(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. ... If the plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him. [9] As the plaintiff has satisfied these preliminary requirements, and this is not disputed by the defendants, the burden is now firmly on the defendants to show that there is a triable issue that does not justify summary judgment be entered against the defendants. If the defendants can show even one triable issue, this court will not grant summary judgment. But it has to be a genuinely triable issue. As made clear by the Federal Court in Voo Min En & Ors v. Leong Chung Fatt [1982] 1 LNS 47; [1982] 2 MLJ 241, it is insufficient for a defendant to raise an issue or any issue. The defendant must instead raise such issue as would require a trial in order to determine it”. [11] Similarly in the instant case, as the Plaintiff herein has satisfied the preliminary requirements under Order 14, it is now firmly on the Defendant to show that there is a triable issue that does not justify summary judgment to be entered against the Defendant. Evaluation & Findings of this Court [12] I shall next consider each of the issues raised by the Defendant in its affidavits, as repeated in the written submissions and highlighted in the oral submissions at the hearing, in resisting the summary judgment application. First Issue – The Plaintiff is not a party to the Agreement [13] As disclosed in affidavit evidence, apart from the Defendant, the other executing party who signed the same was, based on the rubber stamp details, one Mr Ng Eng Cheang, the Chief Operating Officer, Permanis Sandilands Sdn Bhd. Permanis Sandilands is the new company name for Etika Sdn Bhd. The Plaintiff is Etika Distributions Sdn Bhd. Thus, according to the Defendant, the Plaintiff is not a party to the Agreement, and therefore cannot take the benefit of the Agreement and sue the Defendant on the Defendant’s alleged breach of the same. Page 5 of 18 [14] However, the Plaintiff, through its legal manager had affirmed a reply affidavit explaining that, as shown in the relevant Form 49, Mr Ng Eng Cheang was a director of the Plaintiff at the material time, as well as its Chief Operating Officer. He was authorised to sign all commercial agreements for the companies in the group because Etika Distributions Sdn Bhd is a wholly-owned subsidiary of Etika Sdn Bhd. [15] In my view, there is no dispute that Mr Ng Eng Cheang was the person who signed the Agreement and he was at the relevant time a director and COO of the Plaintiff. I accept that the rubber stamp which referred instead to the parent company of the Plaintiff could have caused some confusion but the incontrovertible fact is that Mr Ng Eng Cheang was a director and COO of the Plaintiff, and thus cannot be said to be unauthorised, for he was the one who signed the Agreement meant to have been executed on behalf of the Plaintiff. [16] I accept that although not a good governance practice, because Etika Sdn Bhd is the holding company, it is usual for subsidiaries like the Plaintiff to get the name of the holding company be stated on the execution page of agreements entered into by the subsidiaries. There is thus no justifiable basis to turn this contention into an arguable issue. [17] The Defendant referred to the case of Rohani Binti Ghani v Telco & Post Berhad KL Trade Consortium [2011] MLJU 401 where a plaintiff’s case was dismissed because the plaintiff was ruled not to be a party to the relevant distribution agreement. However, the facts in the instant case before me are different. The individual who executed the Agreement for the Plaintiff was its director and COO at the material time. It is perhaps unfortunate that the rubber stamp which was affixed to the signing page referred to his position at the parent company but that does not alter the legal position that he had signed on behalf of the Plaintiff. [18] Further, a key evidence that fortifies this finding is that the first page of the Agreement plainly stated that the parties to the Agreement are the Defendant, being the “Partner” and Permanis Distributions Sdn Bhd (Co. No 770956-P) or “the Company”, which is, as stated earlier, the former name of the Plaintiff. [19] Furthermore, despite the Agreement having been signed on 16 February 2015, and the parties having pursued their business relationship pursuant to the Agreement since then, the Defendant has never raised any query pertaining to the identities of the contracting Page 6 of 18 parties until the present dispute. Thus this contention is likely to have been nothing but a convenient afterthought. It is not a triable issue. Second issue – the various delivery orders and tax invoices are disputed [20] The Defendant next argued that the delivery orders, delivery notes, load-sheet notes and tax invoices produced by the Plaintiff to support its summary judgment application are disputed, rendering the Plaintiff’s application herein unwarranted. However, this contention of the Defendant is short on substance. [21] In the first place, it is observed that the products delivered by the Plaintiff to the Defendant had all been acknowledged to have been received by the Defendant on the relevant delivery orders. The Defendant had identified the relevant delivery orders in respect of which the Defendant denied delivery of the products. [22] However, on closer examination of the affidavit in support of the Plaintiff’s application herein, affirmed by Anita Sheila Vijaindren on 18 April 2017 which exhibited copies of the delivery orders and other documents, it seems clear that these delivery acknowledgment could be shown in two categories. The first concerns the many deliveries made directly by the Plaintiff to the Defendant. Examples include exhibits ASV-4 to ASV-24, exhibits ASV-26 to ASV-31, exhibits ASV-33 to ASV- 38, and exhibits ASV-40 to ASV-45. All exhibited to the affidavit in support. All are delivery orders issued by the Plaintiff and bear the rubber stamp of the Defendant, together with the initials of the person who received the same and the date thereof, under the words “All Goods Above Received in Good Order and Condition” printed on the delivery orders. [23] These deliveries are also further substantiated by the tax invoices sent to the Defendant, copies of which can be found in exhibits ASV-25, ASV-32, ASV-39, ASV-46 and ASV-51 to the same affidavit, and copies of which had also been re-sent by email to the Defendant, as exhibited in ASV-52. [24] The second categories, so-called, were deliveries made by the Plaintiff not directly, but on behalf of the Plaintiff, by Linde Malaysia. This concerned the product known as CO2 Sure-glow G Size - 9kg. Again, it cannot be denied that the Defendant, via its representatives had acknowledged acceptance of the deliveries, as clearly shown in the various delivery orders issued by the Plaintiff, which enclosed delivery Page 7 of 18 notes issued by Linde Malaysia, on which the rubber stamp of the Defendant was affixed, together with the standard initials and date, all as exhibited in ASV-2, ASV-3, and ASV-47 to ASV-50. Furthermore, for this product delivered by Linde Malaysia for the Plaintiff, the relevant tax invoices referred to earlier are exhibited in ASV-25 and ASV-51. As such, the allegation against the deliveries made is untenable. There is no triable issue. Third issue - No Evidence of Appointment of Linde Malaysia to deliver products [25] The Defendant also questioned the status of Linde Malaysia on the arrangement between the litigants in the suit herein. Particularly on the point of the absence of evidence of its appointment by the Plaintiff to perform the delivery. I do not find any mystery in this. The Plaintiff is perfectly entitled under the Agreement to appoint a third party to help it make the requisite delivery to the Defendant. [26] The Plaintiff engaged Linde Malaysia for the delivery of CO2 Sure-glow G Size – 9kg. Since, as explained by the Plaintiff, that the Defendant did not have a business account relationship with Linde Malaysia, the relevant delivery notes from Linde Malaysia had been forwarded to the Plaintiff for settlement, which the Plaintiff now claim from the Defendant. [27] In order to put all beyond doubt, Linde Malaysia had also got its associate senior counsel to affirm an affidavit on 14 June 2017 confirming, among others, that the deliveries to the Defendant, as evidenced by the above mentioned exhibits were all undertaken by Linde Malaysia upon the request of the Plaintiff, and that the acceptance of the deliveries had been acknowledged by the Defendant as borne on the relevant delivery notes of Linde Malaysia referred to earlier. As such, the complaints raised by the Defendant doubting the appointment and role of Linde Malaysia are untenable, and do not give rise to any triable issue. [28] In an affidavit (stated as “affidavit bantahan”) affirmed by Wee Boon Chin, a director of the Defendant, on 21 June 2017, the Defendant sought to have the affidavit by Linde Malaysia not be accepted since it was filed after the expiry of the directions for the exchange of affidavits between the parties. Nevertheless I disagreed, for I see no prejudice has been occasioned to the Defendant especially since in that affidavit bantahan of the Defendant, the Defendant had Page 8 of 18 already deposed on matters which dealt with the averments contained in the affidavit of Linde Malaysia. Fourth issue – The claim amount is uncertain and the enforcement of the bank guarantee was wrongful [29] The Defendant’s argument on the difference in the amount claimed in the notice of application of this summary judgment (of RM1,880,731.38) and that in the termination notice (of RM4,265,235.64) is of little substantive worth. The one set out in the notice of application is clearly the updated amount, after deducting the bank guarantee amount, and sums paid by the Defendant as well as in view of credit notes after the sending of the termination notice. The case of Chin Wee Ming v Wong Pak Hock [2017] MLJU 137 referred to by the Defendant is of no assistance to its defence for in that case the invoices and vouchers tendered did not tally with the amount claimed, which is certainly not the case in this instant application. [30] Neither do I consider the contention about the calling upon of the bank guarantee by the Plaintiff being wrongful to be anything but unmeritorious. The Defendant claimed it was unlawful without elaborating why it said so. That surely would not do. Instead the clear terms of the Agreement in clause 8.2 (b) states that the Plaintiff shall be entitled to enforce the guarantee without any notice in the event the Defendant is in default of payment for the products. [31] I must emphasise that it is a basic rule in the law of contract that what have been agreed by contracting parties should be given effect to. The Federal Court in Michael C. Solle vs. United Malayan Banking Corporation [1986] 1 MLJ 45 (TAB 3 IOP) had ruled thus:- “The principles of construction to be applied to the undertaking are similar to those applied to an ordinary contract. The intentions of the parties are to be gathered from the language used. They are presumed to have intended what they said. The common and universal principle is that an agreement ought to receive that construction which its language will admit, which will best effectuate the intention of the parties, to be collected from the whole agreement.” [32] The Defendant cannot therefore be allowed to raise objection against the plain language of the Agreement which it had previously accepted in writing and benefitted from. In Malayan Banking Berhad vs. Chua Keng Leng t/a New Fortune Enterprise [1991] 3 CLJ 224 the High Court held that:- Page 9 of 18 “Parties ought to admit facts as to which there is no controversy. A defendant should not deny plain and acknowledged facts which it is neither in his interest nor in his power to disprove. In an action for a debt a mere denial of the debt is wholly inadmissible”. [33] Thus, these arguments of the Defendant cannot be said to have raised any triable issue. Fifth issue – The Defendant has no knowledge of the terms of the Agreement [34] The Defendant seems to suggest that it had no knowledge of the Agreement or at least the key terms of the Agreement as highlighted by the Plaintiff in its affidavit in support. This is affirmed as such by one Mr Wee Boon Chin, a director of the Defendant in his affidavit dated 8 May 2017. This averment is untenable. [35] In the first place, the Defendant never contended that it did not sign the Agreement. Regardless, the law is however settled on the effect of the execution of agreements. It binds the parties regardless of whether the parties have read or understood the contents. Thus it is immaterial even if the Defendants had not read, let alone understood, any of the terms of the Agreement, in the absence of any allegation of fraud or coercion. [36] I had the occasion to refer to this principle in the case of Hap Seng Credit Sdn Bhd v Mohamed bin A Ralim & Ors [2016] 10 MLJ 761, as follows:- “[46] I should, for completeness, add that the argument that the respondents had not been in the know of the transactions and that the first respondent having merely signed blank forms and did not understand English, and thus ought not to be responsible for the same is not only unsupported with evidence, but also not justified under the law. It is well-established in the law of contract that a person who is a party to a written contract is bound by the terms of the contract whether or not he understands the language in which it is documented, in the absence of fraud or misrepresentation (see Subramaniam v Retnam [1966] 1 MLJ 172). No allegation of fraud or misrepresentation had been raised, let alone evidenced in the instant case. In the case of UMW Industries (1985) Sdn Bhd v Kamaruddin Abdullah & Anor [1989] 2 CLJ Rep 619, the High Court observed pointedly that: As for the second defendant’s contention that he only signed blank guarantee forms, he has only himself to blame as the plea of non est Page 10 of 18 factum does not work in favour of a person who has shown himself to be negligent. The law cannot thus permit the respondents to be excused from the performance of their expressly stated promise as contained in a valid written agreement on the basis of this contention. The following passage from the case of Imbangan Utama Sdn Bhd v Lotan Engineering Works Sdn Bhd [2002] 2 MLJ 313; [2002] 8 CLJ 497 is no less instructive: It really takes a litigant of unusual temerity or cheerful insouciance to register a plea of non est factum, for such plea rarely if ever succeeds. There is a whole pack of legal cards stacked against such plea. As a defence or a cause of action the onus rests heavily and onerously on the party who alleges non est factum. The signer must establish his lack of competence due to illness or innate incapacity or defective education and he was not negligent or had acted nonchalantly or with want of care (see Saunders v Anglia Building Society [1971] AC 1004 (HL). And, he must further establish that he had thought that he was signing a document which was so radically or fundamentally or basically or essentially different in substance or in kind from the document signed (see also Polygram Records Sdn Bhd v Hillary Ang & Ors [1994] 3 CLJ 806 and Goh Jong Cheng v MB Melwani Pte Ltd [1991] 1 MLJ 482; [1990] 1 LNS 160)”. [37] Neither could the Defendant be entitled to rely on the defence or plea of non est factum because the Defendant had failed to specifically plead such defence. In any event, not an iota of evidence was proffered to establish non est factum (see also Fui Lian Credit & Leasing Sdn Bhd v Kim Leong Timber Sdn Bhd & Ors [1991] 2 CLJ (Rep) 614). [38] As such, the averment that the Defendant was not aware of the terms of the Agreement is entirely of no consequence. This argument does not raise any triable issue. Sixth issue – The Defendant did not receive any statement of accounts [39] The Defendant also raised, in its written submission the issue that it had never received any statement of account on its liability from the Plaintiff. This again is a contention bereft of merits. [40] Clause 21 of the Agreement on Notices clearly mandates a demand to be issued by the Plaintiff’s solicitor under paragraph 21.1.2. The letter of demand dated 20 February 2017 sent by the Plaintiff’s former solicitor had also enclosed a statement of account, as stated Page 11 of 18 earlier. It was sent by registered post, as permitted by Clause 21.1.3, and under Clause 21.2.1 is deemed to be received by the Defendant three business days after posting. Exhibit ASV-57 is the Pos Malaysia document entitled “Kiriman Banyak Barang-Barang Berdaftar” which is the affidavit evidence of the sending of the demand letter (and statement of accounts) to the Defendant by registered post. The document was dated 21 February 2017. Thus, contractually, the same must be deemed received by the Defendant on 25 February 2017. [41] Moreover, case-law authorities have also settled this point in clear terms. In the case of Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] 4 CLJ 175, the Court of Appeal held that proof of sending prepaid AR registered is sufficient and said as follows in respect of service or writ of summons by AR registered post:- “[20] In this instance, the plaintiffs had elected to serve the writ and statement of claim on this defendant by way of sending it by prepaid A.R. registered post. This defendant did not challenge that such process was never undertaken. Once this process was carried out, it is our view that there is no provision in law to say that the plaintiffs must also prove that the person so named in the post had received it. This opinion is shared by Suriyadi Halim J (as he then was) when he said in Pengkalan Concrete Sdn Bhd v. Chow Mooi & Anor [2003] 6 CLJ 326: In fact under sub-r. 1(1) of O. 10, nothing is indicated that the plaintiff must evidentially prove that the named person in the writ must be the very person who had received it ie, if it was sent by prepaid AR registered post. I therefore was satisfied that as in this case, if all the prerequisites were fulfilled, as the plaintiff had done so, the recipient being "Yanti" (not the name of the defendants) did not vitiate that service”. [42] The Federal Court has also earlier in Amanah Merchant Bank Bhd (formerly known as Amanah-Chase Merchant Bank Bhd) v Lim Tow Choon (through Official Assignee) [1994] 2 CLJ 1 held authoritatively as follows:- “Although the words “shall be deemed” in the above case was considered in the context of the statutory provisions, in our view, we can draw an analogy from this case that, in the present appeal, it is sufficient to prove the notice of demand by sending it through the post in an envelope addressed to the last known place of address of the defendant, and once this is established the deeming provision would apply as in the cases cited above.” Page 12 of 18 [43] It has also been ruled by the High Court in MBF Finance Bhd v Tiong Kieng Seng [2001] 4 CLJ 38 that if delivery is by post, showing proof of posting is sufficient to rely on presumption of service. Further, in any event, the Defendant did not show evidence of non-delivery of the registered letters. In the case of HSBC Bank (M) Bhd v. Wui Ling Timber (Bintulu) Sdn Bhd and Anor [2000] 8 CLJ 197, the High Court stated thus:- “Letter of demand was sent by registered post to an agreed address of the 1st respondent and deemed under cl. 21 to have been received by the 1st respondent. It is not enough for the 1st respondent to merely say they have not received it but they must go further to procure a letter from the postal authority to state that such a registered letter was not posted or delivered to the said address”. [44] Accordingly, the Defendant’s assertion on the non-receipt of the letter of demand and the statement of account is wholly unsustainable and devoid of merit. This is thus also not a triable issue. Other Considerations – The effect of statement of accounts [45] The Defendant raised the issue that it did not receive the statement of account. But it has been shown that the same had been sent to the Defendant, and the law would deem that the Defendant had received the statement of account. As a consequence of the Plaintiff sending the statement of account which is deemed received by the Defendant, Clause 28.1, which reads as follows, will come into play:-