Cimb Bank Berhad v Gerak Jalinan Sdn Bhd (MA-22NCC-7-05/2021)

CIMB BANK BERHAD (Registration No. 13491-P)

SUZIE YANTI BINTI AB RASED ... DEFENDANTS IN COUNTERCLAIM GROUNDS OF JUDGMENT A. INTRODUCTION [1] This action concerns a banker's guarantee. The Plaintiff is a licensed bank. It issued Quick Guarantee No. TF001G506897 for RM2,000,000.00 in favour of Petronas Dagangan Berhad as beneficiary. The guarantee was issued upon a written application bearing the Defendant's name, particulars and company stamp, together with the signature of a person described as an authorised signatory of the Defendant's current account. The beneficiary called upon the guarantee, and the Plaintiff honoured the call by paying the beneficiary. The Plaintiff now claims reimbursement from the Defendant, by way of indemnity and, in the alternative, in restitution. [2] The Defendant denies the claim. It pleads that it never applied for, executed or authorised the Quick Guarantee; that no resolution of its board sanctioned any such facility; that the persons named on the application could not bind it; that the only facility it sought was a conventional small-and-medium-enterprise bank guarantee facility, which the Plaintiff rejected; and that the sum of RM2,026,015.00 was wrongly debited from its current account. By its Counterclaim, the Defendant seeks the return of RM26,015.00 and of RM19,500.00 said to be interest withheld. It also claims, against the second to fourth Defendants to the Counterclaim, RM3,000,000.00 in damages for slander said to have been published to officers of the beneficiary. [3] The trial occupied five days: 26 March, and 13, 14, 23 and 24 April 2026. The Plaintiff called seven witnesses (SP1 to SP7) and the Defendant two (SD1 and SD2). The documentary record included, among other materials, Bundles A to L and trial exhibits. I have had the benefit of full written submissions from both parties. The findings that follow rest upon the testimony and the exhibits. I have been careful to ground each material finding in the primary document and, where it exists, in the witness's answer in the Notes of Evidence (Enclosure 242), rather than in the characterisation either party has placed upon them. B. THE ACCOUNT, THE MANDATE AND THE TWO PRODUCTS [4] The Defendant maintained current account No. 800748857 with the Plaintiff from April 2015 (Bundle A, pp. 36-83; Bundle B, pp. 23-28). The signing mandate was recorded in the account-opening documents and amended on 11 February 2020 (Bundle E, pp. 48-52). It conferred operating authority upon Anthony Kok (Kok Chee Yen) as sole signatory for any amount, and upon a second group able to sign jointly. Two persons named as directors at account opening, Rosli bin Ismail and Mazlan bin Abdul Kadir, were never made signatories. They held no operating authority over the account or over the Plaintiff's BizChannel platform. SP6 so testified (Enclosure 242, pp. 252254,262-263), and that evidence was not displaced. It follows from the mandate itself that the operation of the account turned upon the authority of the account signatories, and not upon the formal directorship of those who held none. [5] Two distinct banking products feature in the case. The distinction between them is established by the contemporaneous forms and by the unchallenged evidence of the Plaintiff's officers, and not by any party's description of them. The first is the "quick guarantee". It is a guarantee issued within a short period upon an application signed by an authorised signatory of the current account. It requires no directors' resolution, and is secured by an immediate cash-margin debit on which no interest accrues (SP3, Enclosure 242, pp. 107, 114; SP4, pp. 181-182, 214-215). The second is the conventional "bank guarantee facility". It takes one to two months to process, requires a directors' resolution and a letter of offer, and is secured by a fixed deposit pledged to the bank on which interest accrues (SP3, p. 163). The distinction matters. The instrument actually issued was the Quick Guarantee, which required only a signatory's authority. The facility the Defendant says was rejected was the different, interest-bearing instrument intended to replace the cash margin. The defence collapses these two products into one; the forms and the oral evidence keep them apart. C. THE ISSUES [6] The issues for determination are these:

whether the Quick Guarantee was applied for, executed and authorised by the Defendant, or, as it contends, was never its instrument;

(ii) whether the Defendant knew of the Quick Guarantee and procured the beneficiary's call upon it;

(iii) whether the Plaintiff paid the beneficiary, and in what sum, and whether the Defendant is liable to reimburse that sum under the contract or in restitution;

(iv) whether any adverse inference arises from the parties' conduct of the trial; and

whether the Counterclaim, in its wrongful-debit and slander limbs, is made out. D. WHETHER THE DEFENDANT APPLIED FOR AND EXECUTED THE QUICK GUARANTEE [7] The first and central question is whether the Quick Guarantee was the Defendant's instrument. The defence is that the application was never made, never executed and, at its highest, fabricated. The documentary record is to the contrary, and I make my findings upon the documents themselves. [8] The executed quick-guarantee application is in evidence, processed, approved and stamped (exhibit P8; Bundle K, pp. 613). On its execution page it bears the Defendant's company stamp and the signature of an authorised signatory. A company's rubber stamp on a banking application, accompanied by a signatory's execution, is cogent evidence that the company made the application. It is not the act of a stranger. The application also enclosed a sample guarantee in the precise format required by Petronas. The record shows the Defendant was a Petronas bitumen customer; this supports the inference that the guarantee was for its trading relationship. No third party had reason or means to procure a guarantee in Petronas's house format for the Defendant's benefit. I find that the Defendant applied for and executed the Quick Guarantee. [9] The defence that the application required, but lacked, a directors' resolution is misconceived on the terms of the product. By clause 1, the Terms and Conditions endorsed upon the application (Bundle K, p. 22) provide that the persons signing represent themselves to be the applicant's authorised signatories. They require no board resolution. The directors' resolution belongs to the different conventional facility. The application here was signed under the Defendant's stamp by the account signatory identified in the mandate. The mandate is an express term of the banker-customer relationship, which the bank was bound to honour and entitled to act upon. Having acted upon it, the Plaintiff cannot be met with the answer that some further authorisation was wanting, when the product never required it. The Defendant relies to the contrary on Pembinaan Bumi Gemilang Sdn Bhd v RHB Bank Berhad & Anor [2009] CLJU 1006 (High Court). But the duty identified there is the bank's duty to exercise reasonable skill and care in carrying out the mandate given by its customer. The case does not erect a board resolution into a precondition of every transaction. The operative mandate here was the signatory mandate, and the bank discharged its duty by acting upon the signature of the sole signatory authorised for any amount. So understood, the authority tells against the Defendant, not for it. The mandate was honoured. [10] The Defendant further contends that the Quick Guarantee application was fabricated or altered. That contention rests principally on the evidence of SD1, who expressed the view that the document appeared inconsistent in format and presentation. On the other hand, SP3 explained that amendments or repreparation of portions of application forms may occur during processing for administrative purposes. No handwriting expert, forensic document examiner or other independent expert evidence was adduced to establish forgery, fabrication or unauthorised alteration. On the evidence before the Court, I am unable to find that the Defendant has discharged its burden of proving fabrication or forgery. The allegation therefore remains unproven. [11] Nor does the Defendant's reliance on CIMB Bank Bhd v Lee Kim Kee & Ors [2018] 9 CLJ 168 (Court of Appeal) carry the defence further. There, the bank was held vicariously negligent. Its officer had acted upon a mandate procured by a third party, an absconding solicitor, wholly without the customer's involvement, and had failed to observe the formalities that would have exposed the fraud. The premise of that liability is absent here. On the findings I have made, the application was executed under the Defendant's own stamp and by the hand of its sole account signatory. The Defendant knew of the guarantee throughout. And, as appears in Part E below, it itself procured the beneficiary's call. There being no irregularity for the Plaintiff to detect, the duty of care discussed in Lee Kim Kee is not engaged. The negligence said to flow from the absence of a board resolution does not arise, the product never having required one. E. THE DEFENDANT'S KNOWLEDGE OF THE GUARANTEE AND THE INSTRUCTIONS TO PETRONAS [12] Were the foregoing in doubt, the Defendant's knowledge of the Quick Guarantee and its active part in the call upon it are placed beyond argument by its own documents. I rest this part of the judgment upon four matters of record. [13] First, the debit. Upon approval, the sum of RM2,026,015.00 was debited from the current account on 25 October 2019. That reduced the balance from RM2,193,506.45 to RM467,491.45 (Bundle B, p. 87; debit advice and advice note, exhibit P10, Bundle E, pp. 43-44). SD1 accepted that the Defendant knew of so substantial a debit "the next day" (Enclosure 242, p. 376). Yet no complaint was made for almost three months, and SD1 could give the court no account of the delay (pp. 372-374). A company that learns at once of a RM2 million debit, and says nothing for three months, did not regard the underlying transaction as a stranger's act. The silence is consistent only with knowledge. [14] Secondly, the solicitors' letter of demand of 29 January 2020 (Bundle B, p.1) referred to the guarantee in terms, citing its reference number "TF001G506897". That is the very number borne by the Quick Guarantee (exhibit P9, Bundle E, pp.41-42). SD1 confirmed the identity of the reference number (Enclosure 242, pp.342-343), but could not explain how the Defendant's own solicitors came by it if the Defendant had no knowledge of the guarantee (p.342, "I don't know"). The only rational inference is that the information came from the Defendant, which therefore knew of the guarantee it disowns. This is a relevant circumstance when assessing the Defendant's knowledge of the guarantee. [15] Thirdly, and decisively, the Defendant instructed the beneficiary to call upon the very guarantee it now disclaims. Four emails from the Defendant's admitted official account, gerakjalinan@yahoo.com.my, instructed Petronas to "cash out / liquidate" Quick Guarantee No. TF001G506897 (exhibit P3, pp. 1-2, two emails of 23 July 2020; exhibit P1, p. 3, email of 26 August 2020; Bundle E, p. 65 within exhibit P23, email of 24 August 2020). SD1 confirmed that gerakjalinan@yahoo.com.my is the Defendant's company email address (Enclosure 242, pp. 363-364). The Defendant took no step to investigate and lodged no report alleging interception, and SD1 agreed that the emails were in likelihood genuine (pp. 339-341). SP1 of Petronas confirmed that, unusually, the liquidation was requested by the customer and not initiated by the beneficiary. He added that, but for those instructions, Petronas would not have called at all, the Defendant having a good payment record and no overdue amount (Enclosure 242, pp. 35-36). A company that directs a third party to liquidate a guarantee, in order to discharge its own overdue trading account, cannot be heard to say that it neither knew of nor authorised that guarantee. This finding alone disposes of the authority dispute. [16] Fourthly, the claim documents were sent to and acknowledged at the Defendant's own address. On 4 September 2020, SP5 emailed the Defendant's official account, attaching Petronas's claim letter and, separately, the password to it (exhibit P22, Bundle E, pp. 59-60). The Defendant has never denied receipt, and made no reply. The opportunity to disavow a guarantee said to be unknown was there, and was not taken. I find that the Defendant was at all material times aware of the Quick Guarantee, and played an active part in its liquidation. [17] The Defendant resists this conclusion by an objection of admissibility. It says that SP1's testimony about the Petronas emails, exhibits P1 to P3, is hearsay offending section 60 of the Evidence Act 1950. SP1 was not the maker of those emails, it says, and did not perceive their contents through his own senses, so that the rule in Subramaniam v Public Prosecutor [1956] 1 MLJ 220 excludes them. The objection misconceives the basis on which these documents are received, and whose case they belong to. The rule against hearsay is concerned with the out-of-court statement of a third party, tendered through a witness who cannot vouch for its truth. That, and no more, is what Subramaniam decides. The liquidation emails are not the statements of a third party. They emanate from the Defendant's own admitted email account, gerakjalinan@yahoo.com.my, and are tendered against the Defendant as its own statements. As such, they are admissions within sections 17 to 21 of the Evidence Act 1950, receivable against their maker as an exception the hearsay rule does not touch. The truth of an admission is proved by the fact that the party made it, not by the oath of the witness who produces it. It is therefore immaterial that SP1 was not their author. The foundation for receiving the emails is not SP1's perception of their contents. It is SD1's own concession that the account is the Defendant's and that the emails were in likelihood genuine (Enclosure 242, pp. 339-341, 363-364), the Defendant having lodged no report of interception and taken no step to disown them. Even if SP1's narrative gloss upon the emails were left out of account altogether, the documents would still speak for themselves, and the finding that the instruction to liquidate emanated from the Defendant's own account would stand undisturbed. The objection is thus directed at evidence the Court does not need, and it leaves the dispositive material untouched. [18] The subsidiary defence concerning "Ms Lee" does not assist the Defendant. The Defendant says she was neither its employee nor authorised. The evidence is that she held herself out for the Defendant and was treated as its liaison. SP4 placed her at the Defendant's offices, receiving the bank's officers (Enclosure 242, pp.184-185). SP7 telephoned the number on the application form, and "Ms Lee introduced herself" as the person in charge of the guarantee (pp.286-287). And Andy Kok, far from disowning the bahagiatiram99@yahoo.com address through which "Ms Lee" corresponded, adopted it ("I only have bahagia tiram email"; exhibit P14, Bundle F, pp.50-51). A principal that allows another to transact in its name, on its premises and through an address it adopts, cannot afterwards disavow the agency when the transaction proves inconvenient. The point is one of estoppel by conduct, of the kind recognised in Aura Indah Jaya Sdn Bhd v OCBC Bank (M) Bhd [2021] 10 MLJ 21. The Defendant further submits that an adverse inference should be drawn against the Plaintiff for not calling "Ms Lee". That is misconceived. She was not the Plaintiff's witness to call: on the evidence, she acted for the Defendant, at its premises and through an address it adopted. If her absence tells against anyone, it tells against the Defendant, through whom she transacted, and not against the bank that dealt with her as the Defendant's representative. [19] Two further defences may be dealt with shortly, since each is contradicted by the Defendant's own documents. The first is that the Defendant fell outside the "SME" category, so that the facility could not be processed by the SME department. That is answered by the account-opening form, in which the Defendant described itself as a "Small SME" (Bundle B, p.38); by SD1's admission that the Defendant never exceeded thirty employees (Enclosure 242, pp.314-316); and by the title of its own application form, "Small and Micro Businesses Application Form For Facilities" (exhibit P20, Bundle E, pp. 73-81). The second is that a RM2 million guarantee was beyond the department's competence. That is answered by the unchallenged evidence of SP3, SP4 and SP6 that the sum was processed as two consecutive applications of RM1 million each (Enclosure 242, pp. 164, 190, 266). Neither defence is supported by any document, and both are contradicted by the Defendant's own. The connected complaints take the matter no further: that the relationship manager exceeded an internal RM1 million limit, and that some two months separated application from issue. A bank's internal authorisation limits and processing times regulate the relationship between the bank and its officers. They are res inter alios acta as against the customer, and do not bear upon whether the Defendant is bound by an instrument issued upon the mandate of its own signatory. F. THE RETURN OF THE RM2 MILLION AND THE FAILURE TO FORMALISE [20] The Defendant's explanation for the return of RM2 million to its account on 24 January 2020 (Bundle B, p. 99) is that it followed the rejection of a facility. The contemporaneous record contradicts that explanation. SP3's email of 23 January 2020 to the Defendant's account states in terms that the "purpose of the refund of the cash margin is for collateral to the Bank Guarantee Facilities" (exhibit P15, Bundle F, p. 15). The first such facility, of RM1 million, had been approved, and a letter of offer was issued the following day (exhibit P16, Bundle F, pp. 21-49). The return was thus a step in formalisation: the margin was to be placed in fixed deposit and pledged. It was not a consequence of rejection. The Defendant did not complete the formalisation. It neither executed the letter of offer nor pledged the deposit, and the returned funds were promptly dissipated from the account (Bundle B, pp. 97-99). It was that dissipation which left the Plaintiff without the security it had held when, in September 2020, it was obliged to honour the call. [21] Two matters in the Plaintiff's evidence, pressed by the Defendant, should be addressed, though neither disturbs these findings. First, SP4 accepted in cross-examination that the two letters comprised in exhibit P19, each headed "Notice of Demand", were in substance proposals for formalisation rather than demands, and that their headings did not answer to their contents (Enclosure 242, pp. 204-205). That is a blemish in the bank's documentation, but it is immaterial. The cause of action is the contractual indemnity upon a guarantee duly called, not the characterisation of those letters, and nothing in the disposition turns upon them. Secondly, the suggested contradiction between SP3 and SP4 is no contradiction at all. The one spoke of a rejected application; the other of a facility approved in January. But SP3 spoke of the initial bank-guarantee facility application, while SP4 spoke of the later formalisation facility and the letter of offer of 24 January 2020. They describe different applications, at different stages of the same matter. G. LIABILITY TO REIMBURSE AND PROOF OF THE PAYMENT [22] A banker's guarantee of this kind is an autonomous undertaking. Upon a conforming demand the bank must pay. No fraud on the part of the beneficiary having been pleaded or proved, the bank's right to reimbursement from its customer follows. That right rests here on the Defendant's express contractual undertakings in the Terms and Conditions of the application (Bundle K, pp. 22-25): the right to debit (clause 2); the indemnity against all sums paid under the guarantee (clause 5); the continuing liability until discharge (clause 6); and the obligation upon a call (clause 8). These are the Defendant's own contractual promises, and effect must be given to them. [23] The fact and amount of the payment are proved, and proved out of the mouth of the recipient. SP1 of Petronas gave evidence that the Plaintiff paid out on the guarantee. The beneficiary's account records receipt of RM2,000,000.00, applied against the Defendant's overdue bitumen account, with the balance carried to the Defendant's credit (Enclosure 242, pp. 37-39). The Plaintiff's own record of the disbursement to Petronas on 10 September 2020 is in evidence (exhibit P24, Bundle E, pp. 66- 71) . The payment is therefore established by the party least likely to overstate the Plaintiff's case. I find that the Plaintiff paid RM2,000,000.00 to the beneficiary in discharge of the guarantee. [24] That the sole beneficiary of the payment was the Defendant is plain. Its liability to Petronas was extinguished, and its trading account thereafter stood in credit. Were the matter to rest in restitution rather than contract, the same conclusion would follow. The elements of unjust enrichment identified in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 (Federal Court) are satisfied: the Defendant was enriched by the discharge of its debt to its own supplier; the enrichment was at the Plaintiff's expense; and the retention of that benefit without reimbursement is unjust. The authorities relied on by the Plaintiff, Bumiputra-Commerce Bank Bhd v Siti Fatimah Mohd Zain [2011] 2 CLJ 545 and Leong Dye Yoong v Alliance Bank Malaysia Bhd [2020] MLJU 1931, are to the same effect. H. THE QUANTUM AND THE CERTIFICATE OF INDEBTEDNESS [25] As to quantum, the Plaintiff's claim is for the sum it paid to the beneficiary. The Defendant's attack on the Certificate of Indebtedness (exhibit P21) is, on this record, well founded, and I do not rest the quantum upon it. SP4, its maker, accepted in cross-examination that the certificate was founded upon exhibit P10, a debit advice recording the inception debit from the Defendant's own current account. She further accepted that the RM2,000,000 cash margin so debited was afterwards unliened and returned to the Defendant on 24 January 2020 (Enclosure 242, pp. 189, 205-207). A certificate that certifies a subsisting indebtedness on the strength of a debit the bank itself had reversed is unsafe. The conclusive-evidence clause (clause 11 of the Terms and Conditions) cannot cure that defect, for the absence of a sound foundation is itself the manifest error the clause excepts. I therefore give the certificate no weight. The result is unaffected, because the quantum does not depend upon the certificate. As held in Part G, the Plaintiff's payment of RM2,000,000 to the beneficiary on 10 September 2020 is independently proved, by the evidence of the beneficiary's officer (SP1) and by the Plaintiff's own record of the disbursement (exhibit P24, Bundle E, pp. 66-71). It is upon that proven payment, and upon the Defendant's contractual indemnity, that the principal sum rests. The Plaintiff's pleaded claim was advanced in the sum of RM2,000,110. But the figure independently established on the evidence, the certificate having been set aside, is the RM2,000,000 paid to the beneficiary. It is for that sum that judgment is given, the additional RM110 not having been separately proved. [26] In fairness to the Plaintiff, which defends the certificate in its submissions in reply, I should explain why the conclusive-evidence authorities it marshals do not alter this conclusion. The Plaintiff relies on Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685, in which the Federal Court held that a certificate of indebtedness issued under an express conclusive-evidence clause is final and conclusive of the amount stated, in the absence of manifest error, the burden of displacing it lying on the customer. It relies on Bank Muamalat (M) Bhd v Hexagon Holdings Bhd [2015] 7 MLJ 134 to like effect. I accept that statement of principle without reservation. It does not, however, avail the Plaintiff on the present record, for two reasons. First, the conclusiveness for which such a clause provides attaches to a certificate that is sound on its own premises. It does not compel the court to treat as incontrovertible a certified state of subsisting indebtedness once the maker of the certificate has conceded in evidence that its foundation was a debit the bank itself had since reversed. A certificate so undermined falls within, and not outside, the manifest-error exception the clause itself preserves. The displacement of the certificate in Malayan Banking Bhd v Skycon Development Sdn Bhd [2015] 7 MLJ 491, itself among the Plaintiff's own authorities, illustrates the point. Secondly, and in any event, the result does not depend upon the certificate at all. The very authority on which the Plaintiff relies confirms, adopting Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643, that a bank may recover without producing a certificate where, by ordinary legal evidence, it proves the actual indebtedness of its customer. That is the course I have taken. The certificate was prepared for the summary-judgment application (Enclosure 20, dismissed on 25 July 2022), and the matter has since gone to full trial. The indebtedness now falls to be assessed on the whole of the evidence, which independently establishes the payment of RM2,000,000 to the beneficiary. The congruence between that proven sum and the figure the certificate records is, if anything, confirmatory of the quantum. But it is upon the proven payment, and upon the Defendant's contractual indemnity, and not upon the certificate, that the judgment for RM2,000,000 rests. I. ADVERSE INFERENCE [27] The Defendant's general manager, SD1, testified that Mazlan was the director in charge of the relevant matters, and the person who instructed the Defendant's solicitors at the material time (Enclosure 242, pp. 344-345). Yet the Defendant did not call Mazlan, took no step to secure his attendance, and offered no explanation for his absence. On the Defendant's own case, Mazlan is the witness who could have proved that the application was never made or never authorised. The Plaintiff, by contrast, attempted to subpoena him, service proving impossible (Enclosures 232 and 237). Where a party fails, without credible explanation, to call a material witness within its own reach and peculiarly able to speak to the central issue, the court may presume that the evidence would not have assisted that party: section 114(g) of the Evidence Act 1950. So it was held in Araman Jaya Sdn Bhd v Kumpulan A Besik Sdn Bhd [2011] 8 CLJ 557, an authority in the Defendant's own bundle, where a defendant's failure to call its directors, the witnesses able to disprove the plaintiff's case, attracted the presumption; and in Bandari Simma Realty Sdn Bhd & Anor v Ravichanthiran a/l Ganesan [2021] 9 MLJ 330. I draw that inference against the Defendant on the question of authority. [28] The Defendant's answer does not meet the point. It says no inference should lie, because Mazlan and the other former directors are no longer within its control, and because it called the current director, SD2. The limiting principle in Munusamy Vengadasalam v Public Prosecutor [1987] CLJ (Rep) 221, also relied on by the Defendant, confines the presumption to the suppression of a material witness. But Mazlan is, on the Defendant's own case, exactly such a witness: the director said to have been in charge of the matter, and to have instructed its solicitors. SD2, a current director without knowledge of the events of 2019, was no substitute for him. That the Plaintiff, and not the Defendant, attempted to secure Mazlan's attendance only confirms where the unexplained omission lies. No corresponding inference lies against the Plaintiff. The Defendant sought one for the Plaintiff's not calling the Petronas officers, Noor Lia binti Ismail, M Haikal bin Zakaria and Nur'ain Zainuddin, said to be better placed than SP1 to speak to the email threads at exhibits P1 to P3. But those officers are employees of a stranger, not within the Plaintiff's power to produce. Their nonproduction is a failure to obtain evidence, not the suppression of it, and on the same principle in Munusamy it falls outside section 114(g). In any event, their evidence would have gone only to the internal routing of those emails within Petronas, and not to the dispositive fact, namely that the instruction to liquidate the guarantee emanated from the Defendant's own admitted account, which is independently established by the documents and by SD1's own concessions. The Defendant presses the same inference more forcibly in respect of Tan Yong Suang, who, being the Plaintiff's own officer, is said to lie within its control. The footing is stronger, but the answer is the same. Tan could speak only to the rejection of the conventional bank-guarantee facility, the interest-bearing instrument the Defendant says it was refused, and not to the authority for the Quick Guarantee, which is the instrument actually issued and the only one in suit. His evidence would therefore have gone to a matter that is not dispositive of the issue on which authority turns. In any event, the rejection and subsequent formalisation of that conventional facility are established by the contemporaneous record, namely SP3's email of 23 January 2020 and the letter of offer of 24 January 2020 (exhibits P15 and P16), which render his testimony otiose. No suppression of material evidence in the sense contemplated by section 114(g) arises where the witness withheld could speak only to an immaterial matter. J. COUNTERCLAIM [30] The Counterclaim as pleaded originally contained two limbs. The first sought RM26,015.00, the balance of the debited sum not returned, and RM19,500.00, alleged interest forgone. The second sought RM3,000,000.00 in damages for slander said to have been published by the second to fourth Defendants in the Counterclaim to officers of the beneficiary. By orders of this Court dated 25 July 2022 (Enclosures 22, 23 and 24; Bundle A, pp. 122-127), the Counterclaim against the second, third and fourth Defendants in the Counterclaim was struck out with costs. Those individuals were therefore not parties to the Counterclaim at trial, and the slander limb is not before the Court for determination. The surviving Counterclaim is against CIMB Bank Berhad alone. It seeks the return of RM26,015.00 and RM19,500.00. That claim fails. [31] The complaint of wrongful debit cannot stand, because the debit was authorised. By clause 2 of the Terms and Conditions (Bundle K, p. 22), the Defendant irrevocably authorised the Plaintiff to debit its account for the guarantee amount, charges and fees. An irrevocable debit mandate cannot found a claim for wrongful debit. The principal sum of RM2 million was in any event returned to the account (Bundle B, p. 99). The retained RM26,015.00 comprised commission, postage and stamp duty referable to a guarantee that was issued and then called; the commission was earned and the disbursements incurred. No basis has been shown for the return of those charges. The claim to RM19,500.00 as fixed-deposit interest is without foundation. No fixed deposit was ever placed, the Defendant having declined to complete the formalisation process. Clause 10 of the Terms and Conditions (Bundle K, p. 9) expressly provides that no interest is payable on the Guarantee Amount. No contractual or other basis for the claimed interest was shown, and no document supports it. The Counterclaim against CIMB Bank Berhad is therefore dismissed in its entirety. K. CONCLUSION [32] Drawing the threads together. The Quick Guarantee was applied for and executed by the Defendant, under the company stamp and the signature of its sole account signatory, and required no board resolution. The Defendant knew of the guarantee throughout, and itself procured the beneficiary's call upon it through its own admitted email account. The Plaintiff paid RM2,000,000.00 to the beneficiary, in discharge of a guarantee from which the Defendant alone benefited; that payment is proved by the beneficiary's own evidence and records. The Defendant is liable to reimburse that sum under its express contractual undertakings and, in the alternative, in restitution. An adverse inference falls to be drawn against the Defendant for the unexplained failure to call Mazlan. The Counterclaim fails in both limbs. The Plaintiff has proved its claim on the balance of probabilities; the Defendant has not proved its Counterclaim. L. ORDERS OF THE COURT [33] For the reasons set out above, I make the following orders:

There shall be judgment for the Plaintiff against the Defendant in the principal sum of RM2,000,000.00.

Interest on the said sum at the rate of 5% per annum from the date of payment to the beneficiary until the date of judgment, and thereafter at 5% per annum from the date of judgment until full realisation.

The surviving Counterclaim against CIMB Bank Berhad is dismissed. For completeness, the Counterclaim against the $ 2^{n d}-4^{t h} $ Defendants had already been struck out by Orders dated 25.7.2022.

The Defendant shall pay the Plaintiff the costs of the action and of the Counterclaim in the sum of Rm 50,000 subject to allocatur. Dated 19 June 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Plaintiff Cik Yenne Chow Tetuan Raja, Darryl & Loh Peguamcara dan Peguambela Tingkat 26, Menara Hong Leong, No. 6, Jalan Damanlela, Bukit Damansara, 50490 Kuala Lumpur. Lawyer For Defendant Cik Nurshiffa Balqish binti Ruslan bersama Cik Serena Ong Suan Huey Tetuan A.B. Ng & Associates Peguamcara dan Peguambela No. 10 & 12, Jalan Melaka Raya 28, Tmn Melaka Raya, 75000 Melaka.