773-V). [31] It is normal that the Defendant denied the loan and to defend himself by saying that the Plaintiff is a company not to lend money, if it does, it is unlawful and/or illegal. Once the transaction of disbursement/payment made, the so called “borrower” certainly will say it is illegal to give the money to him. [32] The learned counsel for the Defendant submit that since the Plaintiff had failed to produce evidence before this Court to show that the Plaintiff is legally allowed to give loan to the Defendant or to any third parties, the alleged loan transaction is unlawful and/or illegal. To support its contention, the learned counsel for the Defendant submit that the Plaintiff did not produce any company resolutions for the alleged loan that was given to the Defendant. SP2 in his evidence confirmed that there is no company resolution for the alleged loan although the sum involved is over RM1.7 million. [33] I agree with the submission by the learned counsel for the Plaintiff that for a friendly loan, no resolution is required. The former accounts manager of the Plaintiff (SP-3), testified that it was not the practice of the Plaintiff to make resolutions for friendly loans. SP-3 testified – “We have a circumstance in our office when we give loans to our own staff and all we don’t insist on this resolution to be made.”. [34] In Shim Vui Geh v. Dayang Masturah Sahari & Another Appeal [2023] 10 CLJ 733, held (allowing appeal in part) Per Lee Swee Seng JCA delivering the judgment of the court:

The court believed the testimony of the lawyer who prepared the various documents for them to sign when she confirmed that both Dayang and Harun signed the documents in her presence in her legal firm and that she had explained in Bahasa Malaysia the contents of the documents to both of them and that they had understood the contents before they signed the documents. Both Dayang and Harun could not deny that they were bound by what they signed. The question was whether the law would render what they had signed as evidencing an illegal moneylending transaction or that whether the ‘security’ taken was valid under the law. (paras 34 & 39)

Shim and Harun were business partners and they were shareholders and directors in a company. They were clearly not total strangers who only met for the purpose of a loan. Shim had also known of Harun’s father and uncle. Whilst Dayang might not have met or known Shim before the loan transactions, she was clearly introduced to Shim by Harun as Harun had only one piece of land for security of the loan and as he needed to further secure additional loans, he had asked his mother to help. Under the MA, any person who lends money at interest is presumed to be a moneylender and becomes an unlicensed moneylender if he does not have a licence under the MA, rendering the loans unenforceable and irrecoverable. Harun and Dayang had no evidence to offer on any allegations of a system, regularity, pattern or continuity where Shim’s lending was concerned other than to themselves. Thus, the presumption under s. 10OA of the MA had been more than rebutted by Shim. The High Court Judge had erred in finding that the transactions were moneylending transactions when there was no evidence of a system, pattern, regularity or continuity of Shim being involved in any moneylending transactions. (paras 48, 50, 57 & 68).”. [35] The Federal Court in the case of Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd [2023] 10 CLJ 187, held (allowing appeal; setting aside decision of Court of Appeal) Per Abdul Rahman Sebli CJ (Sabah & Sarawak) delivering the judgment of the Court:

By cl. 1 of the loan agreement, the ‘agreed profit’ of RM800,000 to be earned by the respondent was the ‘consideration’ for the RM800,000 loan. Read with cl. 3, this ‘agreed profit’ of RM800,000 was, in fact and as a matter of law, ‘interest’ within the meaning of s. 2 of the Moneylenders Act 1951 (‘Act’), as it was a sum that was ‘in excess of the principal paid or payable to the moneylender’. When the respondent agreed to lend the RM800,000 to the appellants, subject to payment of another RM800,000 as ‘agreed profit’, it was carrying on the business of ‘moneylending’ within the meaning of s. 2 of the Act as it was ‘lending money at interest with or without security’. The ‘consideration’ of RM800,000 payable to the respondent at any time before, or at the expiry of the agreement period of 30 days, was nothing but ‘interest’ at the rate of 100% disguised as agreed profit. By whatsoever label it was given, the RM800,000 was ‘any amount by whatsoever name called in excess of the principal paid or payable to a moneylender’. If a rose by any other name would smell as sweet, a corpse flower by any other name would smell as foul. The trial judge erred in focusing too much on the meaning of ‘moneylender’ without regard to the meaning of ‘moneylending’ and ‘interest’ when the three meanings must be read together and harmoniously. (paras 39-42)

The trial judge failed to direct His Lordship’s mind to s. 10OA of the Act. It is a rebuttable presumption, a legal principle that presumes something to be true unless proven otherwise. Section 10OA of the Act imposed on the respondent the legal, as opposed to evidential, burden of proving, on the balance of probabilities, that it was not carrying on the business of ‘moneylending’ when it lent the RM800,000 to the appellants at a profit of RM800,000. The presumption was that it was carrying on the business of moneylending ‘until the contrary is proved’. In the context of the present case, what it meant was that if no evidence was led by either side, on the question of whether the respondent was carrying on the business of moneylending, the burden of proof would not have been discharged by the respondent. Whether or not the respondent had succeeded in rebutting the statutory presumption, pursuant to s. 10OA of the Act, was essentially a question of fact. The court’s finding must be based on hard evidence and not on conjecture that is unrelated to evidence. The Judges of the Court of Appeal, by agreeing with the trial judge, had not only perpetuated but had also compounded the error committed by the trial judge. (paras 43-46 & 48).”. [36] In the case before me, I agree with the Defendant that the Plaintiff being a private limited company and a separate legal entity is not carrying on the business of moneylending. But the money given by the Plaintiff and taken by the Defendant are there in the documentary evidence and the Plaintiff’s witnesses had showed to the effect that it had given the loan to the Defendant. [37] The Plaintiff did rely on Exhibit P2, the question pertaining to the maker of document has been answered by SP-3 (Mr. Sinniah A/L Muthusamy) who testified that the document was prepared by the late Pathmanathan (he has passed away). The printed phrases were prepared by SP-3 and the handwritten phrases were prepared by the late Pathmanathan. SP-3 also testified that the document was signed in the late Pathmanathan’s house and SP-3 also present. [38] The issue whether the Defendant had signed the document and/or his signature was forged, the burden to prove is in the shoulder of the Defendant. The learned counsel for the Defendant submits that − “In the case of PP V AHMAD NAJIB ARIS (2009) 2 CLJ 800 at page 830, the Federal Court established that held in order for a document which is computer print-out to be admitted as an evidence in court, it shall be accompanied with a certificate under Section 90A(2) of Evidence Act 1950 OR oral evidence to the effect that the document was printed by a computer in its ordinary use shall be given during a proceeding.

In the case before this Honourable Court, NEITHER was there a Section 90(A)(2) certificate tendered, NOR was there any oral evidence given by the Plaintiff’s witnesses as required by Section 90(A) Evidence Act 1950.

It is also trite according to Section 73A of the Evidence Act 1950, the maker of any document must be called as a witness for that document to be admitted as evidence in court.

SP 3 during Examination-in-Chief stated ‘the document was prepared by late Patmanathan’. However, there was no mention of Patmanathan in the pleadings or in SP2’s written witness statement (PSPS2). There is also no evidence of a death certificate of one Patmanathan before this Honourable Court.

Accordingly, with greatest of respect, we humbly submit that the document on page 32 of Part C of the Common Bundle B1 (P2), is a disputed document and has failed page 32 as the friendly loan agreement between the parties. The document which was placed in Part C the requirements under Section 90(A) and Section 73A of the Evidence Act 1950. Hence the document shall not be tendered as Exhibit P2.”. [39] Exhibit P2 has been admitted in this Court and all the questions raised by the learned counsel for the Defendant are just allegations to escape and exit from the obligation to repay the Plaintiff. Not only Exhibit P2 as the sole and material document that I have analysed before concluding that the sum of RM1,760,000.00 was in fact given and/or lent to the Plaintiff. The other documentary evidence i.e. the payment vouchers, the bank officers and SP-3 were the credible witnesses brought by the Plaintiff to prove its claims. [40] Pertaining to the issue raised by the Defendant that “DEFENDANT NOT BOUND TO DO FORENSIC ANALYSIS”, i.e.− “It is our humble submission that there is no requirement for the Defendant to do a forensic investigation on the documents (P2 and P3), as the Plaintiff had withheld the originals. Further, it is humbly submitted that the burden of proving the case is on the Plaintiff throughout the trial. If the Plaintiff fails to discharge its burden, then the Defendant need not adduce any evidence.”, I have decided that Exhibits P2 and P3 were tendered by the Plaintiff, the original documents also been produced. I have examined the documents and satisfied that these documents are cogent evidence that the Plaintiff had given out loans to the Defendant from time to time. [41] The learned counsel for the Plaintiff did cite my decision in Seneba Crystar Sdn Bhd v. Nur Syamiza Zainal & Satu Lagi [2023] 1 LNS 323, where this Court held that – “[43] Mahkamah ini berpendapat bahawa PENEGASAN Plaintif mengenai pemalsuan tandatangan pengarah syarikat Plaintif (SP1) itu dan pemalsuan tandatangan setiausaha syarikat Plaintif yang tidak dipanggil memberi keterangan dan ketiadaan analisis Jabatan Kimia adalah suatu kegagalan besar di pihak Plaintif.”. [42] Even though each case must be differentiated to the facts, I hold firmly on the principle of law that if the Defendant asserts that his signature was forged, then by all means, send the document (marked as P2) to the Chemist Department. There is no need to get the instruction from the Court via the judicial officers on the action to be taken. Both the parties must be ready to proof their case before this Court. [43] The other issues raised by the Defendant pertaining to the “DISCREPANCIES IN THE PAYMENT VOUCHERS”, I have satisfied with the explanation by SP-3 who is ex-employee of the Plaintiff. SP-3 had explained on the 8 pieces of payment vouchers tendered in court (‘P3’) and the documents are not fabricated or manufactured for the purposes of mounting a claim against Defendant. SP3 gave evidence that it was him who had prepared the vouchers. [44] The other issues raised by the Defendant pertaining to the “DISCREPANCY IN THE CHEQUES ISSUED TO P. THIAGARAJAN (SP2)”, I disagree with the learned counsel for the Defendant that “There was no satisfactory explanation from either SP2 or SP3 regarding this serious discrepancy”. [45] For the payments of allowance paid by the Plaintiff to the Defendant, the Defendant’s own witness has testified that there is a clear business relationship between the Defendant and SP2 with regards to the company K.L. Larut Sdn. Bhd. Hj Zain Bin Ghazali (SD1), the Defendant’s subpoenaed witness gave the following testimony: (a) That the Defendant was appointed as K.L. Larut Sdn. Bhd.’s corporate advisor pursuant to a letter issued by K.L. Larut Sdn. Bhd dated 15.11.2015 addressed to Menteri Besar Selangor (Perbadanan)(MBI); (b) That there is a business relationship between SP2 and the Defendant wherein SP2 holds 5% out of his 60% shareholding in K.L. Larut Sdn. Bhd. on trust for the Defendant;

That the profits earned by K.L. Larut for the year 2020 is RM10 Million – RM11 Million. Therefore, the payments from to the Defendant is part of the dividend for the Defendant’s share in the company. [46] SD-1’s evidence said that there is no document to show that the Defendant is the shareholder of the Plaintiff. SD-1 is subpoenaed by the Defendant to seek justice from this Court, as what SD-1 testified – “… I said when I was subpoenaed I thought I was here to give evidence so that justice can be served. So, I am not planning in any way to put Mr Thiagarajan or anybody in trouble. I am just a good Muslim giving real evidence because in Islam very wrong bagi evidence palsu. Satu dosa yang cukup besar and I don’t want to do that. That’s why I am giving evidence based on my truth what I know but the truth and it doesn’t matter whether my evidence that I give will help Mr Suresh or not but I am giving it truth for the Court to try this case, that’s all.”. [47] SD-1 is the shareholder & executive director in K.L Larut Sdn Bhd and his evidence has nothing to do with the loan given to the Defendant by the Plaintiff. His evidence purely on the relationship/business relationship between the Defendant and P. Thiagarajan. SD-1 said that the Defendant and P. Thiagarajan were working together since 2010. Both of them (the Defendant and P. Thiagarajan) were detained by the police pertaining to K.L Larut Sdn Bhd. SD-1 testified that he was aware as the shareholder in K.L Larut Sdn Bhd, the Defendant has received 5% for its shares. [48] In my decision, I have deducted the payments that showed RM2,500.00 as payments for services from SP-2 to the Defendant. The payments to the Defendant should not exclude the loan taken by the Defendant from the Plaintiff. The Defendant has mixed-up the 5% profit payment to the Plaintiff with the loan. [49] When the Defendant was re-examined by its counsel, the Defendant did not know about “asal-usul” the payment in the sum of RM410,000.00 to him. But the Defendant knew it was from P. Thiagarajan. [50] The Defendant did not know the payments to his account and he only knew when he was informed that payment has been done. [51] This Court will not explore on the issue pertaining to declaration to LHDNM on payments received by the Defendant. If the payments received by the Defendant as 5% profit for the Defendant’s shareholding, failure to declare to LHDNM should be taken in another action by LHDNM. [52] In arriving to finding of facts, I have consider the evidences from the Plaintiff’s and the Defendant’s versions. Accordingly, from the evidence, the Plaintiff’s version is more probable than the Defendant’s version. The payment vouchers did corroborate the Plaintiff’s case. Each of the money disbursed to the Defendant is supported with the payment voucher and it is not marked as “profit of 5% shareholding”. [53] The learned counsel for the Plaintiff refers and applies the provision in section 21 of the Evidence Act 1950 that the proof of admission against persons making them and by or on their behalf is relevant and may be proved against the person who makes them. And the learned counsel for the Plaintiff cited the case of Mohd Faris Ismail & Ors v. Fuji Xerox Asia Pacific Pte Ltd [2022] 1 LNS 682, where the in applying the decision to the current case, the learned counsel for the Plaintiff submits that the admission of the debt to the Plaintiff and as such is relevant and admissible by virtue of section 21 of the Evidence Act 1950. [54] The Defendant (Mr Suresh) is not strange in this Court specifically on the duty to prove the case. Once upon a time, the Defendant has brought an action against one company for commission for its service as”land-broker”. In that case, the evidences led by the Mr Suresh be that by the witnesses and the documents were overwhelming and I have allowed Mr. Suresh’s claims. However, in this Suit, Mr Suresh has failed to rebut the Plaintiff claims. [55] This Court has allowed the amount that owed by the Defendant to the Plaintiff is only RM1,060,000.00 and not RM1,771,572.60 “iaitu jumlah prinsipal yang dituntut oleh Perayu/Plaintif (Perayu/Plaintif mengatakan bahawa Mahkamah sepatutnya memberikan kuantum penuh sebanyak RM1,771,572.60 (sebagai jumlah prinsipal) yang dituntut oleh Perayu/Plaintif”. [56] The amount is only RM1,060,000.00 and the proof can be seen from Exhibit P3 i.e. the payment vouchers (please refer to Ikatan Dokumen Bersama/B1) as follows: PAYMENT VOUCHERS No. 9481 (Bundle B1/page 33) 15-4-2021 RM410,000.00 No. 9500 (Bundle B1/page 34) 28-4-2021 RM250,000.00 No. 9339 (Bundle B1/page 35) 22-6-2021 No. 9324 (Bundle B1/page 40) 6-8-2021 TOTAL RM1,060,000.00 [57] This Court had compared and found that the 4 payments were for the Defendant, whilst the other 4 payment vouchers, the name of P. Thiagarajan was written on the payment vouchers i.e. – PAYMENT VOUCHERS No. 9329 (Bundle B1/page 36) 27-7-2021 RM230,000.00 No. 9332 (Bundle B1/page 38) 30-7-2021 No. 9335 (Bundle B1/page 39) 3-8-2021 RM150,000.00 No. 9324 (Bundle B1/page 40) 6-8-2021 TOTAL RM780,000.00 Therefore, it is crystal clear that the amount of RM780,000.00 should not be claimed to/against the Defendant. [58] The interests claimed by the Plaintiff i.e. “faedah pra-penghakiman (Perayu/Plaintif mengatakan bahawa Mahkamah sepatutnya memberikan faedah pre-penghakiman pada kadar 5% p.a. dari 02.03.2022 hingga tarikh penghakiman, iaitu 27.09.2022 ; dan faedah selepas penghakiman (Perayu/Plaintif mengatakan bahawa Mahkamah sepatutnya memberikan faedah selepas penghakiman pada kadar 5% setahun dari tarikh penghakiman iaitu 27.09.2022 hingga tarikh pembayaran penuh.” are dismissed. The word “sepatutnya” or this Court ought to award the interests connotes that it is the Court discretion whether to allow the interests or not. For this type of claim, the friendly loan is based on Exhibit P2 that the amount of loan is RM1,760,000.00. [59] Exhibit P2 is the document and/or agreement and/or admission that the Defendant owed the Plaintiff the sum of RM1,760,000.00, However, based on the payment vouchers, the amount of RM780,000.00 should not be claimed to/against the Defendant. [60] The learned counsel for the Defendant submits and argue that Exhibit P2 was signed in the present of 2 accountants and only Mr. Pathmanathan (the late Mr. Pathmanathan) and the other accountant is unknown. The issue on who present during the signing of P2 is immaterial. The Defendant and P. Thiagarajan had signed P2. [61] The Defendant has lodged the police report pertaining to the existence of the documents in P2 and P3, the immediate action taken by the Defendant did not demonstrates that the Defendant is unaware of the existence of the documents. This Court is opined that as a person who has initiate legal proceeding to fight for his rights, the Defendant certainly can filed a legal action against P. Thiagarajan and/or the accountants and others for fraudulently “prepare” the documents as in Exhibits P2 and P3. Conclusion [62] In view of the foregoing reasons, the documentary and oral evidences before this Court, the friendly loan was given to the Defendant. The Plaintiff has discharged its burden of proof as required under sections 101 and 102 of the Evidence Act 1950. Hence, this action against the Defendant should be allowed with costs and my decisions are that – “Dan dokumentar yang dibentangkan oleh pihak-pihak di hadapan Mahkamah ini, dan hujahan bertulis (termasuk executive summary of written submission) serta hujahan balasan pihak-pihak, Mahkamah ini mendapati atas imbangan kebarangkalian Plaintif berjaya untuk membuktikan sebahagian sahaja tuntutannya terhadap Defendan. Oleh yang demikian, atas imbangan kebarangkalian, Mahkamah ini membenarkan tuntutan Plaintif dan selanjutnya adalah diperintahkan bahawa –

Defendan membayar kepada Plaintif jumlah sebanyak RM1,060,000.00.

tiada pengenaan faedah pada kadar 5% ke atas jumlah RM1,060,000.00.

Kos sebanyak RM15,000.00 (tertakluk kepada fi alokatur) dibayar oleh Defendan kepada Plaintif.”. Dated: 5 December 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner Shah Alam High Court NCvC12 Counsels: For the Plaintiff: Dr. Arun Kasi together with him Nicole Lee Hui Ching Tetuan Arun Kasi & Co., Kuala Lumpur For Defendant: Kumar A/L Thangaraju together with him Vijayaraj Edward Tetuan Kumar Thangaraju & Co., Kuala Lumpur