Gan Kok Hwa v Loo Chooi Ting (WA-22NCC-159-04/2021)

The application made by the Plaintiff in enclosure 7 is for summary judgment pursuant to Order 14 Rule 1(1) of the Rules of Court 2012 for the face value of a dishonoured cheque.

The Plaintiff, one Pembinaan Makmur Teguh Sdn. Bhd. (“PMTSB”) and the Defendant were shareholders in a company known as Builtamont Development Sdn Bhd (“the Company”).

The Plaintiff and PMTSB sold all their aggregate of 250,000 shares in the Company to the Defendant for a sum of RM2,200,000.

As agreed by the parties, the Defendant is to make payment for the shares by issuing two (2) Hong Leong Bank cheques to the Plaintiff as follows: 2

Cheque No. 469176 dated 26.9.2020 for a sum of RM500,000; and

(ii) Cheque No. 469178 which is a postdated to 27.3.2021 for a sum of RM1,700,000.00. [5] The 1st cheque was good for payment whilst the 2nd cheque when presented for payment was countermanded. [6] The Plaintiff’s solicitors on 5.4.21 gave notice of dishonour to the Defendant’s solicitors and then filed this action; the Plaintiff’s cause of action against the Defendant is premised on the Defendant’s dishonour of a cheque issued by the Defendant to the Plaintiff. The Defendants’ case [7] In resisting summary judgment, the Defendant’s contentions in essence are:

there was a failure of consideration in that the cheque was countermanded by the Defendant with the Plaintiff’s full knowledge. Even with such knowledge, the Plaintiff proceeded to deposit the cheque;

(ii) in early 2021, via an audit made by Ms. Chan Moi Fong, the Assistant Manager of Account Department, it was discovered that there were expenses incurred between 2015-2020 by the Company in the sum of RM2,573,978.58 and these 3 expenses were borne solely by the Defendant as the 75% shareholder; the Plaintiff and PMTSB as 25% shareholder ought to bear their portion in the sum of RM643,494.65; the Defendant “agree” to set this sum off from the 2nd tranche of the purchase price of the shares and had requested for return of the cheque for sum of RM1,700,000 and will reissue a cheque for a sum of RM RM1,056,505.35 instead;

(iii) the Plaintiff has no right of statutory recourse under the Bill of Exchange Act 1949 ( “the Act”) ;

(iv) no notice of dishonour as required by s.48 and s. 49 of the Act was given; and

as such, the Defendants urged upon this Court that there is a good reason to the contrary as to why the cheque was dishonoured; there are triable issues and the summary judgment application should be dismissed. Court’s analysis and decision [8] The Federal Court in National Company For Foreign Trade v Kayu Raya Sdn. Bhd. [1984] 2 MLJ 300; [1984] 2 CLJ 220 held that once the Plaintiff (as in this case) having satisfied the preliminary requirements that the statement of claim has been served on the Defendant who has entered an appearance, and the Plaintiff’s affidavit in support of the Order 14 application has been properly filed pursuant to 0.14 r 2 ROC 2012, a prima facie case has been established by the Plaintiff and he becomes entitled to judgment, the burden then shifts to the Defendant to satisfy the Court why judgment should not be given against her. 4 [9] Mohamed Azmi SCJ in Bank Negara Malaysia v. Mohd Ismail & Ors[1992] 1 MLJ 400; [1992] 1 CLJ 14 (Rep) said: "In our view, basic to the application of all those legal propositions, is the requirement under Order 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court." [10] The definition of a bill of exchange is found in s. 3(1) of the Act: “A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to, or to the order of, a specified person, or to bearer.” [11] Section 73(1) of the Act defines a cheque as “a bill of exchange drawn on a banker payable on demand”. Subsection (2) provides that the provisions of the Act applicable to a bill of exchange payable on demand apply to a cheque. It is trite that a cheque is a specie of a bill of exchange. If authority is needed, I would refer to the Court of Appeal decision in Kum Hui Bing v Premium Plaza Sdn Bhd [2018] MLJU 979; [2018] 6 AMR 113: “[23] At the outset it is noteworthy that the cheque is a specie of a bill of exchange which is a negotiable instrument. Historically the bill of exchange was developed to ease commercial transactions. While all negotiable instruments are contracts in writing and the law relating to contract applies to them, they are subject to certain requirements. Thus, a cheque has certain unique characteristics that is distinctive of a bill of exchange. In this respect there are certain exceptions to the common law requirements of contract that is statutorily provided by the Bills of Exchange Act, 1949. In particular, while common law requires that consideration must move from the promisee, there is no such requirement in a valid bill of exchange.” 5 [12] S. 47 of the Act provide that a cheque upon presentation that is not accepted, refused for payment or payment cannot be obtained is considered to be dishonoured. In such an event of dishonour of the cheque, subsection (2) expressly confers an immediate cause of action by the holder (in this case the Plaintiff) against the drawer of the cheque (the Defendant in this case) when the cheque is dishonoured. S. 47 reads: “47 Dishonour by non-payment

A bill is dishonoured by non-payment—

when it is duly presented for payment and payment is refused or cannot be obtained; or

when presentment is excused and the bill is overdue and unpaid.

Subject to this Act, when a bill is dishonoured by non-payment, an immediate right of recourse against the drawer and indorsers accrues to the holder.” [13] Pursuant to s. 2 of the Act, the Plaintiff in this case is holder of the cheque: “2 Interpretation In this Act, unless the context otherwise requires— … “holder” means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof;” [14] Having considered the pleadings and affidavits of the parties, I find no substance in the Defendant's contention that there was 'failure of consideration' which the Defendant argued stems from the fact that the cheque has been countermanded by the Defendant with the Plaintiff’s full knowledge, and even with such knowledge, the Plaintiff proceeded to 6 deposit the cheque. These to me are not triable issues at all in view of s. 30 and s. 55 of the Act which read as follows: “Presumption of value and good faith

(1) Every party whose signature appears on a bill is prima facie deemed to have become a party thereto for value.

Every holder of a bill is prima facie deemed to be a holder in due course; but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill. 55 Liability of drawer or indorser

The drawer of a bill by drawing it—

(a)engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken;

(b)is precluded from denying to a holder in due course the existence of the payee and his then capacity to indorse.” [15] Under s. 30(1) of the Act, every party (includes in this case the Defendant as drawer of the cheque) whose signature appears on a bill is prima facie deemed to have become a party thereto for value. [16] The Defendant as the Drawer of the cheque has the legal burden to prove that there was failure of consideration for her cheque – per Thomson CJ in Ong Guan Hua v Chong (1963) 29 MLJ 6: 7 “In the first place what we are dealing with is not an action on an agreement which is set up as a contract, it is an action on negotiable instruments. The difference which is important here is that in an action based on a contract it is for the plaintiff to prove the consideration. In an action on a negotiable instrument, however, consideration is presumed and it is for the maker or the endorser of the instrument if he wishes to defend the action to prove that there was no consideration.” [17] In my respectful view, the Defendant’s allegations of facts that there was a ‘failure of consideration’ when considered closely, failed to rebut the prima facie presumption that the Defendant is a party thereto for value or that the Plaintiff is a holder for value. The Defendant’s ‘failure of consideration’ contention is also of no substance as I find firstly, the cheque that the Defendant issued to the Plaintiff was supported by consideration because that cheque was meant to discharge the Defendant’s obligation to make payment to the Plaintiff and PMTSB under the agreement for the sale of the shares in the Company. As such, the Plaintiff was a holder for value in respect of the cheque under s. 27 (1) (b) of the Act, and the Defendant was liable to the Plaintiff for the sum of RM1,700,000 should the cheque be dishonoured. S. 27 of the Act reads: “Value and holder for value

(1) Valuable consideration for a bill may be constituted by-

any consideration sufficient to support a simple contract;

an antecedent debt or liability. Such a debt or liability is deemed valuable consideration whether the bill is payable on demand or at a future time.

Where value has at any time been given for a bill the holder is deemed to be a holder for value as regards the acceptor and all parties to the bill who become parties prior to such time. 8

Where the holder of a bill has a lien on it arising either from contract or by implication of law, he is deemed to be a holder for value to the extent of the sum for which he has a lien.” [18] I am satisfied that the cheque was drawn by the Defendant for payment of her “antecedent debt or liability” to the Plaintiff under the share sale agreement. As such, there is sufficient "valuable consideration" of the nature contemplated by para (b) of s 27 (1) of the Act to support the Plaintiff’s claim against the Defendant as drawer of the cheque. [19] Secondly, this arid defence cannot be sustained as the evidence show it was agreed between the parties pursuant to the share sale agreement that the Plaintiff and PMTSB shall cease to be responsible for all outstanding payments or debts of the Company. Messrs Tee, Ooi & Partners’ letter dated 28.08.2020 at paragraph 3.2, stated plainly “our Client shall cease to be responsible for all outstanding payments or debts of the Company (if any).” This condition was accepted by the Defendant through her solicitor Messrs Y.C. Wong’s letter dated 02.09.2020 where they replied at paragraph 4 to state “paragraph 3.2 of your letter is agreeable by our client.” [20] In attempting to foist this sum of RM643,494.65 just 2 weeks before the due date of the cheque as “expenses incurred by the Company” on the Plaintiff through the Defendant’s solicitor’s letter of 9.3.2021 which stated that the Defendant “has agreed to set off the amount of RM643,494.65” from the amount of RM1,700,000.00 being the second tranche of the purchase price of the shares, it is my view that there is no supporting evidence produced by the Defendant to substantiate the amounts claimed. I am not satisfied the Defendant’s bare assertions are to be given any weight. Bare assertions do not constitute triable issues 9 nor a bona fide defence - Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363 at 367; [1995] 2 AMR 1655 at 1659-

The parties were represented by their respective solicitors when the terms of sale of the shares were negotiated and agreed upon. If indeed there was an understanding that the Plaintiff and PMTSB were to bear their portion of such “expenses of the company”, it could have been easily reduced in writing. The Plaintiff denied there was such an understanding. More on this alleged “understanding” later. [21] On the question of resolving disputes through affidavit evidence, it is trite law that if allegations are made in affidavits by one party and those allegations are credibly denied by the other party’s affidavits, then in the absence of oral evidence or cross examination, the judge must ignore the disputed allegations and decide the matter by consideration of the undisputed facts - Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 MLJ 433 and Sykt. Telekom Malaysia v. Business Chinese Directory Sdn Bhd [1996] 3 MLJ 692. [22] It is significant to note that the Defendant did not affirm any evidence on oath; she was a direct party to the share sale and fully conversant with the facts. Her omission to affirm any affidavit stupendously raise the eyebrows. This alleged “understanding” being such an important aspect of the case, the Court is entitled to expect far more satisfactory evidence. As a party to the action, there is no reason as to why the Defendant did not care to give any evidence; the court will normally draw an adverse inference - Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751. Instead, Ms Chan Moi Fong, the Assistant Manager of the Account Department affirmed the affidavit to oppose the summary judgment, alluding to the alleged “understanding” in paragraph 7.4 of her 10 affidavit. O. 41 r. 5(1) of the ROC 2012, provides that an affidavit may contain only such facts as the deponent is able of his own knowledge to prove. Although O. 41 r. 5(2) provides for an exception where an affidavit sworn for interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof, an application for summary judgment is to enter final judgment in the action which is not an interlocutory proceeding for the purpose of O. 41 r. 5(2). In the instant case, Ms Chan‘s averment to the alleged “understanding” between the Plaintiff, PMTSB and the Defendant, of which she did not say she was privy too, then the statement on the alleged “understanding” which is not in writing, is hearsay evidence, inadmissible and ought not to be given weight. Critically, it is not even stated in her affidavit that she was authorised by the Defendant to affirm the affidavit opposing summary judgment. [23] I find that the contemporaneous documents and undisputed facts in relation to the price arrived and delivery of the cheques underscore the inherent implausibility of the Defendant’s bare contentions. Indeed the importance and superiority of contemporaneous documents cannot be over emphasised as made clear by the Federal Court in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229. Even if the Defendant had allegedly funded these amounts as “expenses of the Company”:

she has claimed these amounts in her Counterclaim which is a separate and independent action by the Defendant - Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157; [1985] CLJ Rep 242;

(ii) the Defendant’s counsel’s argument that these are outstanding payment or debt ‘to’ the Company not included in 11 the terms of the share sale does not in my respectful view, make one whit of difference; for if so, then the Company is the proper claimant for such expenses and not the Defendant. [24] As such, I agree with the assertions of learned counsel for the Plaintiff that in attempting at the eleventh hour to foist these alleged expenses of the Company onto the Plaintiff is akin to the Defendant attempting to re-write the terms of the share sale agreement. [25] Thirdly, the well-known dictum of Lord Denning MR in Fielding and Platt Ltd v Najjar [1969] 2 All ER 150 applies to the effect that a cheque or promissory note is to be treated as cash, and is to be honoured unless there is some good reason to the contrary and only in exceptional circumstances will a court deprive a claimant of judgment on a claim based on a cheque. [26] S. 101 (2) of the Act provides for the application of “the rules of the common law of England, including the law merchant, shall, save in so far as they are inconsistent with the express provisions of this Act, apply to bills of exchange, promissory notes, and cheques.” It bears mention that the Act is based on the English Bills of Exchange Act 1882. This will become relevant when considering the cases decided by the English courts. [27] That a cheque is treated as payment of cash has been applied in both Singapore and Malaysian cases, to name a few: Yeo Hiap Seng v Australian Food Corp Pte Ltd & Anor [1991] 3 MLJ 144, Wong Fook Heng v Amixco Asia Pte Ltd [1992] 2 SLR 342 (decisions of the Singapore High Court and Court of Appeal respectively); Dato’ Francis Ng Tian Sang v Alexander Wong Shoon Choy & Ors [2002] 7 CLJ 301; Affin Bank Bhd v 12 MMJ Exchange Sdn Bhd & Anor [2011] 9 MLJ 787; Raymond Mah Mun Kitt v Bengjaya Sdn Bhd [2014] 1 LNS 82; Ting Sie Chung (A) v Ors v Yeap Jing Fong [2009] MLJU 244, Uni Wall Architectural Product & Services Sdn Bhd v Global Upline Sdn Bhd [2011] MLJU 517; Nulink Solutions Sdn Bhd v Afdilia Holdings Sdn Bhd [2016] 6 AMR 639; Axisjaya Sdn Bhd v B Cor Geotechnics Sdn Bhd [2020] MLJU 324; Yee Teck Fah v Lee Chee Meng [2020] MLJU 1054. [28] In fact, 2 cases cited by the Defendant’s counsel of Uni Wall (supra) and Ting Sie Chung (supra) shows a cheque is to be treated as cash. By accepting a post-dated cheque payable at a future date, the Plaintiff in this case was only deferring cash payment of RM1,700,000 to 27.3.2021. [29] Fourthly but not least important, the Plaintiff's claim on the dishonoured cheque is an independent cause of action distinct from the original underlying contract. The cheque constitutes a separate contract and creates obligations for the drawer (Defendant) and rights for the payee/holder (Plaintiff) that are autonomous from any underlying transaction – see Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 WLR 713; [1977] 2 All ER 463 where the House of Lords held, inter alia, that a claim for unliquidated damages under a contract for sale was no defence to a claim under a bill of exchange accepted by the purchaser, nor was it available as a set-off or counterclaim. Lord Wilberforce, at p 720 of his judgment stated clearly that ‘the contract sued on (the acceptance of the bills) is a separate contract from that of the sale of the machine’; consequently, unliquidated cross-claims in respect of the contract of sale of the machines could not be relied on by way of set-off against a claim on the bills. Lord Wilberforce also said at pg 721 that bills of exchange payable at future dates were 'equivalent to deferred instalments of cash', and 'I fear that the Court of Appeal's decision, if it 13 had been allowed to stand, would have made a very substantial inroad upon the commercial principle on which bills of exchange have always rested'. Lord Russell in his judgment, at p 732 stated: “A vendor and purchaser who agree upon payment by acceptance of bills of exchange do so not simply upon the basis that credit is given to the purchase so that the vendor must in due course sue for the price under the contract of sale. The bill is itself a contract separate from the contract of sale. Its purpose is not merely to serve as a negotiable instrument, it is also to avoid postponement of the purchaser’s liability to the vendor himself, a postponement grounded upon some allegation of failure in some respect by the vendor under the underlying contract, unless it be total or quantified partial failure of consideration.” [30] In Singapore, it was held by Goh Phai Cheng JC in Yeo Hiap Seng v Australian Food Corp Pte Ltd & Anor [1991] 3 MLJ 144 that the counterclaim raised by the defendants in that case did not relate to the plaintiff’s claim on the dishonoured cheque, but was a separate action altogether; therefore the facts alleged by the defendants were irrelevant to the issue before the court. See also the Singapore Court of Appeal decision in Wong Fook Heng v Amixco Asia Pte Ltd [1992] 1 SLR(R) 654 at [13]. [31] Ahmad Fairuz J’s discussion of the 2 Singapore cases and conclusion that a counterclaim is not a defence to an action involving a bill of exchange in Yee Teck Fah v Lee Chee Meng [2020] MLJU 1054 are apt and useful which I readily subscribe to and reproduce in summary below: “[47] It is instructive to refer to Halsbury’s Laws of Malaysia Vol.7(2) Reissue where at page 836 it states as follows: 14 “In an action on an action for a dishonoured bill of exchange or cheque, the plaintiff is entitled to judgement on his claim without stay of execution pending trial of a counterclaim for damages for breach of another contract or the commission of a tort, for a bill fi exchange is to be treated as cash unless there is an arguable case based on total failure of consideration” [48] A counterclaim is not a defence to an action involving a bill of exchange. In Yeo Hiap Seng v Australian Food Corp Pte Ltd & Anor [1991] 3 MLJ 144, the plaintiffs produced 10,500 cartons of fruit juice drinks and supplied the same to the first defendants’ customer in Taiwan on 29 July 1989. Upon presentation of the cheque at the DBS Bank, the cheque was dishonoured and the plaintiffs were requested by the bank to ‘refer to drawer’. The plaintiffs therefore claimed against the first defendant for the proceeds of the cheque. A counterclaim was filed by the Defendants. The Court held as follows: “The counterclaim raised by them did not relate to the plaintiffs’ claim but was a separate action altogether and therefore the facts alleged by the first defendants were wholly irrelevant to the issue before the Court. Even if the first defendants could succeed in their counterclaim, in an application for summary judgment against a defendant on the proceeds of a dishonoured cheque, the defendant will not be allowed to set up by way of a set-off a counterclaim for damages for breach of the underlying contract and the plaintiffs were entitled to judgment for the amount of their claim without a stay of execution. A cross-claim relating to the transaction in which the action on a bill of exchange arose is not a defence to the action on the bill of exchange.”(Emphasis added) [49] In Glennie v Imri 3 Y&C. Ex 440 the following was held by the Court that “if an action is brought by him on this bill of exchange, and he was to set up this case by way of defence, Court of law would say to him, you cannot reduce the contract, you must pay the bill and bring on an action for fraud”. [50] As such, this Court is not swayed in any manner with the counterclaim filed by Defendant as it does not relate to the action on a bill of exchange such as the cheque. 15 [51] In Wong Fook Heng v. Amixco Asia Pte Ltd [1992] 1 SLR 654, it was held that a bill of exchange is to be treated as cash and must be honoured unless there was some good reason to the contrary. This principle emanated from a host of early English cases emphasising this principle. In Brown Shipley & Co v Alicia Hoisery [1966] Vol.1 Lloyds Reports 668, the Court of Appeal held that “in an action between immediate parties to bill of exchange, judgment should be given to the bill of exchange as for cash and it was not to be held up by virtue of some counterclaim”. See also Cebora S.N.C v SIP (Industrial Products) Ltd C.A [1976] Vol.1 Lloyd’s Law Rep. 271 which endorsed Brown Shipley. [52] This Court is of the view that a cheque must be treated as cash as it is a promise to pay. Once it is issued, the holder holds it for value and is entitled to treat it as good value to discharge any debt or sums owing between the parties. It is therefore only to be expected that the recourse against the drawer of a cheque that is dishonoured be dealt firmly by this Court consistent with the provisions of the Bills of Exchange Act 1949.” [32] Yee Teck Fah’s case was also cited by the Defendant’s counsel but the ratio decidendi in the case is against the Defendant. It is to be remembered that the Plaintiff sued on the cheque and not on the underlying contract. The Defendant’s stance in mounting the counterclaim for the said Company expenses in my view is a futile attempt to avoid summary judgment based on dishonour of the cheque since the Defendant was unable to rebut on a balance of probabilities the statutory presumption under s. 30(1) of the Act that the cheque was given by the Defendant for valuable consideration. [33] Where a cheque has been given and taken in payment, if the defendant is to make a cross claim, he must first pay the cheque - Jackson v Murphy (1881) 4 TLR 92. 16 [34] In Montecchi v Shimco (UK) Ltd [1980] 1 Lloyd’s Rep 50 at 51, Lord Bridge said: “… it is elementary that as between the immediate parties to a bill of exchange which is treated in international commerce as the equivalent of cash, the fact that the defendant may have a counterclaim for unliquidated damages arising out of the same transaction forms no sort of defence to an action on a bill of exchange.” Other defences [35] The Defendant has contended that the Plaintiff has failed to comply with s. 48 and s. 49 of the Act as no notice of dishonour was given to her. I did not give any weight to this contention as the Plaintiff on the facts of this case, is under no legal obligation to give the Defendant notice of dishonour. Under s. 50 (2) (c) (v) of the Act, notice of dishonour to the drawer of the bill is dispensed with. S. 50 (2) inter alia, states:

(1) …

Notice of dishonour is dispensed with-

when, after the exercise of reasonable diligence, notice, as required by this Act, cannot be given to or does not reach the drawer or indorser sought to be charged;

by waiver express or implied; notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice;

as regards the drawer in the following cases, namely:

where the drawer and drawee are the same person;

(ii) where the drawee is a fictitious person or a person not having capacity to contract; 17

(iii) where the drawer is the person to whom the bill is presented for payment;

(iv) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill;

where the drawer has countermanded payment;

……. “ [36] That there is no necessity for a notice of dishonour to the drawer makes for good sense as the drawer herself knows exactly what she did. The basic principles are trite - the countermand of the cheque by the Defendant drawer only affects the relationship between the Defendant drawer and her banker Hong Leong Bank; the countermand terminates the authority of the banker Hong Leong Bank to make payment on the cheque. The countermand, however, does not in any way affect the liability of the Defendant drawer towards the Plaintiff as holder of the cheque - Yee Chow Fah v Multihorizon Sdn Bhd [1999] 6 MLJ 175. [37] For completeness, I ought to mention that the Plaintiff out of abundant caution did in fact through his solicitors gave notice of dishonour as alluded to in paragraph 6 of this judgment. The notice can be found at exhibit “GKH-2”. [38] The Defendant’s contention that she had requested for a return of the cheque for sum of RM1,700,000 and that she will reissue another cheque for a sum of RM RM1,056,505.35 instead cannot succeed. In my respectful view, and bearing in mind the authorities discussed, the cheque for sum of RM1,700,000 does not lose its legal attributes under the Act by a side wind through the Defendant’s introduction of the ‘expenses of the Company’ for which a sum of RM643,494.65 is purportedly the Plaintiff’s 18 share. I have already rejected this contention earlier in this judgment. Additionally, this amount has been sought by the Defendant in her counterclaim. [39] The matter does not come to an end if the Defendant has not been able to raise any triable issue. I think it desirable at this juncture to ask the question, was she able to show there is “some other reason for trial” pursuant to Order 14 rules 3(1) and 4(1)? [40] Having considered the existing factual matrix of the case, regretfully, I am not able to find anything relied upon by the Defendant that constitutes there is “some other reason for trial” within the category of what Megarry J had in mind in Miles v Bull [1968] 3 All ER 632, page 637 to 638. [41] It is well-established that an application for summary judgment on a dishonoured cheque will succeed unless the Defendant raises an arguable case of fraud, illegality or a total or quantified partial failure of consideration. In this case, we are concerned only with the issue of failure of consideration which I have rejected as entirely bereft of substance. [42] There was no rejection of the shares by the Defendant prior to the dishonour of the cheque on 27.3.2021. In fact, the Defendant’s own exhibit “CMF-3” shows after the 2 cheques were given to the Plaintiff, the Defendant became immediately the beneficial owner of the shares and was at liberty to sell and transfer the shares. The contents of exhibit “GKH- 3” shows the Defendant after acquiring the Plaintiff and PMTSB’s shares, in fact went on to transfer all the shares in the Company to other parties. It therefore is indeed most curious that the Defendant would assert failure of consideration in an attempt to deny the Plaintiff summary judgment. 19 [43] The Plaintiff, as holder of the cheque has a statutory cause of action pursuant to s. 47(2) of the Act to immediate recourse against the Defendant as drawer by dint of s. 55 (1) (a) for the full face value stated in the cheque in the sum of RM1,700,000. [44] In my respectful opinion, this is a straightforward case of an action on a bill of exchange for which no bona fide defence has been put forward. This Court as such, has no reasonable doubt at all that the Plaintiff’s claim is clearly incontestable and that it is a suitable case to be disposed of summarily (see Bank Negara Malaysia v Mohd Ismail (supra). [45] For the reasons I have given, the Defendant should honour the cheque she issued. The application by the Plaintiff in enc. 7 for summary judgment against the Defendant is allowed with costs of RM5,000 subject to allocator. Dated 5th November, 2021 -sgd- ……………………….. Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Andrew Ewe & Jenny Lim (Messrs Ewe Chong & Khoo) For the Defendant : Muhammad Nor Izzat & Muhammad Danish (Messrs Amar Syiimir Izzat & Sham) 20 CASES CITED National Company For Foreign Trade v Kayu Raya Sdn. Bhd. [1984] 2 MLJ 300; [1984] 2 CLJ 220 Bank Negara Malaysia v. Mohd Ismail & Ors[1992] 1 MLJ 400; [1992] 1 CLJ 14 (Rep) Kum Hui Bing v Premium Plaza Sdn Bhd [2018] MLJU 979; [2018] 6 AMR 113 Ong Guan Hua v Chong (1963) 29 MLJ 6 Chen Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363 at 367; [1995] 2 AMR 1655 at 1659-1660 Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 MLJ 433 Sykt Telekom Malaysia v. Business Chinese Directory Sdn Bhd [1996] 3 MLJ 692 Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 Permodalan Plantations Sdn Bhd v Rachuta Sdn Bhd [1985] 1 MLJ 157; [1985] CLJ Rep 242 Fielding and Platt Ltd v Najjar [1969] 2 All ER 150 Yeo Hiap Seng v Australian Food Corp Pte Ltd & Anor [1991] 3 MLJ 144 Wong Fook Heng v Amixco Asia Pte Ltd [1992] 2 SLR 342 (decisions of the Singapore High Court and Court of Appeal respectively); [1992] 1 SLR(R) 654 Dato’ Francis Ng Tian Sang v Alexander Wong Shoon Choy & Ors [2002] 7 CLJ 301 Affin Bank Bhd v MMJ Exchange Sdn Bhd & Anor [2011] 9 MLJ 787 Raymond Mah Mun Kitt v Bengjaya Sdn Bhd [2014] 1 LNS 82 Ting Sie Chung (A) v Ors v Yeap Jing Fong [2009] MLJU 244 21 Uni Wall Architectural Product & Services Sdn Bhd v Global Upline Sdn Bhd [2011] MLJU 517 Nulink Solutions Sdn Bhd v Afdilia Holdings Sdn Bhd [2016] 6 AMR 639 Axisjaya Sdn Bhd v B Cor Geotechnics Sdn Bhd [2020] MLJU 324 Yee Teck Fah v Lee Chee Meng [2020] MLJU 1054 Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH [1977] 1 WLR 713; [1977] 2 All ER 463 Jackson v Murphy (1881) 4 TLR 92 Montecchi v Shimco (UK) Ltd [1980] 1 Lloyd’s Rep 50 Yee Chow Fah v Multihorizon Sdn Bhd [1999] 6 MLJ 175 Miles v Bull [1968] 3 All ER 632 STATUTE/LEGISLATION REFERRED: Order 14, Order 41 rule 5 of the Rules of Court 2012 Section 2, 27, 30, 47, 48, 49, 50, 55, 73, 101 Bill of Exchange Act 1949