BL-12BNCvC-4-05/2022

THASWINDERJIT SINGH GILL A/L GURDEV RESPONDENT(s) (IN THE SESSIONS COURT IN KLANG) SUIT NO: BL –B52NCVC-7-02/2020

THASWINDERJIT SINGH GILL A/L GURDEV PLAINTIFF(s) AND JUJHAR SINGH A/L NARIDDAR SINGH DEFENDANT 2 GROUNDS OF JUDGEMENT This is an appeal by the appellant against the decision of the learned Sessions Court Judge on 13th May 2022 who allows the Plaintiffs claim with cost. A. BACKGROUND [1] Plaintiffs claim against the Defendant is premised on a breach of contract in an investment transaction. Plaintiffs and Defendant were childhood friends. In 2016, Defendant came to see the Plaintiff to share with them the opportunity to invest in the chattel business that the Defendant is running with one of his family members by the name of Sarwan Singh a/l Kundan Singh (hereinafter referred to as Sarwan Singh). Defendant represented to the Plaintiffs that he was appointed by Sarwan Singh to run the business on his behalf. [2] Defendant then asked the Plaintiffs to invest in the chattel business and promise a return of investment (ROI) of 2% per month paid on pro rata rate based on demand but subject to the Plaintiffs giving 3 months’ notice. Defendant also represented to the Plaintiffs that the said investment will be used to buy goods for Defendant’s customers i.e. restaurants in Klang valley. [3] Plaintiffs then decided to invest with Defendant on one condition that Defendant gave a personal guarantee on the Plaintiff’s investment since Plaintiffs did not know Sarwan Singh. Defendant verbally agrees to this. [4] The Plaintiffs did receive the investment’s return from the Defendant for some time but later; the Defendant told the Plaintiffs that he is 3 having personal problem with Sarwan Singh and he is no longer working with him and that he will pay the Plaintiffs investment together with the ROI but he needs some time to settle the payments. [5] Defendant then informed the Plaintiffs that he is going to start a business involving manufacturing, export and import of all kinds of wood and rattan since this business had a profit margin between 85 – 100%. The Defendant start a company called Tynewood Manufactures Sdn Bhd. [7] The Plaintiffs then invest in this company and the terms of investment is as follows:

The investment returns will be paid on a pro rata rate of 2% per month based on demand subject to 3 months early notice given by

(ii) Return of investment (ROI) is 24% per annum on the amount of investment made;

(iii) Defendant will return the amount of investment made gradually subject to the availability of money;

(iv) Defendant as the receiver of the said investment will be responsible on the investment made by the Plaintiff’s and he gave his personal guarantee. [8] Plaintiffs agreed with the terms of the said investment and had invest in the following amount:

1st Plaintiff - Total Investment plus ROI - RM 229,400.00

(ii) 2nd Plaintiff - Total Investment plus ROI - RM 185,000.00

(iii) 3rd Plaintiff - Total Investment plus ROI - RM 170,200.00 4

(iv) 4th Plaintiff – Total Investment plus ROI – RM 93,240.00

5th Plaintiff – Total Investment plus ROI – RM 74,000.00

(vi) 6th Plaintiff – Total Investment plus ROI – RM 44,400.00 [9] Till this date, Defendant failed to pay the above sum due to the Plaintiffs. On 8.4.2019, a meeting was held in the presence of 1st and 2nd Plaintiff, Defendant was represented by his father and Sarwan Singh. Defendant’s father informed 1st and 2nd Plaintiff that the Defendant’s business had suffered losses and the balance of the investment ROI that is due and owing to the Plaintiffs will be paid by the Defendant by or before June 2019. Plaintiffs had agreed to this term of arrangement of payment. However, after the said meeting, Defendant had failed to make any payments and the Defendant’s father had blocked all calls make by the Plaintiffs. Hence, the Plaintiffs filed this suit. [10] Defendant denied ever owing the said sum to the Plaintiffs. Defendant claims there is no written agreement between parties to prove that there is any such investment transaction that Defendant had asked the Plaintiff to invest in. Defendant also denied that he gave any personal guarantee to the Plaintiffs on the said investment (if any). B. DECISION [12] The Court of Appeal in UMW Motor Sdn Bhd & Anor v Allan Chong Teck Hin [2021] 5CLJ 193 had laid down principles regarding appellate intervention when it comes to decision that is premised on a finding of fact through evidence from witnesses by the trial judge. The Court of Appeal held: 5 “Principles of Appellate Intervention [28] Foremost on our minds are the two tests, namely, “plainly wrong test” and “insufficient judicial appreciation of evidence” test for appellate interference in subordinate court’s findings. In respect of the two tests, the Court of Appeal held as follows in Lee Eng Chin & Ors v Gan Yook Chin & Anor [2003] 2CLJ 19; [2003] 2 MLJ 97 at pp.90 to 99:

Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving evidence. Where contemporaneous documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against this. He must also test the evidence of a witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived by a trial court without judicial appreciation of the evidence may be set aside on appeal. [29] The Court of Appeal has reiterated in Ong Chiou & Anor v Keller (M) Sdn Bhd & Ors & anor appeal [2019] 1LNS26; [2019] 3MLRA 322 at pp 329 that: -

We are mindful of the limited role of the appellate court in relations to the findings of court made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the finding ought not to be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant an appellate court interference merely because the appellate court entertains doubt whether such finding is right. (see: Lee Ing Ching Ors v Gan Yook Chin 6 & Anor [2003]2CLJ 19, [2003] 1 MLRA 95. Gan Yook Chin & Anor v Lee Ing Chin Ors [2004] 4 CLJ 309, [2004] 2 MLRA 1). [13] The learned Sessions Court Judge had found in favour of the Plaintiffs in this suit after hearing the testimony of 8 witnesses for the Plaintiffs and 1 witness from Defendant i.e. the Defendant himself. After the learned Sessions Court Judge perusing all documents, written submissions filed by parties, she decided to allow the Plaintiffs claim with costs based on scale payable by the Defendant. [14] This court had also perused the grounds of judgment written by the learned Sessions Court Judge as to how she derived at her decision. She had found there is enough credible evidence adduced by the Plaintiffs in showing on the balance of probabilities that there were monies paid by the Plaintiffs as their pleaded case to the Defendant either through the Defendant’s account or the Defendant’s company account (Tyne Manufacturers Sdn Bhd) and third-party accounts which was proven to be based on the instructions of the Defendant. [15] Defendant in his testimony admitted that he conducted a business with one Sarwan Singh in the year 2016 known as Imej Massa. [Refer to Encl 12 Additional Record of Appeal page 15 paragraph 35 and 36]. Due to personal problem with Sarwan Singh, Defendant then set up another company known as Tynewood Manufacturers Sdn Bhd where he is the Chief Executive Officer [P15 - carian SSM Tynewood Manufacturers Sdn Bhd]. During trials, there were emails from Defendant using the email 7 address tynewood@outlook.com (exhibit P16 and P17) proves that Defendant was involved in the management of the said company. [16] So, based on Defendant’s own testimony and documents tendered and marked as exhibit shows that Defendant had the power and authority to declare the socalled profit that he had promised the Plaintiffs. [17] Through out trial and based on the Notes of proceeding, shows that Plaintiffs had make payments into the Defendant’s account or to an account that he had instructed payment being made. There were also print screen of Whatsapp conversation between Defendant and 1st, 2nd and 4th Plaintiff (exhibit P13, P19 and P32) that supports the Plaintiff’s claim. These are the evidence that the learned Sessions Court Judge took into her consideration when she came to her finding. This is not mere assertion or an afterthought evidence. This evidence is supported by documentary evidence not only being marked as exhibits but Defendant failed to rebut these documentary evidence with his own documentary evidence to show otherwise. Mere denial vide oral evidence is not a rebuttal per se unless it is supported by a documentary evidence that would demolish the documentary evidence adduced by Plaintiffs to support their oral testimony. The learned Sessions Court Judge refers to the case of KPF Niaga Sdn Bhd v Vigour Builders Sdn Bhd [2021] 1 LNS 141 which states: “ [37] ….It is trite law where a party raises a material fact and this is not contradicted , the fact would be treated as unrebutted evidence in support of the party who adduces the fact (see, inter alia Ng Hee Thoong 8 v Public Bank Bhd [1995] 1 MLJ 281 and Seruan Gemilang Makmur (via his secretary Dato’ Ahmad Tajudin bin Sulaiman) [2010] 8 MLJ 57. [18] Defendant submits that there is no written agreement forwarded by the Plaintiffs to show there is such an investment that was offered by the Defendant. It has always been the Plaintiff’s pleaded case, whatever agreed by parties is mutually agreed orally, there is no written form of contract. The learned Sessions Court Judge had rightly pointed out that a valid contract not only be in a written form as it can also be by oral agreement. Plaintiffs authority in Wee Su Bee v Goh Lai Chun & Pui Cheng Chin [2020] 1 LNS 1897 which states that: “ [51] I am not suggesting for one moment that an agreement cannot be made orally. It can. We have a line of authorities to indicate that for so long as the ingredients of a valid contract are in existence, an oral agreement is as good as a written agreement; see Diamond Peak Sdn Bhd & Anor v Dr Tweedie [1981] 1LNS 136; [1982] 1 MLJ 97. This proposition was reiterated by the Supreme Court in Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] CLJ Rep 266; [1985] CLJ Rep 266; [1985] 2 MLJ 291 SC. [19] As for the Defendant’s submission that the money that was transferred into his account tantamount to illegal money lending and the chattel business as stated by the Plaintiffs in their statement of claim is part of this illegal money lending; the learned Sessions Court Judge had rightly pointed out, from the evidence of the witnesses, it was the Defendant who had represented to the Plaintiffs about the chattel business in order to get the Plaintiffs to invest; it is not the Plaintiffs’ business. 9 [20] Based on the above reasons, this court finds that the finding of fact of the learned Sessions Court Judge do not warrant this Court to disturb. The learned Sessions Court Judge had made her finding on the correct law and procedure and there are no flaws in her finding. Therefore, this court dismiss the appeal by the Appellant with cost of RM 10,000.00 and affirm the decision given by the learned Sessions Court Judge. Dated 4 October 2022 -sgd- (NORLIZA BINTI OTHMAN) JUDICIAL COMMISIONER HIGH COURT KLANG 10 BAGI PIHAK PERAYU : Messrs Amarpreet Singh & Co Advocates & Solicitors No.111B, Jalan Sentral 24, Taman Nusa Sentral, 79100 Iskandar Puteri, Johor Darul Ta’zim BAGI PIHAK RESPONDEN : Tetuan Andy Pheh & Kel Sidhu No. 32-01-61, 32nd Floor, Menara Keck Seng, No. 203, Jalan Bukit Bintang, 55100 Kuala Lumpur. Jalan SS3/39, 47300 Petaling Jaya, Selangor