(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 [see Order 14 Rules 3 and 4(1)].” [4] The leading and most oft quoted authority on O. 14 is the Supreme Court case of Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors. [1992] 1 CLJ(Rep) 14, where it was 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 Page 5 of 18 the other on 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 as not triable.” [5] In Safora SA v Ranhill Berhad [2012] 1 LNS 1112, the Court of Appeal referred to the following leading authorities and observed that: “Regarding the question of construction of a contract, Raja Azlan Shah J (as His Royal Highness then was) in Esso Standard Malaya Bhd v. Southern Cross Airways (Malaysia) Bhd [1972] 1 LNS 31; [1972] 1 MLJ 168 stated: “If one simply has a short matter of construction with a few documents, the court, on summary application, should decide what in its judgment is the true construction. There should be no reason to go formally to trial where no further facts could emerge which would throw any light upon the letters that have to be construed.” Page 6 of 18 In Malayan Insurance (M) Sdn Bhd v. Asia Hotel Sdn Bhd [1987] CLJ 182 (Rep) [1987] 1 CLJ 246; [1986] 2 MLJ, 183 the Supreme Court stated: “The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to the judgment.” Analysis of Issues and Finding [6] In regard to the first issue, the Defendant contends that as the L/A was not formally terminated the loan sum was not due and payable as yet. Therefore, that the present action was premature without the requisite termination. In support of this contention, the Defendant pointed out that clause 3.1 of the L/A provides as follows: “The parties agree that in the event the Borrower fails to repay the Loan Sum to the Lender on the Repayment Date or upon the earlier determination of this Agreement as provided in Clause 6 Page 7 of 18 hereof, the Borrower shall compensate the Lender for its opportunity cost at the agreed sum of RM45,000.00 only per month or any part there “Agreed Compensation” until the date the Loan Sum as well as the Agreed Compensation are both paid in full.” [7] And also that Clause 3.1 states this: “The Loan Sum shall become immediately payable in the event the Borrower shall become bankrupt or there is any petition filed or proceedings taken against the Borrower for bankruptcy or if there is any event or series of events whether related or not has or have not occurred which is in the opinion of the Lender (which opinion shall be final and binding) could or might affect or prejudice the ability of the Borrower of its willingness to comply with all or any of its obligation herein.” [8] In view of the aforesaid clauses, the Defendant contended that the L/A had never been or had yet to be, terminated by the Plaintiff and that the notice of termination issued by the Plaintiff’s solicitors was not a valid termination considering the right of the Defendant to repay the loan subject to the agreed interest being paid. Moreover, the Defendant had not received the notice of termination and neither had the Plaintiff produced Page 8 of 18 proof of service of the notice on the former. Hence, that without these conditions being met, this claim is premature and ought to be dismissed. [9] Having considered the Plaintiff’s reply to the above contention, I agree with the Plaintiff that the issue raised by the Defendant is misconceived and plainly a non-starter. Briefly, the terms of the L/A as to repayment are sufficiently clear and unambiguous. In particular, the L/A imposes deadline for repayment of the loan sum, i.e., on or before 31.10.2017. It was not in dispute that the Defendant did not repay the loan sum on or before the stipulated due date or at all. It is important to note that the L/A does not impose any requirement for the L/A to be formally terminated before any action can be brought to recover the debt from the borrower. Instead, what the Defendant is seeking to do is imposing conditions that do not exist in the L/A and importing into the L/A non-existent clauses. [10] Proceeding to the second legal issue raised by the Defendant relating to the Money Lenders Act, 1951 (‘MLA’), reliance was placed on Section 5(A) which provides as follows: “5(1) No person shall carry on or advertise or announce himself or hold himself out in any way as carry on or advertise or announce Page 9 of 18 himself or hold himself out in any way as carrying on the business of moneylending unless he is licensed under this Act.” [11] In further contending that the Plaintiff was not a body or an entity that was licensed under the MLA the Defendant also relied on the First Schedule of the MLA, particularly, paragraph 2A(1) under which the Plaintiff was not a body/entity exempted from the provisions of the MLA. And also on S. 15 of the MLA which states that: “15. No Moneylending Agreement in respect of Monies lent after the coming into force of this Act by an unlicensed moneylender shall be enforceable.” [12] In opposing the above contention, the Plaintiff contended that the MLA does not apply to the nature of the loan transaction between the Plaintiff and the Defendant. In support of this proposition, reference was made to the Court of Appeal case of Pan Global Equities Sdn. Bhd. v Taisho Co. Sdn. Bhd. [2006] 1 MLJ 158 where it was held that: “The real issue before the learned judge was the true nature of the relationship between the respondent and the appellants at the material time. And that relationship was one of a shareholder and his company. It was in its capacity as shareholder that the Page 10 of 18 respondent advanced monies to the appellants. This was therefore not a case of the respondent carrying on the business of money lending on the facts. It is common place in the corporate environment for shareholders or directors of a company to advance it funds at interest to tide it over difficult periods of financial hardship. Such transactions are necessary for keeping companies in a position to meet their debts as and when they fall due. If the courts proceed to treat these transactions as pure money lending within the Moneylenders Act 1951 ('the 1951 Act'), then no shareholder or director will ever be able to recover genuine advances albeit bearing interest made to his or her company during a time of want.” [13] And further that: “The 1951 Act, by its spirit and intendment was designed to protect individuals who because of their impoverishment were caught in the jaws of unlicensed lenders.” [14] Applying the principles as enunciated above and based on the instant facts and documentary evidence, the loan in this instance, as correctly submitted by the Plaintiff, was no more than a simple friendly loan. Page 11 of 18 The Plaintiff were not shown to have been engaged in a moneylending business. Considering the nature of a transaction, the MLA had no application here. As remarked by the Federal Court in Yeep Mooi v Chu Chin Chua & Ors. [1960] LNS 169 on moneylending transaction per se that did not amount to a business: “… The Ordinance is never intended to apply to an individual, or any member of the public who lends money even at interest, unless he does so as a business…” [15] For the presumption of moneylending business under S. 100A of the MLA to be invoked there must at the least proof of a single loan at interest having been given which the Defendant had failed to prove. The section provides that: “”10OA. Where in any proceedings against any person, it is alleged that such person is a moneylender, the proof of a single loan at interest made by such person shall raise a presumption that such person is carrying on the business of moneylending, until the contrary is proved.” [16] There was clearly, in the instant case, not shown that the Plaintiff had lent money to the Defendant at interest, not even proof of a single loan Page 12 of 18 at interest made by the Plaintiff to invoke the presumption under S. 100A, MLA. As is explicit in the terms of the L/A, there was no interest charged by the Plaintiff for the friendly loan to the Defendant, who, by mutual agreement, was required to merely repay the loan sum without having to pay anything extra. [17] The element of paying extra charges only arises if the Defendant fails to repay within the stipulated deadline, which is a form of penalty for non-compliance and does not tantamount to interest on the principal sum. It is only a transaction where a party charges on the interest loan that tantamounts to a moneylending transaction/agreement that would be rendered inadmissible under S. 15 of the MLA. [See Tan Aik Teck v Tang Soon Chye [2007] 5 CLJ 441]. [18] In a last ditch attempt to avoid liability, the Defendant raised a further issue of law under the Stamp Act, 1949 (‘SA’) by invoking section 52