Concealment issue/shortfall (500,000 meters) = RM650.000.00 RM2,308,897.00 [32] It is germane to note that although the amount pleaded originally under this head was RM1,710,043.00 (after deducting KDN's JIM Project) but based on other extra evidence supplied by the Defendant themselves, upon oral application by the Plaintiff, this Court agreed that the above was the correct amount." [24] Next, counsel for the Plaintiff said quite candidly that nothing in the Notes of Evidence mentions the Order in Terms for the oral application. But it was emphasized by counsel for the Plaintiff that the Notes of Evidence showed that he made the application to amend the claim "orally" during post-trial clarification. [25] After clarification, the learned Judge fixed the matter for decision. It was pointed out that paragraph [32] of the GOJ makes it abundantly clear that counsel for the Plaintiff had made an oral application to amend the claim, and the learned Judge somewhat agreed to the correctness of the amount claimed. [26] Counsel for the Plaintiff said that we should look at the sequence of events not in isolation, but in totality. He acknowledged that the Defendant objected to the amendment and that there is no Sealed Order, no Re-Amended Writ, and no Re-Amended Statement of Claim. However, counsel submitted that it is "not fatal" to his client's position and that the amounts awarded by the learned Judge were based on the amended claim. Counsel for the Plaintiff said that an inference should be made that the oral amendment was allowed. He referred to paragraph [32] of the GOJ to demonstrate that the learned Judge tacitly acknowledged that he had allowed the oral amendment. Our Decision - Procedural Issue [27] Our view on this procedural issue is as follows. First, Order 20, Rule 9 of the ROC is crystal clear. Hence, if the pleadings are not amended within 14 days of the order for amendment, then the amendment order lapses, unless it is resuscitated by an extension of the time. Hence, on the facts here, even assuming the learned Judge had allowed the oral application to amend, which was made orally, the party who had carriage of the claim, the Plaintiff, did not extract any order. More critically, there was no Re-Amended Writ and Re-Amended Statement of Claim which was filed/served within 14 days of the Order for amendment being made. [28] Counsel for the Plaintiff said that the clarification took place on 16 June 2022, and the issue of amendment was overtaken by the High Court's decision on 15 July 2022. The Plaintiff had no opportunity to file any Re-Amended Writ and Re-Amended Statement of Claim. In a sense, counsel for the Plaintiff was saying that because of the Judge's decision on 15 July 2022, it was a situation of fait accompli and there was no opportunity to comply with Order 20 Rule 9 of the ROC. [29] In our view, the requirements of Order 20 Rule 9 of the ROC are strict and mandatory. Thus, if the pleadings are not amended within 14 days of the order granting leave to amend, then the Order shall cease to have effect. In plain language, the amendment order would lapse unless it is extended. Here, no amendment was made, and no extension of time was sought. Thus, the elusive amendment order ceased to have effect. [30] Therefore, in such a situation, the Plaintiff's claim reverts to its original (unamended) claim. To that extent, the learned Judge was wrong to have allowed the claim based on the so-called amended amounts when Order 20 Rule 9 of the ROC was not complied with. Thus, we agree with the Defendant that there was a misdirection which warranted appellate intervention. Keeping this in mind, we will now proceed to deal with the substantive issues, i.e. the Plaintiff's claim (unamended per paragraph [31] of the Amended Statement of Claim. (See: High Court Enclosure 16) and the Defendant's counterclaim. Our Decision - Substantive Issues [31] The Plaintiff filed an action against the Defendant premised on the business relationship between the parties in four (4) projects, namely: - a) KDN Police Project; b) KDN JIM Project; c) MINDEF Project; and d) Farbel Project. KDN Police Project [32] There were three (3) issues raised at the High Court with regards to this KDN Police Project, which were as follows: - a) The outstanding payment for the first two million metres of fabric; b) The outstanding payment for the additional one million metres of fabric; and c) The concealment issue of 500,000 metres of fabric out of the total of three million metres of fabric. The outstanding payment for the first two million metres of fabric [33] The Plaintiff was awarded this project to supply two million metres of fabric to PDRM at a cost of RM30.7 million. [34] It is to be noted that for the purpose of the KDN Police Project: - a) Datuk Seri Faroz and Hasuna were to be the joint signatories for the Proceeds Account; and b) It was agreed between the parties that the Plaintiff is entitled to receive RM1.30/per metre of the fabric. [35] Upon perusal of the Payment Schedules and/or Distribution of Funds from Project for the KDN Police Project, we found that the Plaintiff was only paid RM1.00/per metre or RM0.70/per metre or RM0.50/per metre for this KDN Police Project in contrast for RM1.30/per metre as stipulated and agreed by both parties under the JVA. [36] The Defendant submits that the Plaintiff has accepted the lesser payment for the KDN Police Project from the agreed RM1.30/per metre without protest. [37] According to the Defendant, the fact that the Plaintiff remained silent for three (3) years upon receiving the commission shows that the Plaintiff had indeed agreed with such changes. [38] It was argued for the Defendant that if the Plaintiff disagreed with the commission received, then they should have made a complaint. However, they did not, at any material time raise any complaint and insist on their rights as per the JVA. [39] The Defendant further contended that there was indeed mutual agreement for the Plaintiff's commission distribution for the two million metres of fabric for the KDN Police Project. [40] In this regard, the Defendant contends that the variation of the JVA, especially concerning the commission payment for PDRM to the Plaintiff, has been mutually agreed upon between the parties in all documents pertaining to the commission payments, which have been recorded in writing and signed by both parties. [41] The Defendant submits that these documents constitute written documents for the contract variation as defined under clause 12.2 of the JVA. According to the Defendant, these documents further confirm the variation of the commission for the PDRM project payable to the Plaintiff, which was agreed upon, accepted, and received by the Plaintiff without protest. [42] Clause 12.2 of the JVA states as follows: - "Variation Any amendments or modifications to the terms and conditions of this Agreement (including the Schedules) shall be agreed to in writing and signed by both parties, and such amendments or modifications shall then form part of this Agreement." (Emphasis added) [43] Clause 12.2 of the JVA clearly provides that any variation to the terms of the said JVA must be made in writing and signed by both parties. [44] Having perused the evidence produced before the court, we find that no supplementary written agreement was made between the parties for the amount of RM1.30/per metre to be varied or changed. [45] The Defendant's witness, Saiful Izhar bin Senawi (DW1), who is the Director of the Business Development Department of the Defendant, had admitted during cross-examination that there is no supplementary written agreement made between the parties for the amount of RM1.30/per metre to be varied or changed: "PP1: Yes YA. di perenggan klausa 10.1 mengatakan. Mana-mana pengabaian, mana-mana terma hendaklah berbentuk bertulis dan dikeluarkan oleh pihak yang ingin mengabaikan terma tersebut ataupun hak tersebut. Setuju? SD1: Setuju. PP1: Baik, setuju atau tidak di dalam isu PDRM sama ada untuk 2 juta mahupun 1 juta, tidak ada mana-mana pengabaian bertulis daripada Toko Hudaya berkaitan dengan nilai RM1.30, setuju? SD1: Setuju. PP1: Now, setuju atau tidak, tidak ada apa-apa perjanjian tambahan bertulis antara Jakel dan Toko Hudaya yang mengubah nilai RM1.30 tersebut. Setuju? SD1: Setuju. PP1: Juga tidak ada mana-mana perjanjian bertulis antara Jakel dan Toko Hudaya yang mengatakan bahawa nilai itu dikurangkan menjadi RM1 bila-bila masa projek 2 juta berjalan, setuju atau tidak. SD1: Untuk 2 juta yes, setuju. [See: Rekod Rayuan Vol 2A, Encl. 4 page 157] [46] It is trite law that the parties' intention must be found within the four (4) walls of each of the two (2) agreements and each must be construed as a whole, and so far as practicable, effect must be given to every part of it. [47] In this regard, it is relevant to refer to the case of Michael C Solle v. United Malayan Banking Corp Bhd [1984] 1 MLRA 181; [1986] 1 MLJ 45; [1984] 1 CLJ 267, where the Federal Court held that: - "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." (Emphasis added) [48] Further, we also refer to the Court of Appeal in the case of Asiapools (M) Sdn Bhd v. IJM Construction Sdn Bhd [2009] 3 MLRA 316; [2010] 3 MLJ 7; [2010] 2 CLJ 28 where it was held as follows: - "Held (4) In construing a written contract the professed object of the court was to discover the mutual intention of the parties. The intention of the parties must be ascertained from the document itself. Thus, the parties themselves cannot give direct evidence to show that their intentions were at variance with the provisions of the contract document. The task of the court is quite simple namely, to construe the contractual term without any preconception as to what the parties intended. When the minds of the parties are expressed in an unambiguous manner, the principles of construction which are at best only a guide in the search for the intention of the parties cannot be relied upon to override the declared intention of the parties unequivocally expressed in the contract document. [51] When the minds of the parties are expressed in an unambiguous manner, the principles of construction which are at best only a guide in the search for the intention of the parties cannot be relied upon to override the declared intention of the parties unequivocally expressed in the contract document (K Appukuttan Panicker and another v. SKRAKR Athappa Chettiar AIR 1966 Kerala 303). And where the intention of the parties is clear from the language which they have used in the agreement, like the present case at hand, and the words contained therein are clear and unambiguous, there is no scope for drawing upon hypothesis considerations or supposed intentions of the parties (The Union of India v. Kishorilal Gupta and Bros AIR 1959 Supreme Court 1362). According to the case of James Miller and Partners Ltd v. Whitworth Street Estates (Manchester) Ltd [1970] AC 583; [1970] 1 All ER 796 (HL), once a contract has been considered it must be interpreted without reference to pre-contractual negotiations or subsequent dealing between the parties. The reason for this approach is easily discernible. It is purely to preserve the certainty given by written contracts". (Emphasis added) [49] This court is of the view that the Plaintiff would have entered into a Supplementary Agreement with the Defendant if the amount of RM1.30/per metre were to be varied or changed as per clause 12.2 of the JVA. [50] In addition to the above, the Defendant had also alleged that "the variation to the said JVA was agreed in writing, i.e. through the payment vouchers by the Plaintiff to the Defendant. However, we find that the Defendant unilaterally issued the payment vouchers to the Plaintiff and not otherwise. [51] Further, Clause 12.2 of the JVA provides that any variation to the terms of the said JVA must be made in writing and signed by both parties, which we find does not exist in this case. Therefore, the Defendant's allegation that the variation to the said JVA was made via the payment vouchers does not hold water and is devoid of merit. [52] In the instant case, we find that there was a waiver clause in clause 10.1 of the JVA. It is applicable as long as the waiver was in writing and signed by the party granting the waiver. [53] Clause 10.1 of the JVA provides as follows: - "WAIVER Waiver of any breach of this Agreement or of any right, power authority, discretion or remedy arising upon breach of or default under this Agreement, must be in a writing and signed by or on behalf of the party granting the waiver." (Emphasis added) [54] However, from the evidence adduced, we find that there was no waiver made between the parties for the amount of RM1.30/per metre to be waived or varied. [55] We agree with the learned Judge's finding that based on the totality of the evidence adduced, the Plaintiff has successfully established that the Defendant had failed to pay the Plaintiff the amount of proceeds as agreed in the said JVA, i.e. RM1.30/per metre. Therefore, the Defendant is liable to pay the outstanding amount of RM858,897.00. The outstanding payment for the additional one million metres of fabric [56] The Plaintiff was also awarded an additional one million metres of fabric under the KDN Police Project. [57] Hasuna, the sole proprietor of the Plaintiff (PW1) testified that, despite Clause 3.1 (g) (vii) of the JVA, the Defendant had only paid to the Plaintiff RM0.50/per metre for the total one million metres of fabric, in contrast to the RM1.30/per metre as stipulated and agreed by both parties, a shortfall of RM0.80/per metre fabric. [58] The Defendant, on the other hand, contended that PW1 himself had admitted in court that he had agreed with the price of RM0.50 and DW1, who was there during the meeting, had confirmed the same. [59] Having perused the evidence before the court, we find that the claim of RM0.50/per metre for the additional one million metres of fabric was not pleaded in the Statement of Defence, nor was it voluntarily testified to in the Defendant's witness statement. [60] DW1 testified in cross-examination that there was an agreement between the parties for the proceeds due to the Plaintiff to be reduced from RM1.30/per metre to RM0.50/per metre. [61] As we have mentioned in paragraphs [40], [41], [42], [43], [49], [50], [51], [52] and [53] above, any variation or waiver to the JVA and/or Partnership Agreement must be made in writing. However, we find that neither waiver nor supplementary agreement was signed to that effect. This was agreed by DW1. [62] Therefore, it was unsurprising that DW1 did not produce any supporting documents to support his claim. DW1, in fact, admitted that he has no authority and/or power to enter into the agreement on behalf of the Defendant. "PP1: Awak tidak mempunyai kuasa untuk memasuki perjanjian untuk Jakel dengan mana-mana pihak, setuju? SD1: Betul. PP1: Seseorang yang boleh datang ke mahkamah untuk mengesahkan ada atau tidak perjanjian lisan cuma adalah Dato Faruz seperti yang awak katakan. SD1: Betul." [See: Rekod Rayuan Vol 2A, Encl. 4 pages 164-165] [63] This court finds that from the evidence of DW1, only Datuk Seri Faroz has the authority and can confirm whether it was RM1.30/per metre or RM0.50/per metre. Unfortunately, Datuk Seri Faroz was not called to give evidence to confirm the so-called RM0.50/per metre agreement and to show the existence of any other agreement to vary or contradict the JVA and/or the Partnership Agreement. [64] Based on the totality of the evidence adduced, we are of the view that the Defendant's claim that the price of RM0.50/per metre was agreed upon between the parties was not proven and cannot be true. [65] On this issue, the learned Judge in paragraphs [26] and [27] of his GOJ had stated as follows: - [26] With the Defendant's failure to call Datuk Faroz to confirm otherwise, and that this Court, after seeing his demeanor and that he was not shaken under cross examination and that his evidence was consistent, this Court ruled that SP1 is a credible witness. Hence this Court ruled that PW1's evidence that the price of RM1.30 was agreed upon by parties remained intact and can stand by its own as Datuk Faroz did not come to Court to rebut. As the Defendant had only paid RM0.50 cent per metre, hence there was a shortfall of RM0.80 cent/metre. The Defendant's claim that the price of RM0.50 per metre was agreed upon between PW1 and Datuk Faroz was not substantiated. [27] Further, for such failure to call Datuk Faroz to testify, this Court has invoked an adverse inference against the Defendant under Section 114 (g) of the Evidence Act. The Parol Evidence Rule under Section 91 and 92 are also applicable. See the Federal Court case of Keng Huat Film Sdn Bhd v. Malcha-lal Pte Ltd [1984] 1 MLJ." (Emphasis added) [66] We see no reason to disagree with the findings of the learned Judge. Further, we find that the learned Judge has made findings that PW1 is a credible witness. On the other hand, it is clear that the Defendant had failed to call witnesses (particularly Datuk Seri Faroz) to give evidence on the existence of any other written agreement entered into between the parties, which is contrary to the existing JVA and/or Partnership Agreement. Thus, in light of such failure on the Defendant's part, we are of the view that the learned Judge was not wrong to hold that the Defendant had failed to discharge their burden of proof. [67] In respect to the Parol Evidence Rule, it is trite law that when the terms of a contract or of a grant or of any disposition of property have been reduced by or by consent of the parties to the form of a document, no evidence may be given in proof of the terms of the contract, grant or disposition of its contents. [68] We are guided by the Federal Court case of Keng Huat Film Co Sdn Bhd v. Makhanlall (properties) Pte Ltd [1983] 1 MLRA 46; [1983] 1 CLJ Rep 186; [1984] 1 MLJ 243, where it was held that: - [11] As far as our law is concerned, the exclusion of oral by documentary evidence, is governed by sections 91 to 99 of the Evidence Act 1950. Section 91 provides that the document itself must prove the contents of a document, and section 92 provides that subject to certain provisos, no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding to, or subtracting from its terms ... [12] ... For the construction of a written agreement the established doctrine is firstly to exclude evidence of negotiations leading up to the contract on the ground that it is only the final agreement which records a consensus and as such evidence of negotiations is unhelpful; and secondly to exclude evidence of the parties' subjective intentions so that any individual purpose which either of them hopes to achieve by the agreement on their own interpretation and understanding of the agreement is not admissible. (Emphasis added) [69] Based on the above, we are of the considered view that in the absence of any written agreement which is contrary to the JVA and the Partnership Agreement, the Defendant is liable to pay the Plaintiff RM1.30/per metre of the fabric. [70] Therefore, by calculating RM0.80 x 1 million, the Defendant is liable to pay the outstanding amount of RM800,000.00 due to the Plaintiff. The concealment issue of 500,000 metres of fabric out of the total of three million metres of fabric [71] The Defendant submits that based on the testimony of DW1, it is clear that the Defendant's action in dealing with JV Mistic Ltd was not mala fide nor to conceal any facts from the Plaintiff but, it was solely due to the facts that JV Mistic Ltd is the only company at that material time who held exclusive rights as a Toray agent. [72] Further, the Defendant contends that the price is the same and, as such, the allegation that the Defendant gained unlawful profit is untrue. The Plaintiff did not suffer any losses due to the Defendant's action in getting the fabric from JV Mistic Ltd as they were the agent of Toray. [73] It is not disputed that the agreed fabric specification for the total of three million units of the KDN Police Project is "Hisofy" material from a Toray company in Osaka, Japan. There was a site visit to the said factory in Osaka involving Hasuna for the Plaintiff, Datuk Seri Faroz for the Defendant and the then Deputy Inspector-General of Police, Tan Sri Mohd. Bakri Mohd Zinin, to inspect the quality of the fabrics and the process-making of the fabrics that will be used for the purpose of the KDN Police Project. [74] However, the Plaintiff discovered that the Defendant had only bought 2.5 million metres of Hisofy fabrics from Toray in Osaka and bought the remaining 500,000 metres from another manufacturer. This is evident from a copy of an email that enclosed the shipment list for Jakel by Y. Okazaki, the Toray manufacturer in Osaka (Exhibit P-1). [75] It is clear from the above that the 500,000 metres of fabric were ordered from a company named JV Mistic Ltd from Singapore without the Plaintiff's consent and/or knowledge. [76] DW1 during cross-examination had admitted to this fact when he said as follows: - "PP1: Ada tak apa-apa dokumen bertulis dafam ikatan dokumen yang ada di Mahkamah ini yang menampilkan makluman bertulis bahawa daripada jumlah 3 juta PDRM ini, 500,000 kami Jakel telah pesan daripada Singapura. Ada tak seperti itu? Ada tak dokumen seperti itu? SD1: Tidak ada. PP1: Dan bila tidak ada maka balik kepada perjanjian yang telah kita rujuk tadi, segala maklumat hendaklah melalui bertulis oleh pihak kepada pihak. Setuju? SD1: Setuju. PP1: Tapi setuju atau tidak, walaupun dinyatakan jenis kain spesifikasi itu adalah permintaan khusus pihak PDRM dalam lawatan ke kilang Jepun bersama dengananda, Encik Hasuna, Datuk Faroz dan beberapa pihak lain? SD1: Termasuk dengan JV Mistic. PP1: Setuju? Semua pihak ada? SD1: Setuju. PP1: Dan walaupun JV Mistic ada di situ, tidak dinyata bahawa pesanan akan dibuat daripada JV Mistic. Diberi suatu fahaman jelas bahawa pesanan 3 juta akan dibuat daripada Tokyo, Jepun. Setuju? SD1: Setuju." (Emphasis added) [See: Rekod Rayuan Vol 2A, Encl. 4 pages 176-177] [77] The testimony of DW1 clearly went against Clause 3.5 of the JVA which states as follows: - "Each Party agrees that they shall each keep the other Parties informed of any issues arising from the Contract which may have a bearing on the Joint Venture" [78] The Defendant alleged that "the Defendant's action in dealing with JV Mistic Ltd was not mala fide nor to conceal any facts from the Plaintiff as JV Mistic Ltd is the only company at that material time that held exclusive rights as Torrey Agent". [79] However, we find that the above allegation was never proven during the trial, and the Defendant did not produce any evidence to show that JV Mistic Ltd, in fact, was the only company at that material time holding exclusive rights as Torrey Agent. In any event, the above allegation is nothing but an admission on the part of the Defendant that the said 500,000 metres of fabric were not from Japan and thus, the Defendant had breached the agreement between the parties. [80] Since the allocation of proceeds for the Plaintiff is RM1.30/per metre, the Defendant is therefore liable to pay RM1.30 x 500,000 metres = RM650,000.00 to the Plaintiff. [81] Thus, the total amount and breakdown for the sum owing by the Defendant to the Plaintiff under the KDN Police Project is as follows: - No.ItemAmount Due(RM)1.The first two million metres of fabric858,897.002.The additional one million metres of fabric800,000.003.The concealment issue of 500,000 metres of fabric650,000.00TOTAL(RM)2,308,897.00 [82] However, based on our decision on the Procedural Issue in Paragraph [30] above, we will only allow the Plaintiff's claim of RM1,710,043.00 as per the Amended Statement of Claim. KDN JIM Project [83] The Plaintiff was awarded with the KDN JIM Project sometime in November 2014. The parties agreed to form a business relationship for the KDN JIM Project. [84] In executing the KDN JIM Project, it was orally agreed between the parties that the Plaintiff was entitled to 10% commission for the project. [85] However, the Defendant disagreed about this oral agreement through their witness, DW1. They claimed that parties had agreed orally for only 5%. [86] According to the Defendant, the purported 5% commission arose after Hasuna and Datuk Seri Faroz allegedly agreed to it during a discussion regarding the proposed opening of the Jakel Sarawak Branch. [87] Having perused the evidence adduced before this court, we are of the view that the so-called 5% commission instead of the 10% commission cannot be true based on the following reasons: - a) The claim of 5% commission was not pleaded in the Defendant's Statement of Defence; b) DW1 has no authority to enter into any business arrangement on behalf of the Defendant; c) DW1 admitted during cross-examination that he had no personal knowledge about what transpired during the meeting, which makes his evidence redundant and of no value to the Defendant's case. d) Hasuna and Datuk Seri Faroz agreed upon the 5% commission, so DW1 could not confirm that the commission issue was raised during the discussion. e) PW1's evidence on his 10% commission was not challenged because Datuk Seri Faroz was not called and hence failed to testify and rebut PW1's evidence; f) Adverse Inference was invoked against the Defendant under Section 114, Illustration (g) of the Evidence Act 1950 for failing to call Datuk Seri Faroz to testify; g) We agree with the learned Judge's finding when he accepted the evidence of PW1 as true in the absence of any evidence from Datuk Seri Faroz going the other way; and h) The 5% commission is conditional upon the Jakel Sarawak branch project materialized and the franchise will be given to the Plaintiff. [88] The learned Judge in his GOJ has stated as follows: - [39] After considering all the surrounding evidence, this Court has accepted SP1's evidence as the 5% commission was not pleaded in the Statement of Defence. Further, DW1 has no knowledge gf the arrangement between PW1/Hasuna and Datuk Faroz, hence his evidence did not support the defence. Again, at the risk of repeating, there is no reason why this Court cannot believe Hasuna's testimony which can stand on its own. His credibility was not challenged. In fact, his evidence was very reasonable and logical and that his demeanor was intact. [40] As SP1's evidence was not challenged because Datuk Seri Faroz was not called and hence failed to testify and to challenge or rebut them, hence this Court will have to consider that the 10% commission as the truth. [41] Further, as Datuk Seri Faroz was not called, an adverse inference was hence invoked against the Defendant under Section 114 (g) of the Evidence Act. See also the Supreme Court case of Guthrie Sdn Bhd v. TM LCB [1991] 1 CLJ Rep 155." (Emphasis added) [89] Based on the above and the evidence adduced before this court, we see no reason to disagree with the findings of the learned Judge. [90] Since the Plaintiff was only paid 5% out of 10% commission, the remaining 5% due to the Plaintiff is also the same as the amount that has been paid to the Plaintiff. [91] Based on Penyata Distribution of Funds from Project and Rekod Pembekalan Kain Pakaian Seragam at page 236/PDF 83, page 239/PDF 86, page 245/PDF 92, page 246/PDF 93 and pages 252-254/PDF 99-101, the Plaintiff has established that the amount due to be paid by the Defendant to the Plaintiff under the KDN JIM Project is RM562,374.25. Thus, the amount claimed and awarded by the learned Judge is affirmed. MINDEF Project [92] During the existing business relationship between the parties, the Plaintiff was also awarded a MINDEF Project for three (3) years from 11 March 2016 to 10 March 2019. [93] The Plaintiff appointed the Defendant to be the sub-contractor for the said MINDEF Project, and the quotation that was agreed between the parties was in the amount of RM923,658.03. There was also an additional cost incurred in the sum of RM84,156.58. [94] DW1 admitted in the cross-examination their failure to submit an amended quotation, resulting in an additional cost of RM84,156.58 due to the Plaintiff. DW1 also admitted to the penalty imposed by MINDEF against the Plaintiff for the delay caused by the Defendant. [95] Based on the above, this court agrees with the learned Judge's finding when he said as follows: - "[48] After considering all the evidence adduced, this Court ruled that the Defendant was liable to pay to the Plaintiff in the total amount of RM189,039.29 which comprises of: a) RM84,156.58 for the additional cost incurred in this Project; and b) RM104,882.71 for the penalty imposed by MINDEF against the Plaintiff." [96] Therefore, the Defendant is liable to pay RM 189,039.29 to the Plaintiff. Farbel Project [97] The Plaintiff is also claiming from the Defendant herein for the outstanding payment due to the Plaintiff under the fourth project, Farbel Project. [98] This arrangement started from a business deal between the Plaintiff and a third party, a company named Farbel High Venture (Farbel High), to produce 9,495 units of Farbel Exclusive clothes. After 50% of the Farbel Exclusive clothes were delivered to Farbel High, Farbel High failed to pay the Plaintiff for 50% of the clothes. [99] Later on, the Defendant, through its representative, Dato' Nizam, had contacted the Plaintiff and had agreed, among others; a) For the Defendant to take the remaining 50% of the Farbel Exclusive clothes; and b) For the Defendant to pay full price for the total of 9,495,including 50% that was defaulted by Farbel High. [100] The Defendant, on the other hand, submits that the contract with Farbel High was entered into between Farbel High and the Plaintiff. The Defendant was not a party to the contract. Further, no verbal or written agreement by the Defendant to show that the Defendant had indeed agreed to pay the outstanding sum due from Farbel High to the Plaintiff. [101] The Defendant further submits that the supply of textile under the Farbel Project by the Plaintiff was to a third party and is not related to the Defendant, and as such, the Defendant was not liable to pay the Plaintiff for the price of 50% of the clothes. i.e. the outstanding payment of RM241,811.60. [102] The Plaintiff contended that they had delivered all the materials as agreed between PW1 and Datuk Nizam. It is evident from the following testimony of PW1: - "PP: Seterusnya, ini isu yang terakhir, berkaitan dengan Farbel Exclusive. Ok Encik Hasuna, ada apa-apa bukti tak yang boleh ditunjukkan kepada Mahkamah bahawa pihak Plaintif telah menyerahkan pakaian-pakaian Farbel Exclusive ini kepada Defendan atau pun kepada pihak Farbel? SP: Saya menyerahkan delivery order, dan delivery order itu telah ditandatangani oleh pihak Jakel. PP: Bukan Yang Arif, secara laju. Dekat bahagian mana dan muka surat berapa yang menunjukkan penyerahan telah dibuat. SP: Muka surat 43 dan muka surat 48. PP: Bagaimana Encik Hasuna tahu pakaian tersebut telah diterima oleh Defendan? SP: Bila kita menghantar barangan, mereka telah terima dan cop sign. (Emphasis added) [See: Rekod Rayuan Vol 2A (Encl. 4) pages 24-25/PDF 26-27] (Encl. 8, PDF Pages 71-76, 77-78 and 80-81) [103] We have the opportunity to peruse the two (2) Tax Invoices dated 1 June 2016 (RM130,007.04), (RM90,820.80) and Tax Invoice dated 9 June 2016 (RM20,983.76), (Total: RM241,811.60), and we found that all three (3) Tax Invoices were not delivered to the Defendant. We also found that the Tax Invoices were not signed and acknowledged by the Defendant. [See: Encl. 8 pages 59, 70 and 79] [104] PW1 admitted that the Tax Invoices were not signed and acknowledged when he said as follows: - PD1: Dan sebenarnya invois-invois tersebut tidak pernah diterima oleh pihak Defendan pada bila-bila masa sebelum ini. En. Husana setuju? Dan sekiranya dirujuk kepada invois-invois tersebut, tidak ada cop penerimaan oleh pihak Defendan dalam invois-invois di muka surat di 26, 37 dan 46. SP: Saya setuju, tetapi saya sudah hantar invois pada pihak Jakel. PD1: Soalan saya, bahawa tiada cop penerimaan tadi, setuju? SP: Setuju. (Emphasis added) [See: Rekod Rayuan Vol. 2A, Encl. 4 Page 84] [105] Based on the above, we agree with the Defendant's submission that the Plaintiff failed to prove that the material was delivered to the Defendant at the material time and the supply of Farbel Exclusive Project by the Plaintiff was to a third party, i.e. Farbel High. As such, the Defendant was not liable to pay the Plaintiff for the price of the 50% of the clothes. [106] Therefore, we set aside the award of RM241,811.60 awarded by the learned Judge to the Plaintiff. Whether the Plaintiff's claim against the Defendant is barred by the doctrine of laches and acquiescence [107] The Defendant contended that the Plaintiff's claim was barred by the doctrine of laches and acquiescence. [108] We noted that the issue of delay and/or laches and/or acquiescence was never pleaded and/or raised in the Defendant's Statement of Defence, nor by the evidence of the Defendant's witnesses - DW1 and DW2 in their witness statements. It is merely an afterthought by the Defendant. [109] Furthermore, as discussed above, Clause 10.2 of the JVA provides the following: - "A breach of or default under this Agreement is not waived by any failure or delay by the Party in exercising or partial exercise of any right, power, authority, discretion or remedy under this Agreement." [110] We are of the view that due to the existence of the said Clause 10.2 of the JVA, there is no basis to invoke equity and as such the issues of laches and acquiescence do not arise. [See: Kumpulan Darul Ehsan Bhd v Mastika Lagenda Sdn Bhd [2017] 7 CLJ 525; [2017] 4 MLRA 365; [2017] 4 MLJ 561 (Federal Court)]. [111] In any event, the Plaintiff's action against the Defendant herein is well within the stipulated period of six (6) years provided under Section 6(1) of the Limitation Act 1953. [112] It can be seen from the Penyata Distribution of Funds that payments to the Respondent were made starting from 2014 and continued to be made until around 2017. Since this action was initiated in 2018, we are of the view that it is not barred by Section 6 of the Limitation Act 1953, nor is the doctrine of laches or acquiescence applicable herein. Exemplary Damages [113] For exemplary damages to be awarded, the claim must fall within the principles outlined in Rookes v Barnard [1964] AC 1129, specifically under the first category, namely, 'oppressive, arbitrary or unconstitutional action by a servant of the Government'. [114] In Sambaga Valli KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and Another Appeal [2018] 3 MLRA 488; [2018] 1 MLJ 784; [2018] 4 AMR 745, the Court of Appeal held: [33] The exemplary damages or punitive damages - the two terms now regarded as interchangeable - are additional damages awarded with reference to the conduct of the defendant, to signify disapproval, condemnation or denunciation of the defendant's tortious act, and to punish the defendant. Exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or where he has acted with a "contumelious disregard" for the right to the plaintiff. The primary purpose of an award of exemplary damages may be deterrent, or punitive and retributory, and the award may also have an important function in vindicating the rights of the plaintiff. (See Rookes v. Berhard [1964] 1 All ER 347; AB v Southwest Water Services [1993] All ER 609 Broome v. Cassell & Co [1971] 2 Q B 354, Laksamana Realty Sdn. Bhd. v. Goh Eng Hwa and Another Appeal [2006] 1 MLJ 675)." (Emphasis added) [115] Although Sambaga Valli is often cited to justify an award of exemplary damages, the Court also reminded: [43] Before departing, we would like to emphasis again that exemplary damages are not intended to compensate the plaintiff and are not recoverable as a matter of right. The amount of the exemplary damages award is left to the judge's discretion and is determined by considering the character of the defendant's misconduct, the nature and extension of the plaintiff's injury and the means of the defendant. The quantum of exemplary damages to be awarded must be appropriate to the wrongdoing inflicted to the parties involved. Exemplary damages must not be uncontrolled or arbitrary, they must be of an amount that is the minimum necessary to achieve their purpose in the context of the particular case." (Emphasis added) [116] Looking at the totality of the evidence produced before the court, we are of the view that the learned Judge had rightly awarded the Plaintiff with exemplary damages. [117] The facts and circumstances of the case show that the Defendant had deliberately breached the parties' agreements on the three (3) projects above. It is mala fide enough on the Defendant's part to breach one (1) agreement and deprive the Plaintiff's rights under the said agreement for years, let alone three (3) projects like in the present case. The breach was also continuous from one (1) project to another, and the Defendant had certainly gained an unlawful benefit. At the same time, the Plaintiff lost its commercial value and investment in the money, which is rightfully due to the Plaintiff. [118] The Defendant's action had also resulted in the Plaintiff being imposed with a penalty by MINDEF. Even though it is now established herein that the Defendant must be liable for the monetary penalty, the fact is clear that the Plaintiff's reputation is tarnished. [119] The learned Judge in his GOJ in Paragraph [63] had stated as follows: - "(v) An exemplary damage of RM10,000.00 was granted (nominal) because of the loss of reputation and suffering based on bad faith. The loss of reputation was because the Plaintiff was supplied with the nonoriginal 500,000 metres "Toray" materials. When the market knew about this, it has obviously affected the Plaintiff as the client (KDN/PDRM) would brand it as supplier of imitation products. The bad faith suffered by the Plaintiff was the fact that the Defendant concealed this fact until it was discovered by the Plaintiff." (Emphasis added) [120] We see no reason to disturb the findings of the learned Judge, considering the extent of bad faith on the Defendant's part towards the Plaintiff and for the suffering endured by the Plaintiff for almost ten years. Therefore, the Defendant is liable to pay RM10,000.00 as exemplary damages to the Plaintiff. The Defendant's Counterclaim [121] The Defendant claimed that the Plaintiff had an outstanding debt of RM1,310.397.19 due to the Defendant for the KDN Project and the MINDEF Project. To avoid repetition, the learned Judge dismissed this counterclaim, on the grounds briefly stated in paragraphs [11]-[15] above. [122] The Defendant had called DW2 to give evidence with regard to the sum owing by the Plaintiff to the Defendant. [123] The Plaintiff submitted that the testimony given by DW2 in support of the Defendant's counterclaim herein should not be accepted, as DW2 clearly does not have knowledge of the transactions between the parties. [124] We find that this argument is untenable. Even though DW2 was not the maker of the related documents, she was an individual working for the Defendant and was responsible for the company's accounting affairs. [125] DW2 was directly involved in the production of the supporting documents, and further, DW2 testified in Court based on the Defendant's documents and records. [126] Furthermore, we find that the documents referred to by DW2 during the trial were not contested on their authenticity or existence. Therefore, we are of the view that the requirement to bring the maker as a witness is not applicable. Nevertheless, DW2, as the maker of most of the documents, was indeed called as a witness for the Defendant. [127] Further, we find that the fact that the Plaintiff still owes the Defendant an amount of RM1,310,397.19 for the KDN Project and MINDEF Project had been admitted by the Plaintiff, through PW1, who had acknowledged the veracity of the Defendant's claim. YA: RM824,177.61, yang perlu dibayar Plaintiff? PD1: Yes yang perlu dibayar Plaintif sebagaimana menurut Encik Hasuna. Ok, dan soalan saya sampai yang ini, jumlah pembayaran penuh bagi invois tersebut masih belum dibayar oleh Plaintif kepada Defendan. Jumlah pembayaran penuh. Setuju? SP : Saksi angguk. PD1: Saksi setuju YA, yang soalan 78 YA: Ya. PD1: Okay dan, Plaintif sepatutnya telah menerima pembayaran daripada MINDEF, perlu membuat pembayaran kepada Plaintif. YA: Kepada? PD1: Macam mana? Uh tak, 79, saya dekat 79 YA: Okay. PD1: Setelah Plaintif menerima pembayaran daripada MINDEF, plaintif perlu membuat pembayaran kepada Defendan berkenaan invois di muka surat 134 tadi, dengan membuat penolakan-penolakan yang sah dan berkenaan, Encik Hasuna setuju tak? Dah dapat payment, bayar Jakel, sepatutnya lah, setuju ya? SP: Saksi angguk." (Emphasis added) [See: Rekod Rayuan Vol. 2A, Encl. 4 Page 70] [128] We are of the view that the learned Judge's finding that the evidence given by DW2 carries no weight due to the reason that she was not involved with the documentation was wrong. [129] This is because the documents regarding the Plaintiff's indebtedness and the testimony of DW2 based on the records of the Defendant are relevant and admissible in court under Section 73A (1)(a)(ii) of the Evidence Act 1950. "73A. Admissibility of documentary evidence in civil cases, etc