Content
1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN DAGANG] GUAMAN NO: WA - 22M - 72 - 04/2016 ANTARA BANK PERTANIAN MALAYSIA BERHAD … PLAINTIF
Loading…
Guaman No. WA-22M-72-04/2016
High Court of Malaysia5 Jan 2017
The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.
Citations and treatment detected automatically from later judgments and the authorities this decision relies on.
Later cases and laws citing this decision
Not yet cited by a later decision.
Earlier cases and laws this decision relies on
“inst the 1st defendent. [2] Having considered both applications, this court has allowed both applications with costs. The Salient Facts [3] The plaintiff is a financial institution governed by the Bank Pertanian Act 2007. [4] On 2.3.2011, the plaintiff signed the Al-Bai Bithaman Ajil Agreements (the “Facilities Agreeme”
Auto-detected from judgment text; not a substitute for a citator check.
Content
1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR [BAHAGIAN DAGANG] GUAMAN NO: WA - 22M - 72 - 04/2016 ANTARA BANK PERTANIAN MALAYSIA BERHAD … PLAINTIF
1
NURUL AINI BINTI MOHD TAJUDIN [No. K/P: 821024-11-5100]
2
NURHANA BINTI MOHD TAJUDDIN [No. K/P: 840529-22-5804]
3
MOHD TAJUDDIN BIN MOHD NOOR [No. K/P: 570316-11-5109/5126504] … DEFENDAN-DEFENDAN Grounds of Decision Azizah Nawawi, J: Applications [1] There are two (2) applications before this court:
i
enclosure (4) is an application for summary judgment against the 3rd defendent; and 2
II
(ii) enclosure (21) is an application for summary judgment against the 1st defendent. [2] Having considered both applications, this court has allowed both applications with costs. The Salient Facts [3] The plaintiff is a financial institution governed by the Bank Pertanian Act 2007. [4] On 2.3.2011, the plaintiff signed the Al-Bai Bithaman Ajil Agreements (the “Facilities Agreement”) with Temanse Aquaculture Sdn Bhd (“Temanse”) for a loan of RM13,000,000.00. [6] In consideration of the said loans to Temanse, the defendants have executed the Personal Guarantee and Indemnity dated 2.3.2011 (“Guarantee”) and agree, inter alia, to make payments of the Sale Price and any amount due under the Facilities Agreement. [7]
Preamble
Pursuant to the terms and conditions of the Facilities Agreement, on 15.4.2011, the plaintiff made a disbursement of RM3,530,000.00 to Temanse. [8] Temanse has failed to pay the installments due and payable under the Facilities Agreement and is therefore in breach of the same. 3 Vide its solicitor’s letter dated 6.4.2015, Temanse had terminated the Facilities Agreement with the plaintiff. [9] By its letter dated 17.12.2015, the plaintiff demanded payment of the sum of RM4,098,668.49 (the disbursed sum) as at 31.7.2015 together with ta’widh and other charges. [10] This case was decided after the trial and the decision in GUAMAN NO: 22M - 88 - 06/2015 (“Suit 88”). In Suit 88, Temanse sued the plaintiff bank for a breach of the Facilities Agreement. The plaintiff bank counterclaim against Temanse for a breach of the Faculties Agreement, seeking a refund of the amount disbursed under the Facilities Agreement. [11] This court had dismissed Temanse’s claim and allowed the bank’s counterclaim and had entered judgment against Temanse in sum RM4,098,668.49 being the balance Sale Price due and owing as at 31.7.2015 together with compensation (ta’widh) for late payment. [12] Therefore, this case must be read in the context of the decision in Suit 88. Findings of the Court [13] In an application for summary judgment, this Court is guided by the principles laid down in National Company for Foreign Trade v. 4 Kayu Raya Sdn Bhd [1984] 2 CLJ 220, where it was stated by the Federal Court as follows: "... We think it appropriate to remind ourselves once again that in every application under O. 14, the first considerations are (a) whether the case comes within the order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under O. 14. For the purposes of an application under O. 14, the preliminary requirements:-
i
the statement of claim must have been served on the
II
(ii) the defendant must have entered an appearance;
III
(iii) the affidavit in support of the application must comply with the requirements of r. 2 of the O. ... 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. This burden then shifts to the defendant to satisfy the court why judgment should not be given against him..." [14] In the present case, the Plaintiff had satisfied the preliminary requirements as laid down in the Kayu Raya's case that is: 5
i
the Statement of Claim have been served on been served on the Defendant;
II
(ii) the Defendant has entered appearance; and
III
(iii) the Affidavit in Support is in compliance with O. 14 r. 2 ROC
2012
Therefore, the burden is then shifted to the Defendant to satisfy the court why Judgment should not be entered against them. [15] In Bank Negara Malaysia v Mohd Ismail [1992] 1 CLJ 627 the Supreme Court held that the duty of a Judge does not end as soon as the fact is asserted by one party, or denied or disputed by the other on affidavit. The Judge has a duty to reject such assertion or denial if such assertion or denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or is inherently improbable. The court will have to identify the issues of fact or law and to determine whether they are triable. [16] The 1st and the 3rd defendants have raised several issues pertaining to the Facilities Agreements. These issues are on change of fish species, additional conditions, delay in disbursement, failure to fully disburse the loans under the Facilities Agreement. These issues raised are the same issues raised in Suit 88. In view of this court’s decision in dismissing Temanse’s claim against the bank in Suit 88, 6 then the same issues raised here have been duly decided and are not triable issues. [17] Added to that the plaintiff’s claim is also supported by the Certificate of Indebtedness dated 23.5.2016, and it is provided under section 7.13 of the Guarantee that the said Certificate shall be conclusive. [18] Therefore, pursuant to the case of Chempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685,I am of the considered opinion that the Certificate of Indebtedness is prima facie evidence of the sum owing. The onus then lies with the defendants to disprove the amount claimed, which they failed to do so. In Arab – Malaysian Finance Bhd v Siva Subramaniam Appupillai [1999] 8 CLJ 23, the court said this:- “The appellant had produced a statement of account showing the amount outstanding. In the light of the conclusive evidence clause in the guarantee, it would not be open for the respondent to dispute the amount as stated by the appellant in the final account.” [19] In the present case, the Defendant did not adduce any facts to support its contention. In RHB Bank Bhd v Tan Swee Long Holdings Sdn Bhd & Ors [2008] 10 CLJ 519, the court held it is not enough for the defendants to merely deny the amount owed, “but the defendants must plead any salient and relevant facts which 7 negative the existence of the debt or which show that the claim is not maintainable on other grounds.” [20] In the premise, and based on my reasons enumerated above, I find that the defendant has failed to raise any triable issue and the plaintiff’s applications in enclosure (4) and (21) are allowed with cost. (AZIZAH BINTI HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Appellate and Special Powers Division 2) KUALA LUMPUR Dated: 30 November 2017 For the Plaintiff : Richard Kok and Azlan Abd Hamid Messrs Rhiza & Richard Kuala Lumpur. For the Defendant : Datin Jeyantini Kannaperan and Marina Nasution Messrs Shearn Delamore & Co Kuala Lumpur.
Wrong text, a broken link, out-of-date content, or a removal request — tell us and we'll check it against the official source.