besides a triable issue, there is some other reason that there should be a trial. [6] From case law authorities, I am mindful to heed some of the principles. The first principle that I am mindful to heed is the principle that when the parties assert certain facts or issues or reasons that bear on the merits of a summary judgment application, I am not bound to accept those Page 3 of 11 assertions just because the parties made them. I must evaluate the cogency of the assertion, and consider whether the assertion is tenable, or plausible, or reasonable. If the assertion is “equivocal or lacking in precision or is inconsistent with undisputed contemporary documents” or is “inherently improbable”, then I have the “duty to reject such assertion”, and consider the issue not triable: Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 (SC) at page 408; [1992] 1 CLJ 627; [1992] 1 MLRA 190. [7] In Bank Negara Malaysia (supra), the Supreme Court held— Under an O 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O 14 application. Thus, apart from identifying the issues of fact or law, the court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. [8] The second principle is that I must evaluate whether the facts or issues or reasons raised by D amount to a “fairly arguable defence” to the claim, such that I have a “reasonable doubt” against granting judgment summarily: Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 (SC); [1987] 1 CLJ 246; [1986] 1 MLRA 269. Page 4 of 11 [9] The third principle is that when I am deliberating on the facts or issues or reasons that D raises, the question that I am to determine is— are they bona fide triable issues i.e. issues that require determination by trial?—Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (CA); [1995] 1 AMR 622; [2000] 1 CLJ 503; [1995] 1 MLRA 48. [10] An application for summary judgment is defeated by D raising triable issues. In other words, D needs to demonstrate that a trial is required for P to prove its claim against D. [11] Put differently, just from an analysis of the parties’ respective pleadings and affidavits, as well as the documentary evidence exhibited— when I am not persuaded to bypass a trial to summarily enter judgment against D, then P’s summary judgment application must fail. Put conversely, if I am persuaded to bypass a trial to allow P’s claim, P’s summary judgment application should be allowed. [12] Yet another way of putting it is that it must be obvious to me that the D has no defence on the merits before summary judgment is granted. P’s CLAIM [13] P claims the outstanding sum due under a loan facility given to D, contracted by documents that include a Letter Of Offer (accepted by Defendant), a Loan Agreement, a Charge, and the Charge Annexure (Loan Documents). [14] D defaulted on the loan repayments, thus breaching the terms of the Loan Documents. P recalled the loan. P foreclosed on the charged property. The charged property was auctioned off. The sale proceeds Page 5 of 11 were applied to the outstanding sum under the Loan Documents. But there was still a shortfall. [15] P sued D in this suit for the shortfall. P’s claim is for approximately RM2.395 million. D’s DEFENCES [16] These are D’s defences. One—D has no knowledge about the Loan Documents. D puts P to strict proof that there was a contractual relationship between him and P. [17] Two—D never signed the Loan Documents. [18] Three—even if there is a contractual relationship between D and P, the loan sum was approximately RM1.918 million. After the charged property was auctioned off for the proceeds of approximately RM1.48 million, and that sum is deducted from the outstanding sum allegedly due, the alleged shortfall of approximately RM2.395 million is excessive. DEALING WITH D’s DEFENCES No knowledge about, and never signing, the Loan Documents [19] D asserts that he had no knowledge about the Loan Documents. He also alleges that he did not sign the Loan Documents. [20] First—I find that D does not plead that the signatures against his name in the Loan Documents, were forged, or that his signatures were fraudulently obtained, or that there was some manner of misrepresentation or undue influence. Page 6 of 11 [21] D merely pleads that he had no knowledge of the Loan Documents. This pleaded position compels the conclusion that feigning no knowledge of the Loan Documents is a bare, unparticularised and unsubstantiated denial. [22] Second—D’s address, as stated under oath in his affidavits, is the 600-F, MK 16, Jalan Batu Jantan, 11500 Ayer Itam, Pulau Pinang address, which is D’s address that P asserts it has on record, and to which communication was sent. I will refer to D’s address as the “600-F address”. [23] In the Letter Of Offer dated 15.2.2012, a Mr Koay Liang Kheng, of the 600-F address signed his acceptance of P’s offer. In the formal Loan Agreement dated 12.4.2012, similarly, a Mr Koay Liang Kheng of the 600- F address signed it. It is the same for the Charge and the Charge Annexure. A Mr Koay Liang Kheng of the 600-F address signed them. [24] Third—I am guided by the case law authority of Polygram Records Sdn Bhd v. Hillary Ang & 4 Ors (collectively known as ‘The Search’) Anor [1994] 3 MLJ 127 (HC); [1994] 3 AMR 2060; [1994] 3 CLJ 806; [1994] 2 MLRH 137, where the High Court held (at MLJ page 147)— …The general principle of law, of course, is that a party who signs a written contract is bound by the terms of the contract, except in the limited cases where fraud, undue influence, or misrepresentation may be established. This rule is so strict that even if a party to a contract has not read the contents of a contract, he is held to be bound by its terms. In the leading case of L’Estrange v F Graucob [1934] 2 KB 394, Scrutton LJ pronounced (at p 403): Page 7 of 11 When a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not. [emphasis added] [25] Fourth—besides him saying so, D has not produced any evidence, or any material on which an inference can be drawn, that he had no knowledge about the Loan Documents, or that he never signed the Loan Documents. [26] On the contrary, the loan was disbursed for D’s benefit and D made repayments towards the loan. The shortfall amount claimed was miscalculated [27] D disputes the amount of the shortfall claimed. D asserts that this issue is a triable issue. [28] First—the Loan Documents contain a conclusive evidence clause. Clause 22.5 of the Charge Annexure provides that a certificate signed by P’s manager as to the outstanding amount” is conclusive and binding proof of the amount due and payable by D to P. [29] P issued the Certificate Of Indebtedness, certifying that the outstanding sum due and payable by D as at 1.2.2021 was approximately RM2.395 million. That is the amount due as at 1.2.2021. D has to pay that amount. Page 8 of 11 [30] Second—the Federal Court recognised and gave full effect to a conclusive evidence clause and the Certificate Of Indebtedness issued under it in Cempaka Finance Bhd v. Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685 (FC); [2007] 1 AMR 525; [2006] 3 CLJ 544; [2005] 2 MLRA 736. [31] In Cempaka Finance (supra), the Federal Court held (at MLJ page 691) that— …The above dictum establishes firmly the conclusive nature and extent of a certificate of indebtedness. A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claim. [emphasis added] [32] Again, besides just saying so, D has presented no evidence, or even evidential material from which an inference can be drawn, about any miscalculation or error in the amount that is certified to be due and payable. [33] I am compelled to give effect to the conclusive evidence clause and the resultant Certificate Of Indebtedness. [34] Third—D’s simplistic reasoning—that the loan amount was approximately RM1.918 million, and after deducting the auction proceeds of approximately RM1.48m, the outstanding sum must be less than the shortfall of approximately RM2.395 million—has disregarded the element Page 9 of 11 of interest accruing. With the element of accruing chargeable interest, P certifies that the amount due was the RM2.395 million. [35] It was also because the charged property had two charges on it. D used the charged property to secure two loans, not one. The auction proceeds of approximately RM1.48 million were used to settle both loans. Only RM174K was available to be used to settle (reduce) this subject loan. P issued the Statement Of Account dated 16.8.2023, which demonstrated that the amount of approximately RM1.011 million was used to settle D’s other loan with P. CONCLUSION [36] I find that D’s Defence and affidavits in reply filed in the Order 14 proceeding, do not disclose that D has a “fairly arguable defence” to the claim. [37] I have no reasonable doubt that judgment should be entered summarily. [38] I am persuaded to bypass a trial and summarily enter judgment against D. [39] And I find that there are no bona fide triable issues that warrant a trial to determine them i.e. there is no triable issue that defeats P’s Order 14 summary judgment application. [40] I also find that there is no other reason there should be a trial of this claim. Page 10 of 11 [41] For these reasons, I allow P’s Order 14 summary judgment application, with costs of RM15K to be paid by D to P by 25.5.2024. Costs are subject to the allocatur. Dated: 2 July 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Plaintiff: Surein Wei [Messrs. Zaid Ibrahim & Co. (Pulau Pinang)] For the Defendant: Muhammad Zaid bin Abu Hassan Kusaheri [Messrs. Lee Saw & Co. (Kuala Lumpur)] Legislation referred to: