Gomathy A/P Vijayan v 1. ) Elankovan A/L Rukminie @ Ramanathi (PA-22NCvC-117-06/2021)

ELANKOVAN A/L RUKMINIE @RAMANATHI (No. K/P: 671020-02-5393)

SELVANAYAGI A/P CHILLAYAH (No. K/P: 690408-07-5032) …DEFENDAN-DEFENDAN

A.

The cause of action of the Plaintiff against all the Defendants is for Specific Performance to compel the Defendants to complete the Sale and Purchase Agreement and to effect the transfer of ownership of the property known as No. 39, Lorong Jernih 6, Taman Jernih, 14000 Bukit Mertajam, held under GRN 14/10/2025 12:23:43 PA-22NCvC-117-06/2021 Kand. 91 2 100455, Lot 13759, Mukim 15, Daerah Seberang Perai Tengah, Negeri Pulau Pinang (“the Property”). In the alternative, the Plaintiff seeks a refund of the deposit sum of RM200,000.00 paid towards the purchase of the said Property.

On the other hand, the Defendants have filed a Counterclaim seeking, inter alia, the following reliefs: [a] A declaration that the Sale and Purchase Agreement dated 12 August 2016 (“SPA 2016”) is null and void; [b] A declaration that the private caveat entered by the Plaintiff over the Property was wrongful and/or without reasonable cause; [c] An order directing the Plaintiff to remove the said private caveat over the Property within fourteen (14) days from the date of the order; and [d] An order for damages to be assessed pursuant to Section 329 of the National Land Code 1965.

The Defendants are the registered proprietors of the Property. On 1 June 2015, the Defendants entered into a Sale and Purchase Agreement (“SPA 2015”) with a third party, Ong Ee Jer (“OEJ”), for the sale of the Property at the price of RM500,000.00. Pursuant thereto, OEJ paid a deposit of RM150,000.00 to the Defendants, with the balance purchase price to be settled within six (6) months from the date of the SPA

On 2 June 2015, OEJ caused a private caveat to be lodged over the Property, registered as No. Perserahan 0799B2015006148. Subsequently, a Registrar’s Caveat bearing No Perserahan 0799B2017006414 was registered on 13 July 2017.

On 12 August 2016, the Plaintiff entered into a Sale and Purchase Agreement (“SPA 2016”) with the Defendants for the purchase of the Property at the price of RM400,000.00. Pursuant to Clause 2.1 of the SPA 2016 and Section 9 of the Schedule thereto, the Plaintiff paid a deposit sum of RM200,000.00 to the Defendants by depositing cheques in the amounts of RM100,000.00 and RM170,000.00 into the client account of Messrs Jeu Kogulaasrie & Partners.

The Defendants, however, deny having executed the SPA 2016 and contend that the sum of RM200,000.00 received by them was part of a “fast loan” arrangement allegedly facilitated by the Plaintiff’s solicitor, and that their signatures on the SPA 2016 were forged.

There were a total of six (6) witnesses called during the trial, comprising witnesses for both parties as well as subpoenaed witnesses, as follows: [a] Plaintiff’s Witnesses i. Balasingham Arasabalan (also known as Moses) – WSPW1 ii. Gomathy A/P Vijayan – WSPW2 [b] Defendants’ Witnesses i. Elankovan A/L Rukminie @ Ramanathi – WSDW1 ii. Selvanayagi A/P Chillayah – WSDW2 [c] Subpoenaed Witnesses i. Lee Beng Tatt – PW3 ii. Lim Gooi Fook – PW4 D.

At the commencement of trial, both parties agreed that all documents contained in Part B of the Bundle of Documents would be admitted into evidence, with their authenticity not in dispute, subject to cross-examination on their contents where relevant. The documents were not individually marked as exhibits but were referred to during the proceedings by way of pagination and reference to the agreed and marked Bundle of Documents.

The Plaintiff contends that the Sale and Purchase Agreement dated 12 August 2016 (“SPA 2016”) was duly executed by both parties and is valid and binding. The Plaintiff avers that all terms and conditions under the SPA 2016 were mutually agreed upon, and that she has duly performed her obligations thereunder, including payment of the deposit sum of

The Plaintiff further asserts that the Defendants, at all material times, represented themselves as the lawful registered proprietors of the Property and willingly executed the SPA 2016 in the presence of a solicitor. The Plaintiff relies on documentary evidence, including the executed SPA 2016, payment receipts, and correspondence between solicitors, to demonstrate that the transaction was genuine and intended for the sale and purchase of the Property.

Despite repeated demands and the Plaintiff’s continuous readiness and willingness to complete the transaction, the Defendants failed, neglected, and/or refused to proceed with the completion of the SPA 2016 and the transfer of ownership of the Property to the Plaintiff.

The Plaintiff submits that the Defendants’ denial of having executed the SPA 2016 and their allegation of forgery are mere bare denials unsupported by credible evidence. The Defendants have failed to discharge the burden of proof on a balance of probabilities to establish that their signatures were forged. The Plaintiff, on the other hand, has made reasonable efforts to prove the authenticity of the Defendants’ signatures by comparison with the earlier Sale and Purchase Agreement dated 1 June 2015 (“SPA 2015”), wherein Mr. Lee Beng Tat (PW3), a subpoenaed witness, verified the Defendants’ signatures as genuine.

The Plaintiff submits that she has fully performed her contractual obligations under the SPA 2016 by making payment of the deposit sum of RM200,000.00 through her solicitor, M/s Jeu Kogulaasrie & Partners. The evidence shows that a total of RM270,000.00 was deposited into the said firm’s client account, out of which RM200,000.00 was disbursed in accordance with the Defendants’ instructions. The Defendants, however, have failed to provide any documentary or corroborative evidence to substantiate their assertion that the said sum was part of a “fast loan” transaction.

In the absence of any credible or conclusive proof of forgery, the Plaintiff contends that the SPA 2016 remains valid, binding, and enforceable, as all essential elements of a valid contract — namely offer, acceptance, intention to create legal relations, capacity, and consideration — have been satisfied. The Defendants’ failure, refusal, and/or neglect to complete the transaction constitute a clear breach of their contractual obligations under the SPA 2016, thereby entitling the Plaintiff to the equitable remedy of specific performance.

In response to the Defendants’ counterclaim, the Plaintiff asserts that the Defendants have not suffered any loss as a result of the Plaintiff’s private caveat, given that the earlier private caveat lodged by OEJ would, in any event, have prevented the Defendants from dealing with the Property. Accordingly, the Defendants are not entitled to any damages or reliefs sought in their counterclaim, which arise solely from their own refusal to perform their obligations under the SPA 2016.

In conclusion, the Plaintiff respectfully prays for: a) An order for Specific Performance compelling the Defendants to complete the sale and effect the transfer of the Property to the Plaintiff; or in the alternative, b) A refund of the deposit sum of RM200,000.00, together with interest thereon; and c) Such further and/or other relief as this Honourable Court deems fit and just.

The Defendants categorically deny having executed the Sale and Purchase Agreement dated 12 August 2016 (“SPA 2016”) and maintain that the said agreement is a forgery. They assert that they never instructed any solicitor to prepare or execute such an agreement, and that the signatures appearing therein are not theirs.

The Defendants contend that the Plaintiff, through her solicitor, had instead offered them a “fast loan” arrangement in the sum of RM200,000.00, and that the said amount was never intended as a deposit for the purchase of the Property but as a short-term loan advanced for their personal use. The Defendants further allege that they had signed certain blank documents in good faith, believing them to be connected to the loan arrangement, and that the Plaintiff or her solicitor subsequently misused those signed documents to fabricate the SPA 2016.

The Defendants submit that even a normal visual comparison—without the need for expert handwriting evidence— reveals glaring discrepancies between the purported signatures on the SPA 2016 and their genuine signatures. This, they say, clearly supports their contention that the SPA 2016 is a forged document. They further emphasise that the Plaintiff failed to call Ms Jei, the solicitor who allegedly witnessed the execution of the SPA 2016, to testify. Being the sole attesting witness to the Defendants’ purported signatures, her absence leaves a substantial and material gap in the Plaintiff’s case.

The Defendants also point out that the Plaintiff’s witnesses themselves conceded during trial that they had never met either of the Defendants. As such, they had no personal knowledge of whether the Defendants had signed the SPA 2016. On this basis, the Defendants reiterate that the 1st Defendant had never signed any Sale and Purchase Agreement for the sale of the Property, and that the entire transaction was a fabrication.

The Defendants further submit that they never received the alleged RM200,000.00 deposit from the Plaintiff. In the absence of any credible documentary proof or testimony from Ms Jei—the only person who could have verified the disbursement—the Plaintiff has failed to produce a single shred of evidence showing that the Defendants actually received the said amount. The 2nd Defendant specifically denies ever visiting Ms Jei’s office or having any dealings with her at any point in time. Hence, the Defendants contend that the Plaintiff or her solicitor had acted fraudulently, with the sole intention of deceiving the Defendants into parting with ownership of the Property.

The Defendants also submit that the private caveat lodged by the Plaintiff over the Property (Presentation No. 0799B2016008652 dated 1 September 2016) was wrongful, baseless, and without reasonable cause. The caveat, they argue, has unlawfully restricted their ability to deal with or dispose of the Property since its registration. The Defendants propose that compensation in the range of RM10,000.00 to RM100,000.00 would be fair and reasonable, considering the prolonged existence of the caveat from September 2016 as revealed by the land search.

As to their Counterclaim, the Defendants submit that there was no effective challenge from the Plaintiff to their evidence on the counterclaim. The Plaintiff’s failure to cross-examine the Defendants on these issues is tantamount to acceptance of the Defendants’ evidence. Accordingly, the Defendants’ evidence on the counterclaim stands uncontroverted.

In summary, the Defendants submit that the Plaintiff has failed to establish her case on a balance of probabilities. Conversely, the Defendants submit that they have successfully proven their Counterclaim on a balance of probabilities. G.

I have taken cognizance of the issues framed for determination at Enclosure 56. Having heard and considered the submissions of both parties, I am of the view that the key issues for determination are as follows: [a] Whether the Sale and Purchase Agreement dated 12 August 2016 (“SPA 2016”) was validly executed and binding between the Plaintiff and the Defendants. [b] Whether the Defendants’ signatures appearing in the SPA 2016 were genuine or forged. [c] Whether the sum of RM200,000.00 paid by the Plaintiff constituted a deposit under the SPA 2016 or a “fast-loan” arrangement as alleged by the Defendants. [d] Whether the Plaintiff has performed her obligations under the SPA 2016 and is entitled to the equitable remedy of specific performance or, in the alternative, a refund of the deposit. [e] Whether the Plaintiff’s lodgement of a private caveat over the Property was wrongful or without reasonable cause. [f] Whether the Defendants have suffered any loss or damage as a result of the said private caveat and, if so, the quantum of such damages. [g] Whether the Defendants are entitled to the declarations and reliefs sought in their Counterclaim. H.

Having carefully considered the pleadings, the documentary and oral evidence adduced at trial, and the respective submissions of learned counsel for both parties, I am of the view that the primary issue to be determined is whether the SPA 2016 was genuinely executed by the Defendants and therefore valid and binding.

On the Validity and Execution of the SPA 2016 26. The Plaintiff’s position is that the SPA 2016 was duly executed by both Defendants and witnessed by a solicitor, M/s Jei Kogulaasrie. The Plaintiff relies on the executed SPA 2016, the payment records, and correspondence between the solicitors to substantiate that the transaction was a genuine sale and purchase of the Property.

The Plaintiff affirmed that she had entered into the SPA 2016 with the Defendants. However, the Defendants denied this on the ground that the signatures appearing on the said agreement are not theirs. The 1st Defendant admitted to having signed certain documents at the office of Ms Jei but maintained that those documents were related to a "fast loan" transaction, not a sale and purchase agreement. The 2nd Defendant, on the other hand, contended that she was never present at Ms Jei’s office.

The central issue for determination is whether the signatures appearing on the SPA 2016 are genuinely those of the Defendants, or whether they were forged to imitate the Defendants’ signatures. It is trite law that the burden of proof is on the Defendants to prove their assertion on the balance of probabilities that the signatures are falsified or forged.

In addressing the genuineness of the Defendants’ signatures, I am guided by the Federal Court in Letchumanan Chettiar Alagappan (As Executor to SL Alameloo Achi (Deceased)) & Anor V. Secure Plantation Sdn Bhd [2017] 5

There was no opinion evidence from a handwriting expert. However, the courts below should have considered the totality of the evidence, the evidentiary facts and made the inferences and not just dismiss them as being of no probative value. Furthermore, a finding of forgery could be made without the opinion evidence of a handwriting expert, be it in civil or criminal proceedings. The modes of proof envisaged in ss. 45 and 47 of the Act are not exclusive for proving the genuineness or authorship of a document. Comparison may be made by (i) a handwriting expert under s. 45 of the Act; (ii) anyone familiar with the handwriting of the persons concerned, as provided by s. 47 of the Act; or

(iii) the court itself under s. 73 of the Act. If the feature of writing and signature on the documents are so glaring, the court can form an opinion by itself and further exercise under s. 45 may virtually become unnecessary or futile.

In Siaw Kim Seong V. Siew Swee Yin & Anor [2008] 5 CLJ 441, the Court of Appeal [6] “…But in this case you do not have to be an expert to see for yourself that the signature supposed to be of the Plaintiff appearing on the memorandum of transfer and the assignment do not match even upon a cursory visual examination. In fact, the signature said to be that of the Plaintiff on the assignment is manifestly different from that appearing on the memorandum of transfer. And both signatures are wholly different from the Plaintiff's admitted signature appearing on the agreement he had with Chung. In our judgment, the learned judge could have - and on the facts of this case he should have - acted under s. 73(1) of the Evidence Act 1950.

I also reminded myself of the cautionary advice of the Federal Court in Letchumanan’s case which emphasised that, as a matter of judicial prudence and restraint, the Court should not ordinarily assume the responsibility of comparing a disputed signature with an admitted one. In cases of any doubt, however slight, such matters are best left to the expertise of qualified handwriting experts.

In the present case, the Defendants did not call any expert witness to verify the authenticity of the signatures on the SPA

However, they testified and exhibited their passport to support their genuine signatures for comparison and contended that the discrepancies, particularly in the 2nd Defendant’s signature, are sufficiently apparent and require no handwriting expert evidence. In the absence of a handwriting expert or any witness familiar with the Defendants’ signatures, I am mindful that under Section 73 of the Evidence Act 1950, the court may itself compare the disputed signatures with admitted signatures to determine authenticity. I have taken the liberty to examine and ascertain the evidence brought before me (SPA 2015, SPA 2016 and the Defendants passports) whether it is of the Defendants by whom it purports to have been made. Upon doing so, the Court finds no material differences suggesting forgery. The Defendants’ allegation is therefore unsubstantiated and without merit. Having compared those signatures, I find that it as those signatures are not manifestly different from that appearing in the SPA 2016. 16 33. I also took cognizance of the fact that, prior to the SPA 2016, the Defendants had entered into a Sale and Purchase Agreement with a third party, one OEJ, for the sale of the same Property at the price of RM500,000.00 (“SPA 2015”). Under that agreement, OEJ paid a deposit of RM150,000.00 to the Defendants, and a private caveat was subsequently lodged on the Property. In that instance as well, the Defendants denied having signed the SPA

However, PW3, who attested the Defendants’ signatures, testified to having witnessed and verified the authenticity of the said signatures.

In my view, there are striking parallels between the circumstances surrounding SPA 2015 and SPA 2016—particularly with regard to the payment of deposits, the Defendants’ denials of having signed the agreements, the authenticity of the signatures, the alleged repayments as loans, and the fact that both agreements involved the same subject matter, namely, the Property. These circumstances, to my mind, form a discernible pattern whereby the Defendants appear to have entered into agreements to sell the Property, only to later deny the same and claim that the sums received were in fact loans but did not provide details as to the said loan transaction. Upon scrutiny of the evidence, I find that the Defendants have failed to produce any credible or independent evidence to support their allegation of forgery. No handwriting expert was called, nor was any police report or forensic report tendered to substantiate their claim. A mere denial, however emphatic, does not suffice to discharge the burden of proof on a balance of probabilities. The Plaintiff, on the other hand, has adduced cogent evidence that the SPA 2016 was duly executed and witnessed by a solicitor. The signatures on the SPA 2016 bear strong resemblance to those appearing in the earlier SPA 2015 between the Defendants and OEJ. This was corroborated by PW3, who verified the Defendants’ signatures as genuine. In this regard, I find that the Defendants have failed to discharge the burden of proof required to establish fraud, specifically forgery, on a balance of probabilities. In the absence of any evidence that conclusively proves the Defendants’ signatures on the SPA 2016 were forged, I find that the SPA 2016 is valid, binding, and enforceable against the Defendants. Further, the Defendants' alleged ignorance or lack of understanding of the contents of the SPA 2016 does not absolve them from the contractual obligations arising thereunder. The Deposit Payment of RM200,000.00 35. The Plaintiff has established that the sum of RM200,000.00 was paid through her solicitor, Messrs Jei Kogulaasrie & Partners, as the deposit under Clause 2.1 of SPA 2016. Bank statements and payment records tendered in evidence confirm that a total of RM270,000.00 was deposited into the solicitor’s client account, out of which RM200,000.00 was disbursed to the Defendants in accordance with their instructions.

By a letter dated 15.7.2017, Messrs Murugayah Balasubramaniam & Co, acting for the Plaintiff, wrote to the Defendants informing them that the sum of RM200,000.00 had been deposited on their behalf as payment towards the balance purchase price and urging them to comply with the terms of the SPA 2016. The Defendants, however, alleged that the said amount was a “fast loan” advanced to them, not a deposit payment. This assertion is wholly unsupported by any documentary evidence, agreement, or acknowledgment. In fact, the Defendants failed to produce any record or testimony indicating that a loan transaction was ever intended or concluded.

The evidence further shows that the Defendants admitted to having received RM105,000.00 out of the RM200,000.00, which was disbursed as follows: RM50,000.00 to OEJ, as confirmed by OEJ’s solicitor via a letter dated 14.5.2017; RM50,000.00 for the Defendants’ children’s education expenses; and RM5,000.00 to the 1st Defendant personally. These disbursements were consistent with instructions given by the Defendants themselves.

Although the Plaintiff’s solicitor, Ms Jei—who prepared the SPA 2016—was not called as a witness despite the Plaintiff’s efforts to secure her attendance by subpoena, the documentary and oral evidence adduced sufficiently establish the purpose of the payment. The absence of her testimony does not weaken the Plaintiff’s case in light of the Defendants’ own admissions and the corroborative correspondence.

Having considered the totality of the evidence, I find that the RM200,000.00 was paid as a deposit under the SPA 2016 and duly received by the Defendants. The allegation that it was a “fast loan” is implausible and without merit. The Plaintiff’s Performance and the Defendants’ Breach 40. The Plaintiff has demonstrated her readiness and willingness to complete the sale by fulfilling her contractual obligations under the SPA 2016, including the timely payment of the deposit. The evidence shows that she had taken all necessary steps towards completion, whereas the Defendants failed, neglected, and/or refused to proceed with the transaction despite repeated demands and reminders. 20 41. The Defendants’ reliance on the alleged existence of a “loan arrangement” is, in my view, a mere afterthought, concocted to evade their contractual responsibilities. The contemporaneous documents, including the executed SPA 2016, bank records, and solicitor correspondence, unequivocally support the Plaintiff’s version of events and reinforce the conclusion that the transaction was one of sale and purchase, not a loan. The Private Caveat 42. The Plaintiff lodged a private caveat over the Property pursuant to Section 322 of the National Land Code 1965 to protect her purchaser’s interest arising from the SPA 2016. Having found that the SPA 2016 is valid and binding, the Court is satisfied that the Plaintiff had a legitimate and registrable interest in the Property at the material time.

At this juncture, I am mindful that the earlier SPA 2015 and the private caveat lodged by OEJ on 2.6.2015, subsequently renewed on 23.4.2021, remain in force. The said caveat, lodged pursuant to Section 323 of the National Land Code 1965, operates as constructive notice to all third parties, including subsequent purchasers. The Property therefore continues to be encumbered by this subsisting caveat.

In view of the above, and given that the Plaintiff’s private caveat was lodged to protect her equitable interest as purchaser under a valid contract, I find no basis to conclude that the said caveat was wrongful or lodged without reasonable cause. The Defendants have also failed to demonstrate any loss or damage suffered as a result of the caveat’s entry.

Accordingly, I hold that the Plaintiff’s lodging of the private caveat was lawful and justified. The Defendants’ complaint in this respect is without merit, and their claim for damages under Section 329 of the National Land Code 1965 must necessarily fail. The Counterclaim and Relief 46. In view of the findings above, the I find that the Defendants have failed to establish their Counterclaim. The allegation that the SPA 2016 was forged has not been proven on a balance of probabilities. Likewise, their assertion that the Plaintiff wrongfully lodged the private caveat is untenable, given my finding that the Plaintiff had a bona fide and registrable purchaser’s interest under the SPA 2016. 22 47. I am, however, mindful of the existence of the earlier SPA 2015 and the continuing effect of the private caveat lodged by OEJ, which remains encumbering the Property. In light of these factors and the concurrent contractual complexities, I find that the Plaintiff’s prayer for specific performance is not feasible and cannot be sustained.

Accordingly, I allow the Plaintiff’s alternative prayer as follows: [a] The Plaintiff’s claim in paragraph 22(i) of the Amended Statement of Claim is allowed, and the Defendants, jointly and/or severally, are ordered to refund the deposit sum of RM200,000.00 to the Plaintiff within fourteen (14) days from the date of this Judgment. [b] The Defendants’ Counterclaim against the Plaintiff is dismissed in its entirety. [c] The Defendants, jointly and/or severally, are further ordered to pay the Plaintiff costs assessed at a global sum of RM40,000.00. [d] Interest at the rate of 5% per annum shall be calculated on the judgment sum from the date of this Judgment until full and final settlement. Bertarikh 14 Oktober 2025 SGD (Rozana binti Ali Yusoff) Hakim Mahkamah Tinggi Pulau Pinang Kompleks Mahkamah Pulau Pinang Pulau Pinang Peguam bagi pihak Plaintif : Balasingham Arasabalan Sarrenya A/P Santhakumar Tetuan Arnold Andrew & Co. Peguam bagi pihak Defendan: Adeline Loh Tetuan Preakas & Partners