Bathmani A/P Suppiah v Cimb Bank Berhad (WA-12BNCvC-26-02/2024)

In these Grounds of Judgment, the parties shall be referred to as they were in the court below.

On 12.12.2022, the Court of Appeal allowed the Plaintiff’s appeal on liability and the case was remitted to the Sessions Court for damages to be assessed (‘CA Order’).

The hearing on assessment of damages at the Sessions Court was held between 4.8.2023 and 3.11.2023. The learned Sessions Court Judge (‘SCJ’) pronounced the judgment on 31.1.2024.

This Court then heard the following appeals together:

the appeal by the Plaintiff in Appeal No. WA-12BNCvC-26- 02/2024 (‘Appeal No. 26’) against the entire decision of the

allowing the Plaintiff’s claim for general damages in the sum of RM250,000.00 with interest at 5% per annum from the date of filing of the Writ of Summons until full settlement;

(ii) dismissing the Plaintiff’s claim for special damages; and

(iii) ordering costs for the hearing of the assessment of damages in the sum of RM20,000.00 to be paid by the Defendant to the Plaintiff; and

the appeal by the Defendant in Appeal No. WA-12BNCvC- 32-02/2024 (‘Appeal No. 32’) against part of the decision by the SCJ where the Plaintiff’s claim was allowed as stated in subparagraphs (a)(i) and (iii) above.

After having considered the Record of Appeal and the oral and written submissions by the parties, I found that the SCJ had erred when he stated in paragraph 16 of the Grounds of Judgment (‘GoJ’) that the Plaintiff did not file an appeal against the SCJ’s decision in dismissing the Plaintiff’s claim for special damages. Based on the Notice of Appeal dated 7.2.2024, the Plaintiff clearly appealed against the entire decision by the SCJ. Following from the mistaken position taken by the SCJ on this point, he did not provide any grounds for his decision in respect of the claim for special damages. Therefore, the task fell on this Court to evaluate the evidence and submissions of the parties on the same whereupon the Plaintiff’s appeal in relation to special damages was allowed and the Defendant was ordered to pay the sum of RM750,222.45.

This Court also found that there was no appealable error with regards to the SCJ’s decision in awarding the sum of RM250,000.00 in general damages. Further, in view of the limit as to the civil jurisdiction of the Sessions Court as stipulated under paragraph 65(1)(b) of the Subordinate Courts Act 1948 (Revised 1972) [Act 92], this Court ordered that the amount of general damages and special damages to be paid by the Defendant to the Plaintiff shall be limited up to RM1 million. In addition, interest at the rate of 5% per annum on the judgment sum as per paragraph 5 in the CA Order was awarded from the date of the CA Order until the date of full settlement together with costs of RM10,000.00 for both appeals, subject to allocatur.

Dissatisfied, the Defendant appealing against the decision in respect of the award of special damages; that the amount of general damages and special damages to be paid by the Defendant to the Plaintiff shall be limited to RM1 million; and the order as to costs.

I now provide my full reasons for the decision.

In the Amended Statement of Claim (‘SoC’), the Plaintiff pleaded the following.

The Plaintiff is an individual with an address for service at B1616, Menara Megah Condominium, Jalan Kolam Air, Batu 2, Jalan Sultan Azlan Shah, 51200 Kuala Lumpur.

The Defendant is a company incorporated in Malaysia with an address for service at 13th Floor, Menara CIMB, Jalan Stesen Sentral 2, Kuala Lumpur Sentral, 50740 Kuala Lumpur.

The Defendant had merged with Southern Bank Berhad (‘SBB’). SBB in turn had merged with Southern Finance Company Berhad ('SFCB') by way of an order dated 17.3.1999.

In July 1996, the Plaintiff opened Nominee Account No. 090-001- 011321718 with SFCB and was granted a margin facility of RM250,000.00 by way of a letter dated 26.7.1996. As security for the margin facility, the Plaintiff pledged a fixed deposit of RM85,000.00 on 1.8.1996.

On 31.7.1996, the Plaintiff instructed SFCB to redeem nine lots of EMICO shares (‘EMICO shares’) and eight lots of Artwright shares (‘Artwright shares’) belonging to her from MBF Finance Berhad (‘MBFFB’). In the same month, SFCB issued two payments of RM154,759.50 and RM95,240.50 to MBFFB for the EMICO shares and Artwright shares, respectively.

On 10.9.1996, the Plaintiff informed SFCB that she wanted to sell the EMICO shares. SFCB informed the Plaintiff that the shares were in her CDS Account and allowed her to sell the shares.

The Plaintiff then issued instructions to SFCB to sell the shares and a Letter of Undertaking (‘LoU’) was signed before an officer of SFCB. The Plaintiff was later informed that the shares had been sold at a price of RM19.00 per share.

On 9.8.1997, SFCB informed the Plaintiff that her account was in arrears for the sum of RM135,560.11.

On 26.11.1997, SFCB’s solicitors issued a letter of demand to the Plaintiff for the sum of RM141,652.65.

On 20.12.1997, SFCB commenced Ipoh Sessions Court Summons No. 52-1414-97 (‘1997 Suit’) against the Plaintiff and on 5.3.1998, SFCB obtained a judgment in default of appearance (‘JID’) against the Plaintiff for the sum of RM141,652.65. as at 25.11.1997 with interest, penalty interest and costs.

The Plaintiff’s application to set aside the JID was dismissed and her subsequent appeal to the High Court against the dismissal of the application was also dismissed.

SFCB then applied for an adjudicating and receiving order against the Plaintiff through Ipoh High Court Bankruptcy No. 29- 349-98 and obtained the same on 3.6.1999. The Plaintiff contested the bankruptcy proceedings at the High Court and later appealed to the Court of Appeal, but the order was upheld.

A creditor’s meeting with the Official Assignee (‘OA’) was held on 12.8.2010. The Plaintiff attended this meeting and raised several objections. The Plaintiff complained of failures of disclosure committed by SFCB and urged the OA to investigate the same.

Following investigations, on 24.10.2011, the Plaintiff was discharged as a bankrupt by the Director General of Insolvency (‘DGI’).

The Plaintiff then requested for, and was given, the OA’s report dated 3.5.2011 relating to her case and several documents. The Plaintiff alleged that it was through this report and the documents that the Plaintiff discovered that SFCB had defrauded her and acted in breach of its duties as a constructive trustee of her shares and monies.

As regards the purported fraud, the Plaintiff claimed that, in order to conceal and evade liability for its negligence in failing to provide the LoU and allowing the Plaintiff to sell the EMICO shares, SFCB had defrauded the Plaintiff and enriched itself with her assets by, among others, –

obtaining the JID by withholding material information from the court that –

the contra losses in the Plaintiff's margin account was caused by SFCB’s own negligent conduct;

(ii) the Plaintiff had the following assets with the bank which exceeded the value of the sum claimed; No. ASSETS VALUE (RM)

MGSB shares 149,263.50 18.9.1996 2. EMICO shares 169,033.50 10.9.1996 3. Dai Chi shares 274,084.10 19.9.1996 4. Chee Wah and Tai Wah shares 85,000.00 12.9.1996 5. Fixed Deposit (paid by cheque) 85,000.00 1.8.1996 6. Fixed Deposit (transferred from MBFFB) 85,000.00 31.7.1996 7. Cash payment 20,000.00 13.9.1996 8. Cash payment 19,994.00 13.9.1996 9. Cash payment 4,500.00 30.4.1997 891,875.10; and

(iii) the above assets were appropriated by SFCB.

It was further pleaded that SFCB fraudulently appropriated at least RM891,875.10 worth of shares and monies belonging to the Plaintiff, which is far more than RM141,652.65 as per the JID.

By reason of the above, it was the Plaintiff’s case that SFCB was constituted the constructive trustee of the Plaintiff’s assets and was liable to account for the same. The particulars of the constructive trust were, among others, that –

at all material times, SFCB held, and continues to hold, shares worth RM891,869.28 belonging to the Plaintiff and has not accounted for the same; and

after deducting the sum of RM141,652.65 which was due pursuant to the JID, SFCB still holds the Plaintiff’s assets in the value of RM750,222.45.

In the Sessions Court, the Plaintiff claimed against the Defendant for special damages in the sum of RM899,792.03 consisting of –

unauthorised sale of the Plaintiff’s shares amounting to RM678,401.10; and

unauthorised lifting of the Plaintiff’s Fixed Deposit sum and cash amounting to RM221,390.93 As regards subparagraph (b) above, the Plaintiff had also sought for loss of interest in the sum of RM415,467.45, which brings the total amount claimed by the Plaintiff as RM1,315,259.48.

All appeals to the High Court shall be by way of re-hearing (see O. 55, r. 2 of the RC 2012 and s 29 of the Courts of Judicature Act 1964 (Revised 1972) [Act 91]).

In Muhammad Shahir Bin Khalid And 2 Ors. v Ko Kang Min & Anor [2025] AMEJ 1247, this Court set out the law on appellate interference in these words: “[31] In Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd [2017] 5 CLJ 58, the Court of Appeal illuminated on the occasions when appellate interference is warranted in the following passage from the judgment: “[20] … these occasions have been well set out in numerous cases. Some of these occasions are:

where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509);

where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn

where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1);

where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87);

where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97);

where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe &

where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ 149).”. [32] In Zone Nine Sdn Bhd (previously known as GBH Ceramics Sdn Bhd) v Kien Wai Plumbing Construction [2024] MLJU 2399, I had referred to two judgments of the apex court which had enlightened on the legal principles of appellate intervention as follows: “[24] The learned counsel for the Defendant, Mr. Jeffry Wong cited the decision of the Federal Court in Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 for the central feature of appellate intervention, which is to determine whether the trial court had arrived at its finding correctly on the basis of the relevant law and established evidence. A decision by the trial court which was arrived at without judicial appreciation of the evidence may be set aside on appeal. In determining whether the trial judge’s appreciation of the evidence is sufficient or otherwise, the process of evaluation of the evidence by the trial judge i.e. the assessment of the evidence, the weight that was given to the evidence and the reasons for accepting or rejecting the whole or any part of the evidence, must be examined. … [26] Gan Yook Chin’s case was among the many case authorities discussed in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC). It is settled law that an appellate court will not intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. If, in arriving at the decision, it could not reasonably be explained or justified and the decision of the trial court is one which no reasonable judge could have reached, the decision is susceptible to appellate intervention. The plainly wrong test is not intended to be used by the appellate court as a means to substitute its own decision for that of the trial court on the facts [see pp 81 - 96 of the law report, especially paragraphs 62 - 78; see too, among others, Azman bin Mahmood & Anor v SJ Securities Sdn Bhd [2012] 6 MLJ 1 (FC, at paragraphs 24 and 25, p 12), Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (FC, at paragraph 60, p 464) and MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA, at paragraph 17, p 437)].”.

As these appeals emanate from the SCJ’s decision in the hearing on assessment of damages, it would be apt for me to refer to the legal principles as I had stated in Sensation Network Sdn Bhd v Hong Leong Bank Bhd [2025] MLJU 3204 as follows: “In Dato’ Sri Andrew Kam Tai Yeow v Raub Oil Mill Sdn Bhd [2025] MLJU 2541, I had occasion to consider an appeal which was similarly against the decision of the SCJ for assessment of damages and I had summarised the legal principles in this manner: “12. …

the plaintiff bears the burden of proving the fact and the amount of damages. If the plaintiff succeeds in proving the fact of damage but not its amount, he would be entitled to an award of nominal damages only (see Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99);

the court should award fair compensation based on cogent evidence and should not descend into a domain of speculation (see Inas Faiqah Bt Mohd Helmi (An Infant Suing Through Her Father And Next Friend, Mohd Helmi Bin Abdul Aziz) v Kerajaan

a court in assessing the quantum of damages to be awarded exercises discretionary jurisdiction. It is mainly a matter of opinion or of impression that differences of assessment are to be expected. The quantification of damages cannot be assessed with precision or mathematical certainty (see Amar Singh v Chin Kiew [1960] 1 MLJ 77 and Majlis Amanah Rakyat & Muhamad Ismail v Mat Nawi Awang [2017] 1 MLJ 500);

to justify reversing the findings of the trial judge on the amount of damages, the appellate court should be convinced that the judge acted on some wrong principle of law or that the amount awarded was so extremely high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled (see Flint v Lovell [1935] 1 KB 354, Topaiwah v Salleh [1968] 1 MLJ 284 and Voo Nyuk Fah & Anor v Lam Yat Kheong & Anor [2012] 5 CLJ 229); and

the court should not be inclined to reverse the finding of the trial judge as to the amount of damages. The findings of the trial judge should not be reversed merely because the appellate court might be of the opinion that if it had tried the case at first instance, a lesser sum would have been awarded (see Goo Sing Kar v Dato Lim Ah Chap & Ors [2013] 3 MLJ 374).”.

To this, I would add the authorities cited by the Defendant for the following propositions:

the court’s power to award and to assess damages is a discretionary one. This discretionary power must be judicially exercised by the court. In assessing the damages to be awarded, the quantum should as nearly as possible be sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation (see Lim Chong Yean v Koperasi

in a claim for damages, there must be a causal link between the injunction and the damages suffered by the defendant (see Jeffery Law Siew Su & Ors v Tu Gui [2017] 3 MLJ 1).”.

As the CA Order had stated that “rayuan Perayu dibenarkan berkenaan liabiliti berdasarkan kausa tindakan kecuaian dan pecah amanah”, the Defendant had correctly submitted that this Court must assess the damages based on the tort of negligence and breach of trust.

Based on the decision in Subramaniam A/L Paramasivam & Ors v Malaysian Airlines System Bhd [2002] 1 MLJ 45, the learned counsel for the Defendant further submitted that –

the formula to assess damages based in tort is premised on the principle that –

a sum of money which will restore the Plaintiff in the same position as though there was no tortious wrong; and

(ii) the Plaintiff is not allowed to profit from the Defendant’s tortious wrong; and

the principle on assessment of damages for breach of trust is that a trustee in breach of trust must restore or pay to the trust estate either the assets which have been lost to the estate by reason of the breach or compensation for such loss (see Target Holdings Ltd v Redferns (a firm) and Another [1996] AC 42).

In determining all the grounds of appeal in the instant appeal, I was guided by the abovementioned legal principles.

In the Amended Memorandum of Appeal dated 10.5.2024 for Appeal No. 26, the Plaintiff submitted four grounds of appeal as follows:

the SCJ had erred in law and fact in dismissing the following claims:

special damages in the sum of RM898,373.53;

(ii) the loss of Fixed Deposits in the sum of RM176,398.43 that was used by the Defendant without the Plaintiff’s consent; and

(iii) the loss of interest in the sum of RM415,467.45 from the time the Fixed Deposits that were used by the Defendant without the Plaintiff’s consent between 1996 – 1997 until 26.12.2023 and continuing;

the SCJ had erred in law and fact when he quantified general damages to be in the sum of RM250,000.00, which sum is disproportionate to the pain and suffering endured by the Plaintiff as a result of the Defendant’s conduct;

the SCJ had erred when he stated in the GoJ that the Plaintiff did not file an appeal against his decision in dismissing the Plaintiff’s claim for special damages; and

there is a distinct difference in the method of computation of interest in the Brief GoJ issued on 31.1.2024 and the GoJ, which makes the decision of the SCJ an appealable error. As alluded to earlier, the ground of appeal in subparagraph (c) above was answered in the affirmative by this Court.

The grounds of appeal in the Defendant’s Memorandum of Appeal dated 12.5.2024 for Appeal No. 32 are that the SCJ had erred in law and fact –

in awarding general damages in the sum of RM 250,000.00 to the Plaintiff, which is excessive;

when he considered the Plaintiff’s bankruptcy in awarding general damages whereas the bankruptcy was based on the JID which was never set aside by any court and in the Plaintiff’s pleadings, she never disputed the amount as per the JID;

when he made certain findings regarding the Defendant’s purported negligence whereas his task was not to determine liability but rather to assess the Plaintiff’s losses after the issue on liability was decided by the Court of

when he failed to consider or rejected the evidence of the Defendant’s witness during the assessment of damages which proves that the Plaintiff did not suffer any losses; and

when he considered other factors than what was alleged by the Plaintiff in her evidence that she suffered humiliation at being a bankrupt.

Each of the main grounds of appeal as outlined above will be discussed in turn below. 1st Ground: Whether the SCJ had erred in law and fact in dismissing the Plaintiff’s claim for special damages

Firstly, in the answer to Question 37 in the Plaintiff’s Witness Statement, she sought an amount of RM415,467.75 as her “loss of interest”. However, in view of the Plaintiff’s pleadings in the SoC, it was my finding that the Plaintiff is not entitled to seek this amount for interest on the FD/ Cash Deposit for the period from 1996 to 2023 as it was not pleaded.

Secondly, as regards the Defendant’s contention that in the SoC, the Plaintiff pleaded that she lost her “MGSB shares” (see item no. 1 in the table under paragraph 12(i) of the SoC), which are not MSGB shares, I accepted the Plaintiff’s explanation that it was a typographical error. Furthermore, the Defendant should not be allowed to take advantage of this error when throughout the hearing, the parties clearly intended to refer to the MSGB shares. Even the Defendant’s counsel had mistakenly referred to MSGB as MGSB shares and he did not put to the Plaintiff that MSGB and MGSB were two different shares.

Thirdly, the Defendant argued that the sum of RM891,875.10 and its particulars as pleaded by the Plaintiff was derived from a document titled “Malaysia Department of Insolvency - Laporan Siasatan”, which is a forged document as per the evidence of the Director of Investigation of the Department of Insolvency during the trial on liability. However, as submitted by Mr. Ravi Nekoo for the Plaintiff, the said investigation report was not referred by the Plaintiff at the hearing of the assessment of damages to support her claim.

In paragraph 13(d) of the SoC, the Plaintiff prayed for an order that the Defendant pays the Plaintiff the sum of RM750,222.45 being the amount which the Defendant was alleged to be holding as a constructive trustee of the Plaintiff’s assets as listed in paragraph 12(i) of the SoC. After having reviewed the Record of Appeal and submissions of the parties, it was my finding that the SCJ had erred in dismissing the Plaintiff’s claim for special damages. Based on the evidence adduced at the hearing, the Plaintiff has established her claim on a balance of probabilities.

As regards the amount of the claim, it was observed that the sum of RM891,875.10 was pleaded in respect of the relief for an order for account of assets while in the submissions before this Court, the Plaintiff prayed for the sum of RM899,792.03 as special damages. In my opinion, the Plaintiff must be bound by her pleadings. Therefore, the sum allowed as special damages was limited to RM750,222.45 as prayed in paragraph 14(d) of the SoC.

My reasons in arriving at the said findings and conclusions are elaborated below.

The details as to the losses claimed by the Plaintiff as a result of the Defendant’s negligence was summarised in the “Amended Summary Of Losses” (encl. 31), which is re-produced below for ease of reference: A. The shares which the Plaintiff had transferred to the Defendant SHARES TRANSFERRED BY THE PLAINTIFF TO THE DEFENDANT DATE OF TRANSFER PAGE NO. IN THE CORE BUNDLE OF DOCUMENTS (‘CBOD’)

20,000 – MSGB shares

17.9.1996 176 2. 9,000 – EMICO shares

10.9.1996 177 3. 28,000 – Dai Chi shares

18.9.1996 178 4. 5,000 – Chee Wah and Tai Wah shares 12.9.1996 179 B. The fixed deposit and cash sum which were kept In the Plaintiff’s bank account as collateral by the Defendant FIXED DEPOSIT/ CASH PAYMENT (RM) PAGE NO. IN THE

Fixed Deposit 31.7.1996 85,000.00 182 9.8.1997 91,398.43 183 & 184 2. Cash payments 13.9.1997 20,000.00 185 13.9.1997 19,994.00

30.4.1997 4,998.50 221,390.93 C. The negligent sale of the shares SHARES WHICH WERE SOLD AND CASH DEPOSIT BELONGING TO THE PLAINTIFF WHICH WAS UPLIFTED PAGE NO. IN THE CBOD SHARES BELONGING TO THE PLAINTIFF

20000 lots of MSGB shares 74,518.50 149,263.50 24.9.1996 224 74,745.00 2. 9000 lots of EMICO shares 169,033.50 10.9.1996 224 3. 28,000 lots of Dai Chi shares 19,363.80 274,604.10 24.9.1996 224 19,602.00 29,403.00 29,403.00 19,602.00 39,204.00 58,923.30 49,252.50 9,850.50 4. Chee Wah and Tai Wah shares 85,500.00 3.9.1997 179 -180 RM678,401.10 FIXED DEPOSIT AND CASH DEPOSITS BELONGING TO THE

Fixed deposit (paid by cheque) 91,398.43

March 1997 183 - 185 Fixed Deposit (transferred from MBFFB with interest) 85,000.00 31.7.1996 181 & 182 (in paragraph 9 of the Defendant’s Statement of Claim in the 1997 Suit at p 191 CBoD it was pleaded that “…

Cash payment 20,000.00 13.9.1996 185 & 186

Cash payment 19,994.00 13.9.1996 185 & 186

Cash payment 4,998.50 30.4.1997 185 & 186 221,390.93 D. The total losses claimed by the Plaintiff at the Sessions

Negligent sale of shares 678,401.10 2. Negligent upliftment of FD/cash sum 221,390.93 899,792.03 E. The total losses with interest as at 2023

Total losses 899,792.03 2. Loss of Interest on FD/cash (1996 to 2023 and continuing) 415,467.45 1,315,259.48

After having carefully scrutinised the Record of Appeal containing the oral and documentary evidence and submissions by the parties at the court below and taking into consideration the parties’ submissions in this Court, I was convinced that the Plaintiff had established her version of the facts and events and her claim for special damages.

The Plaintiff’s application for a revolving share financing facility (revolving credit or ‘RC’) in the sum of RM250,000.00 from SFCB, which was subsequently taken over by the Defendant, was approved on 26.7.1996. The purpose of the RC was to finance the Plaintiff’s share trading.

Subsequently, the Defendant claimed that the Plaintiff had used the entire RM250,000.00. The Defendant then proposed to increase the Plaintiff’s RC facility to RM350,000.00. The Defendant called this a “marriage deal”.

However, the Plaintiff did not want the “marriage deal” as the Plaintiff had transferred several lots of her shares to the Defendant as set out in Table A above and had deposited a total sum of RM221,390.93 in the form of fixed deposit and cash payments with the Defendant as collateral (see Table B above). The Plaintiff was of the view that she did not need to increase her RC facility from RM250,000.00 to RM350,000.00.

As the Plaintiff did not want the “marriage deal”, the Defendant pursued to recover, what was termed as the “losses” caused by the Plaintiff. The Defendant sold all the Plaintiff’s shares and then uplifted the fixed deposit and cash sum of RM221,390.33 as shown in Table C above.

The Defendant then commenced the 1997 Suit and took JID on 5.3.1998 followed by bankruptcy proceedings and eventually adjudicated the Plaintiff a bankrupt for the sum of RM154,776.29 on 3.6.1999.

The Defendant was negligent when it paid MBf Northern Securities (‘Northern Securities’) RM250,000.00 without a LoU from Northern Securities that Northern Securities will transfer the shares to the Defendant. In the Defendant’s letter dated 4.4.2001 to Bank Negara (‘BN Letter’), the Defendant admitted that: “5. Upon granting RC facilities to the Complainant in July 1996, the Bank had issued 2 payments of RM154,759.50 and RM95,240.50 to MBf Northern Securities Sdn Bhd as a settlement for 9 lots of Emico shares and 8 lots of Artwright shares respectively. However, due to a branch oversight the payment was made without a Letter of Undertaking from MBf Northern Securities Sdn Bhd. ”.

This shows that the Defendant had known of the “oversight” as early as July 1996 but despite that, the Defendant still proceeded to commence the 1997 Suit against the Plaintiff and went all the way to declare the Plaintiff a bankrupt.

The second negligent act by the Defendant began on 10.9.1996 when the Plaintiff had instructed the Defendant to sell 9000 lots of EMICO shares. When this instruction was given by the Plaintiff to the Defendant, the Plaintiff had signed the “Securities Transfer Request” transferring the EMICO shares into the CDS nominee account managed by the Defendant and the Plaintiff had paid the transfer fee to SFCB and this document was witnessed by the SFCB clerk and received by SFCB. As far as the Plaintiff was concerned, the Defendant had already taken possession of the EMICO shares.

The Defendant then proceeded to sell 9,000 lots of EMICO shares at RM19.10 each lot for RM169,033.50. However, unknown to the Plaintiff, despite the Plaintiff having signed the “Securities Transfer Request”, SFCB had not transferred the EMICO shares of the Plaintiff into the Plaintiff's CDS nominee account. The Plaintiff only came to know about this fact through the documents given to the Plaintiff by the DGI pursuant to the investigation as mentioned earlier. One of the documents was an internal Memorandum dated 22.8.1997 issued by Kushwant Singh, an officer of SFCB to the Manager (‘Kushwant’s Memo’) wherein he explained, among others, that: “Due to the urgency involved in the settlement of the above purchases, I had forgotten to prepare the necessary undertaking letters for the settlement of the contracts which I had previously done. Upon payment to MBf Northern Securities for the settlement of 9 Lots of EMICO, I was given a Security Transfer Form which was executed by the Borrower. I later forwarded payment to MBf Finance Berhad for the settlement of 8000 Lots of ARTWRIGHT and I was also given a Security Transfer Form which was executed by the Borrower. Since the SFCB Margin CDS’ Account was not opened at the this point, I was unable to deposit the said shares in to our CDS Account and this transfer forms were left in the file pocket. The signatories to the CDS Account are all CHQ staff and the account opening forms were sent to CHQ for execution and the account was only opened on 15th August, 1996. As I was busy with other matters during this month and I was going away on exam leave, I over looked this transfer forms until we discovered on 11th September

The borrower [sic: the Plaintiff] called on 10th September 1996 and informed us that she wanted to dispose her 9 Lots of EMICO shares in her SFCB Margin Account. As I was on leave during this time, the branch had informed the Borrower that these shares are in her account and allowed her to transfer 20 lots of MAH SING shares into SFCB Margin Account in exchange of the sales proceeds from 9 lots of EMICO shares. Then on 11th September 1996, SBB Securities informed us that these shares are not in her account and then we discovered that the transfer forms were still being kept in the file pocket and these were deposited with SBB Securities on the same day itself. We later discovered that both counters EMICO and ARTWRIGHT has been sold in her personal CDS Accounts.”.

Clearly, Kushwant Singh admitted that due to the Defendant’s oversight, the EMICO shares were not transferred to the Plaintiff's CDS nominee account but yet the Defendant had sold the EMICO shares. Simply put, unknown to the Plaintiff, when the Defendant sold the EMICO shares on 10.9.1996, the Defendant was actually not in the possession of the shares. Since the Defendant had sold something which was not in its possession, it now had to buy the EMICO shares back.

The Defendant was forced to buy back the EMICO shares at RM28.00 each share and it had to pay RM254,772.00, thus incurring losses of RM85,738.50 (RM254,772.00 - RM169,033.50). This was admitted by the Defendant in the BN Letter viz: “6. As a consequence of this oversight a CDS account was not opened with SBB Securities Sdn. Bhd. Without realising this, the Branch allowed the Complainant to sell 9 lots of Emico shares on 10 September 1996. A CDS account was only opened on 15 August 1997. To rectify this situation the Branch had to buy back 9 lots of Emico shares at a prevailing higher price which incurred a contra loss of RM85,738.50 to the Bank.” (The CDS Account was actually opened on 15.8.1996 - see p 229, CBOD).

The Defendant had to recover the losses and thus, around July - September 1996, the Defendant made the Plaintiff liable for the following sums: DETAILS USED BY THE DEFENDANT FROM RC (RM)

Money paid to Northen Securities to redeem EMICO shares on 31.7.1996 (which was not redeemed because no LoU was given) 154,759.50 see paragraph 2 in the internal memo from SFCB’s Branch Manager to the AGM, CHQ Operations dated 3.12.1997 at p 179, CBOD

Money paid to Northen Securities to redeem Artwright shares on 31.7.1996 (which was not redeemed because no LoU was given) 95,240.50 3. Contra losses due to selling of EMICO shares which were not in the Defendant’s possession 85,738.50 see paragraph 5 in BN’s Letter at p 220, CBOD TOTAL LOSSES 335,738.50

The Defendant knew that the Plaintiff’s RC share trading account of RM250,000.00 was already used up. Therefore, the Defendant proposed to increase the RC share margin account of the Plaintiff from RM250,000.00 to RM350,000.00 as seen in the BN Letter: “7. As a rectification to the Share Margin Financing Account, the Complainant had agreed with the Branch’s proposal on a “marriage deal” between the Complainant’s SBB Securities Margin Account to the Bank’s SBB Securities Margin Account by allowing a temporary increase of trading limit toRM350,000.00 with the conditions as below: …”.

However, as alluded to earlier, the Plaintiff did not want the “marriage deal”. The letter dated 12.9.1996 from SFCB to SBB Securities Sdn Bhd (‘SBBS’) shows that the Plaintiff’s trading limit was amended to RM350,000.00 as at even date. The Plaintiff was not aware of this increase, let alone had agreed to the same.

In a nutshell, the Defendant had caused the Plaintiff’s account to be in the “red”. The Defendant had to do something to recover the losses. So, the Defendant resorted to selling the shares in Table C above to recover the losses. However, the sale of the shares was not enough to cover the losses. The Defendant then resorted to uplift the fixed deposits and cash deposits owned by the Plaintiff as shown in the same Table. This was still not enough to recover the losses. The Defendant then sued the Plaintiff and adjudicated her a bankrupt.

I will now deal with the Defendant’s specific submissions as follows:

That it was the Plaintiff who had instructed SBBS directly to sell the shares and therefore incurred losses. During the hearing of the assessment of damages, Lim Chew Liang, Assistant Vice President from the Secured Collection and Recovery Department (DW1) gave evidence for the Defendant. DW1 testified that it was the Plaintiff who had instructed SBBS to sell the shares. The application form for opening the share trading account known as the CDS Account was in the name of SFCB. When Malaysian Central Depository Sdn Bhd approved the opening of the account, it had sent a letter dated 15.8.1996 to SFCB stating that “We are pleased to advise that your application for CDS Account has been approved through your Authorised Depository Agent (ADA) : 090-001 SBB SECURITIES SDN BHD”. When the shares were transferred into the CDS Account, the Malaysian Central Depository Sdn Bhd sent a letter dated 18.9.1996 to SFCB which stated that “This is to advise that the following stocks have been transferred into your account on 17.09.1996 via the above-mentioned ADA/ADM.”. There are no documents from Malaysian Central Depository Sdn Bhd which were sent to the Plaintiff directly. Hence, DW1’s evidence that the sales and purchases of the shares as listed in p 224, CBoD were on the Plaintiff’s instructions is not supported with any documentary evidence. In fact, DW1’s answer as regards to whether there was any evidence that it was the Plaintiff who had given instructions to sell the shares was “saya tidak pasti”. There is not even a single document from SBBS that it had received instructions directly from the Plaintiff to sell her shares in MSGB, EMICO and Dai-Ichi. DW1’s oral testimony of SD1 lacks credence. DW1 was only 12 years old in 1996/ 1997 and not working with the Defendant at the material time. DW1’s evidence that the Plaintiff had dealt with SBBS directly was unsubstantiated and illogical because SFCB has the margin financing. If the Plaintiff wanted to trade shares using the margin financing, it is only logical that the Plaintiff goes through SFCB and not directly to SBBS. In Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 299 the Federal Court held, among others, that it is always “… safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case.”. Kushwant’s Memo is contemporaneous to the event and corroborates the Plaintiff's position that she cannot deal directly with SBBS and has to go through SFCB. Kushwant wrote that the Plaintiff wanted to sell the EMICO shares and she contacted SFCB. Kushwant did not say that the Plaintiff had contacted SBBS. SFCB had confirmed with the Plaintiff that the EMICO shares were transferred into the CDS Account. SFCB then allowed the Plaintiff to transfer her MAH SING shares in exchange from EMICO. By using the word “allowed” in Kushwant’s Memo, this shows that the Plaintiff cannot deal with the shares on her own accord; SFCB has to “allow” her to do it. Later, SFCB found out that the EMICO shares which were already sold were not in the CDS Account. Based on Kushwant’s Memo, it was not the Plaintiff who found out the EMICO shares were not transferred. This indicates that the Plaintiff was not in control of the CDS Account, but rather it was the Defendant. In Kushwant’s Memo, it was also stated that, on 11.9.1996, when SBBS informed SFCB that the shares were not in the Plaintiff's CDS nominee account, SFCB found the transfer forms were still kept in the file pocket and these were deposited with SBBS on the same day itself. The communication was thus between SBBS and SFCB, and not SBBS and the Plaintiff. Furthermore, when shares are sold or bought on the instructions of a client, there will be Contract Note. Northern Securities had issued a Contract Note in the name of the Plaintiff but there are no Contract Notes from SBBS in the name of the Plaintiff.

That the MSGB shares did not belong to the Plaintiff. On 18.9.1996, Malaysian Central Depository Sdn Bhd wrote to SFCB to advise that the MSGB shares were transferred by the Plaintiff into SFCB’s account on 17.9.1996 via the ADA/ADM of SBBS. As such there is no need for the Plaintiff to “purchase” the MSGB shares as she had already owned these shares which was then transferred into SFCB’s account. There was no necessity for the “force-selling” of the MSGB shares; the reason was to recoup the losses caused by Mr. Kushwant Singh when there was a failure to ensure that Northern Securities had transferred the EMICO shares to SFCB and the EMICO shares were sold when SFCB did not even have the shares and had to buy it back at a higher price. This resulted in SFCB using the revolving credit to recover the losses.

That the Plaintiff had not paid for the purchase of the Dai-Ichi shares. On 19.9.1996, Malaysian Central Depository Sdn Bhd wrote to SFCB to advise that the Dai-Ichi shares were transferred by the Plaintiff into SFCB’s account on 18.9.1996 via the ADA/ADM of SBBS. The Defendant’s argument is akin to its contention on the MSGB shares and hence, the Court similarly accepts the Plaintiff’s submissions on the matter.

In the final analysis, the Plaintiff has proven, on a balance of probabilities and through contemporaneous documentary evidence, that the Defendant had, in its possession, the Plaintiff’s shares which it had sold and that she had suffered losses as a result of the Defendant’s act in selling the Plaintiff's shares and uplifting the fixed deposits and cash deposits of the Plaintiff.

With respect, there was insufficient judicial appreciation of evidence on the part of the SCJ and his findings of fact cannot be reasonably explained or justified. The SCJ was plainly wrong when he dismissed the Plaintiff’s claim for special damages. This merits appellate intervention. 2nd Ground: Whether the SCJ had erred in law and fact when he quantified general damages in the sum of

The SCJ’s reasonings can be seen in paragraphs 38 - 45 of the GoJ whereby the SCJ cited the decision by the Court of Appeal in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 for the legal principle that a person who is injured by another’s wrong is entitled to general damages for non-pecuniary losses such as pain and suffering, hardship, discomfort, mental distress and loss of amenities of life and that there is no standard rule to measure the damage in such cases.

The SCJ further found that –

the Plaintiff was successful in proving her losses as a result of the Defendant's negligence and breach of trust, particularly her monetary losses and hardship and difficulties due to her status as a bankrupt which was initiated by the Defendant;

the JID should not have been obtained by the Defendant in the first place and the Plaintiff suffered restrictions to her affairs for 30 years as a bankrupt;

the Plaintiff was entitled to general damages for non-pecuniary losses such as hardship and mental distress; and

contrary to the Defendant’s submission that the Plaintiff was only entitled to claim for nominal damages, the Plaintiff was entitled to general damages as the Court of Appeal has determined that the Defendant had committed negligence and breach of trust based on the facts of the case.

The learned counsel for the Defendant submitted that the amount awarded of RM250,000.00 was too high because the Plaintiff's evidence was that she claimed for general damages due to “humiliation” as she was declared a bankrupt. However, the Plaintiff conceded and did not dispute the amount in the JID and she failed to set aside the JID. The Plaintiff’s claim in the lower court did not seek to set aside the JID.

In addition, it was submitted that the SCJ had erred in considering other factors in awarding general damages instead of the Plaintiff’s own evidence regarding the humiliation following her status as a bankrupt.

Two other points of arguments by the Defendant are a repeat of the submission in respect of the 1st ground of appeal, namely, that the SCJ erred in considering there was no LoU from MBFFB and in considering the buying back of the shares by SFCB.

On the part of the Plaintiff, she contended that general damages in the sum of RM250,000.00 was disproportionate to the pain and suffering she had to endure as a result of the Defendant’s conduct. The Plaintiff was made a bankrupt and was only discharged by the Department of Insolvency after 12 years.

The position of the parties was made clear in the Supplemental Submissions (encl. 39 in Appeal No. 26 and encl. 31 in Appeal No. 32). The Plaintiff submitted that a reasonable amount for general damages would be RM500,000.00 while the Defendant contended that RM10,000.00 is the appropriate sum because the Plaintiff failed to establish “damage”.

I have scrutinised the SCJ’s GoJ, especially in paragraphs 35 - 46, where, among others, the SCJ said: “35. The losses suffered by the plaintiff was as a result of the defendant bank’s act in selling of the plaintiff’s shares and uplifting the fixed and cash deposit of the plaintiff.

The defendant never admitted their negligence and breach of trust but covered it up by using the plaintiff’s financing facility. The defendant was in a position to own up to the mistake but did not do so.

The defendant sold the plaintiff’s shares, uplifted her deposits and then made her bankrupt. The defendant used its dominant position where it had access to the plaintiff’s shares and deposits, sold and uplifted it. The defendant had abused its position as a fiduciary.”.

In my considered view, the SCJ was not plainly wrong in awarding the sum of RM250,000.00 as general damages by taking into account, among others, the factual background of the negligence and breach of trust by the Defendant which caused much hardship, difficulties and restriction to the Defendant. I did not think that appellate intervention was warranted in the circumstances of the case. 3rd Ground: Whether there is an appealable error as there is a distinct difference in the method of computation of interest in the Brief GoJ dated 31.1.2024 and the GoJ

As regards interest, in the SCJ’s broad grounds of decision it is stated as 5% per annum from the date the summons was filed whereas in the GoJ it is stated as 5% from the date of the CA Order. In the Amended Order by the CA, interest is from the date of the decision by the CA.

In the judgement dated 31.1.2024, interest is from the date the summons was filed.

Both Mr. Ravi Nekoo and Mr. Arham were in agreement that the parties must follow the CA Order and thus, interest was allowed at the rate of 5% per annum from 12.12.2022 (date of the CA Order) until full settlement.

Premised on the abovesaid considerations, the Plaintiff’s appeal in Appeal No. 26 was allowed in respect of the SCJ’s decision in dismissing the Plaintiff’s claim for special damages and the Defendant’s appeal in Appeal No. 32 was dismissed.

The total amount of general damages and special damages to be paid by the Defendant to the Plaintiff was capped at RM1 million.

As for costs, the Plaintiff submitted that costs of RM20,000.00 as awarded by the SCJ can be maintained but RM40,000.00 was prayed as costs for the appeal as the SCJ did not provide the GoJ in relation to the claim for special damages.

At the opposite end, the Defendant prayed for RM10,000.00 as costs for the assessment of damages and RM15,000.00 for the appeal on the ground that only two witnesses were called for the trial and for the appeal, the same documents for the trial were scrutinised.

I decided that there was no valid reason to disturb the SCJ’s order as to costs. Therefore, the Defendant was ordered to pay the Plaintiff costs of RM10,000.00 for the appeals, subject to allocatur. Dated: 31.10.2025 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR Solicitors for the Appellant in Appeal No. WA-12BNCvC-26-02/2024 and the Respondent in Appeal No. WA-12BNCvC-32-02/2024: Ravi Nekoo (Arvin Kumar Mohan and Zoya Malik with him) Messrs. NEKOO Solicitors for the Appellant in Appeal No. WA-12BNCvC-32-02/2024 and the Respondent in Appeal No. WA-12BNCvC-26-02/2024: Arham Rahimy Hariri (Noor Amalina Mursiedy with him)