Ding Teik Kok v Sukumaran A/L Kandu (JA-22NCvC-136-09/2019)

1.

M SANTHI A/P MANIAM

MESSRS FARAHAIN SHARIF & CO …DEFENDAN-DEFENDAN (DALAM TUNTUTAN ASAL)

1.

M SANTHI A/P MANIAM (NO. K/P: 651123-01-6168) …PLAINTIF-PLAINTIF

DING TEIK KOK 27/03/2025 14:17:20

NUR FARAHAIN BINTI SHARIF (Beramal di bawah nama dan gaya Tetuan Farahain Sharif &

NUR AIN NABILAH BINTI MOHD SALIM (Beramal di bawah nama dan gaya Tetuan Farahain Sharif &

TETUAN FARAHAIN SHARIF & CO (Disaman sebagai suatu Firma)

PENDAFTAR HAKMILIK NEGERI JOHOR …DEFENDAN-DEFENDAN LEONG WEI HONG (NO. K/P: 900415-01-6025) …PIHAK KETIGA GROUNDS OF JUDGMENT Background facts [1] This is a case of alleged fraud in a sale and purchase agreement (“SPA”) entered into between the Plaintiff Mr. Ding with the 1st and 2nd Defendant on 3.9.2018 for the purchase of a terrace unit single story held under GRN 39660 Lot 26112, Mukim Pulai, Daerah Johor Bahru, Johore. The 1st purchase of the house by the 1st and 2nd Defendant (the current “owner” of this property and parties in the original suit) was on 14.9.2007 for a sum of RM170,000.00. The purchase was from the former owner Lau Lan Fah (referred to as “1st SPA”) by way of a bank loan obtained from OCBC Bank (see: the SPA of the 1st owner and D1 and D2 in enclosure 99 at page 18 pdf). [2] The story of the sale and purchase between the Plaintiff and D1 and D2 (referred to as “2nd SPA”), between D1 and D2 and the former owner (referred to as the “1st purchase”), the redemption sum of the said property amongst others appeared in bits and pieces all over. These facts must be assembled together to make a complete picture in the conveyancing perspective that is logical and can be comprehended. So, this is the story based on this Court’s observations and findings. [3] D3 was the legal firm who acted for the Plaintiff in the 2nd SPA. The sale was conducted via an agent who was named as the 3rd party in this suit. D3 admitted the 2nd SPA was signed between the Plaintiff with both D1 and D2 on 3.9.2018 and the agreement stamped on the same day. The transfer of the property was then completed on 11.2.2019. Vacant possession to be delivered to the Plaintiff on/before 1.3.2019. At the time of the sale, D1 and D2 said there was a redemption sum of RM21,000.00 unsettled by D1 and D2. [4] In fact, a sum of RM150,000.00 and RM70,000.00 were paid in cash by the Plaintiff and another RM150,000.00 obtained by loan with AmBank for the purchase (see: enclosure 99 at page 42 pdf). D1 and D2 in fact said arising from the arrears, the house was going under auction. With the settlement of the redemption sum, a discharged of charge by OCBC Bank was registered on 11.2.2019 (see: the registration of charge of OCBC and the discharge of charge in the Grant of Title of the said property in enclosure 99 at page 27 pdf.). [5] On the admission by D3 that D3 represented the Plaintiff in the 2nd SPA, it would result in the following facts being undisputed. The agreed purchase price was RM370,000.00 with earnest deposit of RM220,000.00 (see: enclosure 99 at page 85 the receipt of payment of RM150,000.00 issued by D3 for this sum with RM70,000.00. The sum was paid by the Plaintiff to D3 via his agent the 3rd party). The disputed fact is that the Plaintiff contended that he had paid the sum of RM370,000.00 with deposit of RM110,000.00 to the 1st Defendant but this was denied by D1 and D2. Instead, D1 and D2 had pleaded no knowledge of the 2nd SPA, had neither met with the Plaintiff nor received any payment from the Plaintiff. The Defence of D1 and D2 [6] The defence of the 1st and 2nd Defendant in short, is that their signatures on the SPA and form 14A have been forged. Yet, this Court observed that D1 and D2 in their Statement of Defence admitted they were present at D3’s office but said to be on the allegation that they were there to receive cash of RM55,000.00 handed by D3’s representatives. Surprisingly however, D1 contended that D3’s representative had disclosed that RM55,000.00 would be the interest sum payable by D1 for the loan sum. [7] The representatives of D3 would possibly be the 2 individuals pleaded by D1 to be Lock Jing Yuan (Lock) and Timothy (Teem Yap Meng) who, contended by D1 had made a loan offer to D1 of RM280,000.00 to facilitate the settlement of the arrears of the said property. This offer came with a condition that the property be transferred to the name of D1’s daughter Deswinnie a/p Sukumaran and a new housing facility under her name be obtained. [8] The Plaintiff had no knowledge or knew who these individuals are. However, based on D3’s story (in the original suit and through D2 Counsel named in the counterclaim), these agents were acting for the 1st intended purchaser of the said property known as Wong Chin Yuan. A deposit sum of RM110,000.00 was paid by her as purchaser but the sale did not proceed, as the bank loan application having been rejected (see: enclosure 99 at page 93 pdf). [9] This Court viewed the testimony by D1 as inadmissible as it amounted to hearsay with neither Deswinnie nor these 2 individuals were called to testify. In any event, the fact that D1 said he had not made any repayment to Mr. Lock renders D1’s story of an existence of a loan, improbable (see: D1’s cross-examination at page 72 pdf enclosure 163). In addition, nothing more was said of this loan by either D1 or D2, neither if Deswinnie was ever present to place her signature on the transfer except D1 contended that D3 had failed and/or refused to give a copy of the loan document to D1. D3 on the other hand, explained this not as a loan instead a redemption sum paid by the Plaintiff to the Bank. Delivery of vacant possession: rental, loan or redemption sum [10] D1 and D2 however, denied signing any SPA or form 14A for the transfer of the property to the Plaintiff, at D3’s office. They both contended that arising from this sum received by both D1 and D2, D1 and D2 asserted that these individuals had forced D1 and D2 to vacate the property and pay RM3,000.00 a month until March 2019 in return of the both the Defendants occupying the said property for that period. [11] This Court having been satisfied of the purchase by the Plaintiff via the 2nd SPA, had the benefit of perusing a letter dated 17.1.2019 from the agent named in this suit as 3rd party Leong Wei Hong. This letter was issued by the 3rd party to the Defendants (see: enclosure 99 at page 110 pdf.) where a rental sum of RM1000.00 monthly was imposed on the Defendants for a period of 3 months, this must have arisen with the failure by the Defendants to deliver vacant possession as per the clause in the 2nd SPA. The Defendants paid this rental sum (see: the Maybank transfer receipt at page 111 pdf. enclosure 99) [12] The suggestion by the Plaintiff that there was failure on D1 and D2 to deliver vacant possession is true supported by the fact coming from D1 and D2 themselves that the house was in arrears. There was evidence to support this as from D3’s pleading, a sum of RM21,000.00 remain as the outstanding sum (known as the redemption sum owing to OCBC Bank). The sum of RM21,000.00 is consistent with the Plaintiff’s case that further payments were made on 25.10.2018 of RM21,000.00 to settle the arrears. [13] A sum of RM130,659.65 was said to be paid by the Plaintiff to the chargee of the said property that is the OCBC Bank. This explains why the so call loan being the balance sum of RM280,000.00 was never paid to the Defendants but instead was transferred direct to OCBC Bank. With this payment to address the arrears on the loan of the house, the transfer of this property to the Plaintiff was completed on 11.2.2019 via submission number 8258/2019 (see: letter from OCBC Bank to D3 dated 19.10.2018 “Redemption Statement Cum Undertaking” for the said property in enclosure 99 at page 52 pdf). [14] It is crucial to note that the Plaintiff was never present before D3 when signing the 2nd SPA as it was done through the agent 3rd party appointed by him. Although there is no restriction in term of the signing of the 2nd SPA by the Plaintiffs and both D1 and D2 not done before an Advocate and Solicitor of the High Court, however, on the signing of form 14A, this in fact is a breach of the declaration contain in the said form. However, to this Court’s view, it did not render the transfer as invalid as all the surrounding facts and circumstances point to only one conclusion that D1 and D2 wanted to sell the property. It would only be invalid if it can be shown that the signatures of the Defendants were forged. [15] These agents are the individuals that had met with D1 and D2. They were in fact present before D3 that resulted in the agents being in custody of a copy of the earlier SPA. As to the signatures of D1 and D2 on the 2nd SPA and form 14A, these documents were placed before the respective parties to the 2nd SPA for their signatures. With the exception of the Form 14A, is common practice albeit one that may possibly transgress the conveyancing good practice, that agents being permitted to have custody of these documents to facilitate smooth handing down by the parties outside D3’s premise, of placing their signatures on these documents at their respective free and convenient time. [16] The follow-up documents to be signed by D1 and D2 such as the “Discharge of Charge” and the delegation of the collection of the “Original Title Deed” to D3 authorizing D3 to do the same, is a standard conveyancing practice hence formed the basis why no explanation was given to D1 and D2. Hence, it explains why upon receiving the notice from D1 & D2’s lawyer of the alleged forgery, 2 police reports were lodged by D3 (see: enclosure 99 at page 56 and 58 of “CBODs” pdf.) stating their belief that the “SPA” and “form 14A” documents were falsified but not these other documents. To the contrary, the Defendants themselves testified that they did sign some documents when they were at D3’s premise but said to be loan documents. [17] D1 and D2 in their witness statements, admitted their intention was to obtain a loan to pay the arrears of housing loan and debts. Yet, no loan agreement was tendered as it was alleged that D3 refused to hand them a copy. However, no further questions were asked by D1’s own Counsel as to which Bank that was providing the said facility. Although they denied signing the 2nd SPA and form 14A but with the admission of their purpose was to settle the arrears, this explain why they were at D3’s office as otherwise, D1 and D2 themselves have no reason to justify their presence there as D3 is not a Bank that can provide banking facilities. The outstanding sum said by D1 in his witness statement being RM43,040.57 is a big sum, is a sum owing to OCBC Bank, no doubt. [18] OCBC Bank in fact had issued a letter dated 27.12.2018 to D3 and carbon copied to D1 seeking for the Defendants’ presence at the Bank together with their MyKad Biometric Verification to verify the authenticity of the documents. This, to this Court’s view must surely be inclusive of the verification of the Defendants’ signatures (see: enclosure 99 at page 109 pdf). Based on their oral testimonies, D1 and D2 admitted they were requested to be present at the OCBC Bank and they were in fact present. [19] As such, there is no other fact to suggest their presence at the Bank was for some other purpose and not this. D1’s answer was that he was there to do the thumbprint as he was under the impression that there was already a change to the daughter Deswinnie’s name. D1 even went further to suggest that he had sought the change of the land status to Deswinnie from the officer of the Bank who said “ya, ya, ya…”. This Court ruled this inadmissible being hearsay. Expert witness on the signatures of D1 & D2 [20] The Defendants in proving their defence, attempted to rely on the expert witness SD1 the handwriting expert to prove their signatures were forged, her affidavit in enclosure 105. Unfortunately, the handwriting expert’s testimony from the report and having been challenged by way of cross-examination, results with it being inconclusive. The documents with D1 and D2’s signatures suspected to be forged are the following: “i. The 2nd SPA itself dated 3.9.2018; ii. Letter of Undertaking: Sale and Purchase Agreement ... Loan: RM150,000.00” iii. Letter of Undertaking and Confirmation on Differential Sum Property … iv. Letter of Authorization for Discharge of Charge/Perfection of Charge/Transfer/Redemption Statement cum Letter of Undertaking … v. Form 14A.” [21] These disputed documents were compared with 5 specimen signatures of D1 and D2 taken on 3 pieces of papers on 4.2.2021, “Guards Incorporated - Buku Laporan Harian Pos” dated 17.8.2019 to 12.9.2019 with D1’s 10 signatures in it as specimen. The result of SD1’s analysis on signature of D1 on the 2nd SPA dated 3.9.2018 was found not authored by D1 that is D1 is not the maker of the said signature, in the original version of the report the findings are stated as follows: “i. “Tandatangan ‘Sukumaran a/l K Kandu’ pada “Sales and Purchase Agreement” bertarikh 3.9.2018 tersebut yang dipersoalkan bukan ditulis oleh penulis specimen (Sukumaran a/l K Kandu)”; (this in reference to signature marked as QA-1). ii. “Tandatangan ‘Sukumaran a/l K Kandu’ pada: a. Re: Letter of Undertaking Sale and Purchase Agreement; b. Re: Letter of Undertaking and Confirmation of Differential Sum; c. Letter of Authorisation for Discharge of Charge / Perfection of Charge / Transfer / Redemption Statement cum Letter of Undertaking.” mengandungi tandatangan ‘Sukumaran a/l K Kandu’ yang dipersoalkan telah menunjukkan beberapa perbezaan dalam tulisan tangan daripada penulis spesimen (Sukumaran a/l K Kandu) tetapi tandatangan tersebut adalah tidak jelas dan saya tidak dapat membentuk pendapat terhadap ketulenan tandatangan-tandatangan yang dipersoalkan tersebut”; (this would be in reference to signatures marked as Q2A-Q4A) iii. “tandatangan Sukumaran a/l K Kandu pada borang 14A tersebut yang dipersoalkan telah menunjukkan perbezaan dari segi ciri-ciri tulisan tangan, dan saya berpendapat bahawa ia berkemungkinan tidak bukan tulisan penulis specimen (Sukumaran a/l K Kandu); (this would be in reference to signature marked as Q5A) iv. Tandatangan-tandatangan “M Santhi a/p Maniam” yang dipersoalkan pada kesemua dokumen-dokumen di atas telah menunjukkan beberapa perbezaan dari segi ciri-ciri tulisan tangan daripada tandatangan specimen penulis (M Santhi a/p Maniam), tetapi saya tidak dapat membentuk pendapat tentang ketulenan tandatangan-tandatangan yang dipersoalkan tersebut atas ketiadaan specimen tandatangan semasa (contemporaneous); (This would be in reference to signatures marked as Q1B-Q5B).” [22] When examined orally by counsel for D1, SD1 again repeated her finding on “Form 14A” signature marked as Q5A to be “these questioned signature1 was probably not written by the writer of the specimen (Sukumaran a/l K Kandu). When question was posed on the 2nd SPA signature marked as Q1A, she expanded her finding and said (as transcribed in the NOE) “the questioned signature was probably written because I found significant difference also probably not written by the writer of the specimen”, contrary to what was stated in her report her finding with absolute certainty “tandatangan dipersoalkan bukan ditulis oleh penulis specimen”. When asked further, SD1 said arising from the limitation of the signature samples, “probably not written” is a level lower than “not written”. [23] On the signature samples, SD1 when cross-examined, agreed that as there was no specimen sample for the year before as required by the Chemist’s Guideline for the year before and the year after of the questioned document date, hence her examination was limited. To this Court’s view, the examination being limited would encompass her observation and analysis of the questioned signature that gave rise to uncertainty as can be seen in the above paragraph of this judgment. 1 This Court is of the view the word “these questioned signature” should read “this questioned signature” as only one signature of Sukumaran a/l K Kandu was found on the 2nd SPA marked as Q1-A. [24] The significance of the specimen sample for the year before can be seen when SD1 in her cross-examination, agreed that she was unable to come up with an opinion of D2’s (wife) signature as there was absence of signature sample for the year 2017 being a date prior to the questioned document date that is the 2nd SPA which was dated 3.9.2018. Even on the questioned signature Q5A (questioned signature of D1 on Form 14A), SD1 said she may have changed her level of opinion if not for the limitation that is the absence of the said samples for the year prior. In short, if there are more specimens of the signature available, she would come up with a different view. [25] This explains why when cross-examined, she was unable to come to a definite certainty on her findings and her conclusion based on her oral testimony on Q1A was settled at “probably not written”. This, to this Court’s view diminishes her conclusion stated in her written report exhibit “A-2” that the signature was not written by the author of the specimen (see: para 19(i) of this Grounds of Judgment above). As the use of the word “probably” in her oral testimony which is of a lower level than “not written” must mean without absolute certainty, a 50:50 scenario. Findings by this Court and Conclusion [26] One would argue that the best evidence rule would be D1 and D2 themselves to say if they in fact did sign these documents. This Court had perused their testimonies and found as a matter of fact, D1 in his examination in chief when referred to this signature marked as Q1A admitted the signature “it looks like mine”, although he then denied signing it. [27] With other available evidence produced during the trial being the charge to OCBC Bank and this existed during the 1st SPA itself with the former owner, the admission by D1 of their presence at D3’s office which this court had rejected was for a loan, the admission by D1 of him in arrears of the house loan, D1’s payment of the 3 months rental of his own house and this during the period vacant possession was supposed to take place, D1’s admission he was present at OCBC Bank on that material date, all these in total only means D1 had failed to refute the fact that a sale had taken place with the Plaintiff. For these reasons, in addition to SD1 handwriting expert’s own uncertainty, this Court ruled the expert’s findings on D1’s signature as inconclusive. [28] Added with the absence of any other evidence to support D1 and D2’s defence of a loan and change of name to Deswinnie (daughter); the inconclusive evidence of the handwriting expert, it only means the defence of D1 and D2 of a forged 2nd SPA and Form 14A did not meet the degree of a balance of probability, it exist as a mere allegation without being substantiated by any evidence required of the civil standard. [29] For these reasons also, the counter-claim of D1 and D2 is dismissed. In the case of Federal Court in Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd, [1985] 1 MLJ 157, [1985] 1 CLJ 62 where Tun Salleh Abbas CJ said as follows: "What then is a counterclaim? A counterclaim on the other hand is also a cross-claim which a defendant has against a plaintiff but in respect of which the defendant can bring a separate action against the plaintiff if he wishes to do so. Thus, to all intents and purposes a counterclaim is a separate and independent action by the defendant, which the law allows to be joined to the plaintiff’s action in order to avoid multiplicity or circuity of suits”. [30] This Court takes the view that if a separate suit had been brought by D1 and D2 with them now taking the position as Plaintiff against the current Plaintiff now made as D1, maintaining the same parties named as D3 and D4 in this suit as the respective Defendants with or without the 3rd party, with the fact that D1 and D2 having admitted receiving the letter from OCBC Bank, the duty would certainly be on D1 and D2 to call the OCBC officer as witness to support their counter-claim. [31] This is because D1 and D2 would want to show the instruction given for the change of the name to Deswinnie took place otherwise it is merely hearsay and to address the issue on arrears outstanding by D1 and D2 with OCBC said payments were made by them as stated in their witness statement. Hence, the documents and particularly this letter that were categorized in Part ‘C’ of the Common Bundles of Documents enclosure 99 would rest on the shoulder of D1 and D2 to call the OCBC officer to prove their assertion which is now an admission as per their witness statement. [32] In Yeo Ing King v Melawangi Sdn Bhd [2016] 5 MLJ 631, the Court of Appeal adopted the High Court decision in Mohd Nazari Ab Majit v Tan Keo Hock & Anor [1999] 1 CLJ 601 and which held as follows: “Documents are either proved by witnesses or marked on admission. When it is marked on admission without reservation, the contents are not only evidence but are taken as admitted the result being, the contents cannot be challenged either by way of cross-examination or otherwise. … In respect of documents marked on admission by dispensing with formal proof, the contents are evidence, although the party admitting does not thereby accept the truth of the contents and is free to challenge the contents by way of cross-examination or otherwise”. [33] This Court noted of another Court of Appeal decision in Tiow Weng Theong v Melawangi [2019] 2 CLJ 655 and a more recent Court of Appeal decision in Civil Appeal No. W-02(W)-1746-10/2023 Thiagarajan s Rengasamy & 3 ors v Sri Ganes Palaniapan on categorization of documents in Part A and the meaning that follows with the categorization. The issue here is slightly different in that who holds the burden to call a particular witness that sees the particular document categorized in Part C, despite there being an admission on the facts and contents of the same. [34] To this Court, in the absence of any other explanation as to why D1 was present at OCBC Bank, the admission amounts to D1 and D2 not disputing the authenticity and contents of the said letter as to the purpose he was there. The said document hence, ought not to be placed in Part C. This is based on O 34 r2(2) Rules of Court 2012 that provides as follows: “Pre-trial case management when directed by the Court (O. 34, r. 2)

(1) Without prejudice to rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial case management relating to the matters arising in the action or proceedings.

At a pre-trial case management, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with such information as it thinks fit, and the appropriate orders and directions that should be made to secure the just, expeditious and economical disposal of the action or proceedings, including—

(a); [Deleted by P.U. (A) 351/2020]

the period within which the plaintiff is to file a bundle of pleadings consisting of one copy of each of the following documents, bound up in proper chronological order and endorsed thereon the names, addresses and telephone numbers of the solicitors for the parties or, in the case of a party who has no solicitor, of the party himself:

the writ; and

(ii) the pleadings (including any affidavits ordered to stand as pleadings), any notice or order for particulars and the particulars given; I the period within which the parties are to file a bundle of all documents that will be relied on or referred to in the course of the trial by any party, including documents referred to in the witness statement of a witness;

the contents of the bundle of the documents referred to in subparagraph I shall be agreed on between all parties as far as possible and this bundle of agreed documents shall be filed by the plaintiff and marked as Part A; I if the parties are unable to agree on certain documents, those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the plaintiff and marked as follows:

Part B – documents where the authenticity is not disputed but the contents are disputed;

(ii) Part C – documents where the authenticity and contents are disputed; …” [35] D1 did not deny receiving this letter and further had made this admission of his presence in OCBC Bank. It ought to be in Part B the least, but not C as D1 had deposed facts that relates to OCBC Bank in his witness statement. The non-calling of OCBC Bank as witness for D1 moved this Court to conclude that the presence of D1 at OCBC Bank on that date was to address the arrears and the verification of his identity. [36] This added further by the fact that the handwriting expert was unable to make any determination on D1’s signature on the “Letter of Authorization” dated 13.9.2018 (see: para 19 (ii) of this judgment). However, the authenticity of the D1’s signature in the letter of “Appointment of Solicitor for Discharge of Charge” dated 6.11.2018 containing D1’s signature (see: enclosure 99 at page 100 pdf.) which reference was made in this OCBC Bank letter dated 27.12.2018 (see: enclosure 99 at page 109 pdf.) was not disputed and not sent for analysis by the handwriting expert. [37] The end result is there was a discharge of charge as registered in the Grant of Title. This being the case, the totality of evidence with this Court having ruled the handwriting expert’s evidence as inconclusive and parts of D1’s testimony being hearsay thus inadmissible, does not support any proof of the counter-claim by D1 and D2. The theory of a conspiracy exiting between the Plaintiff and other Defendants and agents named by D1 not proven. This results in a dismissal of D1 and D2’s defence and counterclaim. [38] The Plaintiff’s relief is allowed for vacant possession of the said property be delivered to the Plaintiff within 14 days from the date of judgment with all other claims and counter-claim be dismissed. -Signed- (NURULHUDA NUR’AINI BINTI MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 27.03.2025 COUNSEL For the Plaintiff: K S Lim Messrs. S K Song Advocates & Solicitors 75A, Jln Mutiara 1/9, Tmn. Mutiara Mas 81300 Skudai Johor For the Defendants (D1 & D2): Dinesh Praveen Nair a/l Krishnan Kvuavn Messrs. Dinesh Praveen Nair Advocates & Solicitors C3-3-13, Solaris Dutamas Jalan Dutamas 1 50480 Kuala Lumpur For the 3rd Defendant: Sharifah Hazirah Syed Hashim Messrs. Vin Sa Ian Advocates & Solicitors Unit 6.14, 6.15 Level 6, Plaza DNP No. 59 Jln Dato’ Abdullah Tahir 80250 Johor Bahru For the 5th Defendant: Mohamad Zulfadhli bin Tuah Pejabat Penasihat Undang-Undang Negeri Johor Aras 2, Bangunan Dato’ Jaafar Muhammad Kota Iskandar 79100 Iskandar Puteri For the Third Party: M K Saw Messrs. Teo, Saw & Partners Advocates & Solicitors 83-01 Jln Sagu 18, Taman Daya 81100 Johor Bahru