Kalbana A/P Sathasivam v Ashvin A/L Sathasivam (BA-22NCvC-186-05/2024)

In this case, the plaintiff filed 2 interlocutory applications against the defendant, namely.

an application for summary judgment to be entered against the defendant under Order 14 Rules of Court 2012; and 06/05/2026 16:29:11

an application to strike out the defendant’s counterclaim against the plaintiff pursuant to Order 18 rule 19(1)(a)(b) and/or (d) and/or Order 92 rule 4 Rules of Court 2012. Fact of case

Both of the plaintiff and defendant are siblings, the plaintiff being the elder sister of the defendant.

On 21st November 2013, both of them jointly executed a Sales and Purchase Agreement (“SPA”) for the purchase of a 2 ½ storey intermediate house known as No. 14, Persiaran Wangsa Baiduri, 47500 Subang Jaya, Selangor, for a purchase price of RM760,000.00 for which a deposit of RM76,000.00 was paid via four (4) instalments. Plaintiff claims that she paid the deposit from her personal funds as well as withdrew funds from her EPF savings. Subsequently, loan and mortgage agreements were entered with Bank Islam(M) Sdn Bhd to finance the purchase of the property.

Plaintiff contends that defendant’s name was included in the SPA and the loan agreements merely to assist her in securing bank financing to partly finance the purchase and due to defendant’s age which allowed for longer repayment period which plaintiff says was agreed by the defendant. It was agreed that the defendant will remove his name as co-owner and co-buyer when the plaintiff refinanced the property.

The plaintiff, in her statement of claim, averred that she solely dealt with the solicitors for the purchasers. She had also withdrawn her EPF savings which was used towards payment of the deposit.

Vacant possession of the premises was taken in May 2014. Initially, both plaintiff and defendant stayed in the house until 29 September 2018, when the defendant moved out.

Plaintiff also states that she solely paid towards the loan sum via her banking arrangements besides payments in respect of quit rent, assessment and utilities for the property.

It is the plaintiff’s contention that defendant was merely a bare trustee in law and had no legal rights over the property. Both parties had also executed waiver documents in respect of removing the defendant’s name as co-Borrower and co-owner by attempting to refinance the said property. However, due to a change in the bank’s policy, the plaintiff was required to reduce a percentage of the loan, which the plaintiff was unable to do and thus the effort to process the defendant’s waiver document felt through.

The defendant denies that the reason advanced by the plaintiff for inclusion of his name as co-Borrower and co-owner of the property. He says that he offered to use his name for the purchase as the plaintiff was a spend thrift, financially unstable and had poor credit score record and was not eligible to purchase and finance the property on her own.

The defendant denies that the plaintiff solely paid for the deposit. He states, in his statement of defence, that an aunt of theirs had also contributed towards payment of the deposit. He also averred that the plaintiff refused to furnish copies of the Loan Agreement and Charge documents despite repeated requests.

The defendant claims that there was a period when the plaintiff was unemployed and the monthly instalments were paid by their late father and the defendant. Thus, the defendant denies that he is a bare trustee.

The Plaintiff essentially prays in the Statement of Claims for the following reliefs:

a declaration that defendant holds ½ share of the property on trust for the plaintiff;

(ii) declaration that defendant is a bare trustee in law in respect of the property;

(iii) that the defendant executes all legal documents including Discharge of Charge from the financier and/or Sale and Purchase Agreement or letters of authority over the property in favour of the plaintiff.

Besides filing his defence, the defendant also made a counterclaim against the plaintiff.

In his counterclaim, the defendant alleges that he attempted to communicate his intention to sell his portion of the property, but the plaintiff refused to speak and communicate with him. As a result, he allegedly suffered mental distress, trauma, disturbance at work place and additional costs.

Further, he alleged that he suffered loss and damage from the benefit of purchasing his first home as a result of helping and aiding the Plaintiff to purchase the impugned property.

In addition, the defendant stated that the plaintiff had chased him out from the said house and he was left with no alternative but to rent another property, thus incurring additional costs.

Based on his counterclaim, the defendant sought, inter alia, the following remedies:

specific performance to execute any transfer of documents and/or the sale and purchase agreement between the plaintiff and defendant in respect of the property within three (3) calendar months from the date of judgment;

further and/or in the alternative, damages in addition to the specific performance;

the proceeds of the sale of the said property to be apportioned and transferred to the defendant as the co-owner;

the total amount of rental paid by the defendant from the date he was allegedly chased out from the property;

aggravated damages due to the loss of benefit for a purchase of his first house;

Exemplary damages due to the mental distress, trauma, disturbance and unnecessary costs incurred to the Defendant. Law Governing Summary Judgment applications

The law governing summary judgment applications are well-established. It is trite that the court must be satisfied on affidavit evidence that the defendant has raised a triable issue.

In the oft quoted celebrated case of Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MIJ 400, The Supreme Court held as follows:

In an application under O.14, the Court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue.

Under an O.14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such an assertion, denial or dispute is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbably in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially is an O 14 application.

Further, in Chan Heng Ping & Ors v Intradagang Merchant Bankers (M) Bhd [1955] 2 MLJ 363, the Court of Appeal held that mere denials in a defence can’t be he considered as evidence. It held that: “The Defendant must provide answers on oath which constitute evidence that they have e defence which was fit to be tried. It would be ideal if the Defendant says that he is not indebted to the plaintif, then it is up to the Defendant to explain as to why he is not so indebted. In the event, the Defendant can show some other reason for a trial then summary judgment should not be granted. In such a situation, so long as the court is satisfied that there are circumstances that ought to be investigated, summary judgment will not be entered against the Defendant”

In Huo Heng Old Co. (EM) Sdn Bhd v. Tang Tiew Yong [1987]1 MLJ 139, the court held as follows: “In opposing the application for summary judgment, the respondent must satisfy the court that with respect to the applicant's claim there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim (0.26A r.3(1)). But this cannot be achieved by raising facts which do not constitute a defence to the claim: Hookham v Mayle (1906) 22 TLR 241 nor by a mere general denial of indebtedness: Wallingford v Mutual Society (1880) 5 App Cas 685 HL, where Lord Blackburn said (page 704): “I think that when the affidavits are brought forward to raise that defence they must, if I may use the expression, condescend upon particulars. It is not enough to swear, “I say I owe the man nothing.” Doubtless, if it was true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so.”

After the close of pleadings, the plaintiff filed an interlocutory application to enter summary judgment against the defendants pursuant to Order 14 of the Rules of Court 2012. Therein, the plaintiff sought for the following main prayers:

a declaration that defendant holds the 1/2 of the property on trust for the plaintiff,

a declaration that the defendant is a bare trustee in law in respect of the property;

an order that the defendant be directed to sign and/or execute all legal documents not limited to the discharge of charge from the financier and for sale and purchase agreement and/or such other document or letters of authority ones the property in favour of the plaintiff.

In her affidavit in support, the plaintiff stated that both she and the defendant purchased the property vide a Sale and Purchase Agreement dated 21st November 2013. She stated that the inclusion of the defendant as co-owner and co-borrower was only to facilitate approval of the bank loan as otherwise the repayment period could be longer due to her age. This arrangement was agreed to by the defendant. It was also agreed that the defendant’s name would be removed as joint owner and joint borrower when plaintiff refinances the property later.

Plaintiff stated, in her affidavit in support, that she withdrew funds from her EPF savings to pay the deposit and proof of payment of the deposit were attached.

Vacant possession of the property was obtained in May 2014. Plaintiff stated since vacant possession was obtained, she had solely contributed towards the loan sum. The loan instalment repayment was solely made by the plaintiff without any contribution from the defendant. Plaintiff exhibited proof of the instalment payments in her affidavit in support.

Besides, payments of instalments towards the loan sum, Plaintiff also contends that she alone made payments for quit rent, assessment and utilities in respect of the property without any contribution from the defendant.

Although both plaintiff and defendant had lived in the house together since vacant possession was obtained in May 2014, the defendant moved out in July 2018. Throughout this period, plaintiff did not impose rent on the defendant.

The plaintiff also exhibited documents to evidence that parties had executed waiver documents regarding the removal of the defendant’s name as co-owner and co-borrower by refinancing the property. However, this effort did not go through due to a change in the Bank’s policy which required the Plaintiff to reduce a certain percentage of her loan amount, which she was unable to comply with.

In his affidavit in reply, the defendant only raised 2 points:

a preliminary objection was raised against the plaintiff’s affidavit in support on the basis that it contravened Order 41 rule 12 Rules of Court 2012; and

(ii) that summary judgment under O 14 is not applicable where declaratory reliefs and specific performance are prayed for. Order 14 only applies to claims of debt or liquidated damages.

It is pertinent to note that besides the above, nothing else was stated in the defendant’s Affidavit in Reply save for a general statement denying plaintiff’s assertions in her affidavit. The defendant did not dispute specifically any of the assertions in the plaintiff’s affidavit including facts that the Plaintiff contributed solely towards the purchase price, that she solely paid for rent assessment and utilities. Plaintiff’s assessment that she solely paid for the deposit with the aid of a withdrawal from her EPF savings was also not disputed.

Neither did the defendant proffer any facts or evidence to support his contention that he did contribute towards the instalment payment during the period he claimed the plaintiff was unemployed.

All the plaintiff’s averments in her affidavit was not specifically disputed, nor challenged and neither did the Defendant support his contentions in his statement of defence with proof and evidence in his affidavit in reply.

I shall now deal with the two (2) objections taken by the defendant in his Affidavit in Reply.

Plaintiff’s Affidavit in support contravenes O 41 & 12 Rules of Court (“ROC”)

Defendant raised a preliminary objection that the Plaintiff’s Affidavit in Support, which was affirmed before a Notary Public in India contravened Order 41 rule 12 ROC 2012.

The said Order 41 rule 12 provides as follows: “12. A document purporting to have affixed or impressed thereon or subscribed thereto the seal or signature of a Court, Judge, notary public or person having authority to administer oaths in a Commonwealth country and in the case of any other country the seal or signature of a consular officer of a Commonwealth country in testimony of an affidavit being taken before it or him shall be admitted in evidence without proof of the seal or signature being the seal or signature of that Court, Judge, notary public or person.

The defendant counsel submitted that the above rule provides that affidavits taken outside Malaysia must be affirmed before a notary public appointed by the Government and not a private notary.

With respect, the above submission is misconceived in law. O 41 r12 provides for the manner in which affidavits taken outside Malaysia shall be admitted in evidence without proof of the seal or signature. Nowhere in rule 12 does it provide that the affidavit must be affirmed before a government appointed notary.

In any case, the seal affirmed by the rotary in the Affidavit in support shows that the rotary is a registered person and appointed by the Government of India.

Moreover, the proof of seal is affirmed on the affidavit and the affidavit was notarized before a Notary Public in a Commonwealth country, namely India. Therefore, I find that the plaintiff’s affidavit is in compliance with Order 41 rule 12 ROC. Hence, the objection taken by the defendant in this regard is without merits.

(ii) O 14 is not applicable where declaratory reliefs and specific performance are prayed for

Counsel for the defendant highlighted that the plaintiff’s claims are for declarations and specific performance as prayed for in the Statement of Claim. Thus, it was submitted that declaratory reliefs and specific performance are not suitable to be applied for by way of a summary judgment application under Order 14. In support thereof, the cases of Amalan Tepat Sdn Bhd v. Panflex Sdn Bhd [2011] 5 MLJ 512 and Choong Mee Leng v. Lam Chong Seng [2005] 3 CLJ 35 were cited.

This Court finds that the defendant’s argument in this regard has no legal basis rooted in the Rules of Court 2012. Order 14 rule 1 clearly provides that Plaintiff may apply for judgment under Order 14 where the Defendant has no defence to a claim included in the writ.

Order 14 rule 1 provides as follows:

“Where in an action to which this rule applies a statement of claim has been served on a Defendant and that Defendant has entered an appearance in the action, the Plaintiff may, on the ground that the Defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that Defendant.

Subject to paragraph (3), this rule applies to every action begun by writ other than

a claim by the Plaintiff for libel, slander, malicious prosecution, false imprisonment, seduction or breach of promise of marriage; or

a claim by the Plaintiff based on an allegation of fraud.

This Order does not apply to an action to which Order 81 applies.

The only exceptions to applications for summary judgment under Order 14 is provided in Order 14 rule 2, which states that summary judgment does not apply to:

a claim for libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage;

(ii) a claim based on an allegation of fraud; and

(iii) an action for specific performance, which action ought to be commenced by way of Order 81.

The plaintiff’s claims, which includes declaratory reliefs, does not come within the exceptions to summary judgment applications listed in Order 14 (2) of the Rules of Court.

It is also noted that, contrary to what was submitted by the defendant, the plaintiff’s claim does not pray for specific performance. Hence, the only issue is whether declaratory reliefs may be claimed via a summary judgment application in Order 14.

Malaysian Civil Procedure 2024, Volume 1, Sweet & Maxwell [2024] states that the provisions of O 14 may be employed in action for declaratory reliefs (see page 136). In the case of Fadzil bin Mohamed Noor v. Universiti Teknologi Malaysia [1981] 2 MLJ 196, the Federal Court made a declaration that the employers dismissal from employment was illegal.

In S. Ponniah Sinniah v. Sivalingam s Ponniah & Ors [1991] 2 CLJ 1602, the High Court allowed summary judgment on a claim for declaration, amongst others, that the defendant held certain shares in trust for the plaintiff. (see also Avel Consultants Sdn Bhd & Anor v. Mohamed Zain Yusuf & Ors [1985] 2 MLJ 209, where the Supreme Court allowed a claim for declaration that the defendants were trustees for monies received by them on behalf of certain companies; Chong Ket Sui David v. Datuk Chau Tet On [1993] 2 AMR 1929; Wong Tham Meng v. Tiang Eng (Shah Alam Civil Suit No. MT4-22- 1-1183-1998).

Thus, I find that there is no legal impediment for a plaintiff to make an application for summary judgment seeking declaratory reliefs so long as the plaintiff is clear that the defendant has no defence to the plaintiff’s claim. Therefore, this objection raised by the defendant is also lacking in merit.

There were the only two (2) points raised by the Defendant in his affidavit in reply to the plaintiff’s O 14 application in Enclosure 10. Except for a general denial of every paragraph in the plaintiff’s affidavit in support, the defendant did not reply specifically to the factual assertions by the plaintiff in her affidavit. Neither did the plaintiff specifically dispute the plaintiff’s assertion that the inclusion of the defendant’s name in the Sale and Purchase Agreement and loan documentation was merely to enable the plaintiff to obtain an extended repayment of the loan period. Besides, the plaintiff’s claim’s that parties had executed waiver documents to remove the defendant’s name as co-owner and co-borrower through a refinancing of the property was also not disputed or challenged by the defendant in his affidavit in reply, although the waiver documents did not go through eventually due to a change in the Bank’s policy.

Thus, the plaintiff’s averments in her affidavit were left unchallenged by the defendant.

Nonetheless, this Court is of the view that the plaintiff has the burden of satisfying the Court that a resulting trust was created and that the true intention of the parties that the Defendant’s share in the property were to be held on trust for the plaintiff by the defendant.

In the English case of Paragon Finance plc v DB Thakerar & Co [1999] 1 A11 ER 400, it was held that: “A constructive trust arises by operation of law whenever the circumstances are such that it would be unconscionable for the owner of the legal property (usually not necessarily the legal estate) to assert his own beneficial interest in the property and deny the beneficial interest of another. In the first class of case, the constructive trust is a trustee. He does not receive the trust property in his own right but by a transaction by which both parties intend to create a trust from the outset and which is not impugned by the plaintiff. His possession of the property is coloured from the first by the trust and confidence by means of which he obtained it, and his subsequent appropriation of the property to his own user is a breach of that trust.”

Volume 38 of Halsbury’s Laws of England (3rd Edn) defines a resulting trust as follows: "Where a person purchases property in the name of another or in the name of himself and another jointly, or gratuitously transfers property to another or to himself and another jointly, then, unless there is some further indication of an intention at the time to benefit some other person or some presumption of such intention, the property is, as a rule, deemed in equity to be held on a resulting trust for the purchaser or transferor."

In the case of Wong Sin @ Henry Wong v. Wong Fui Ping & Anor [2022] MLJU 3512, the Plaintiff couldn’t obtain financing to purchase a property as he was 57 years of age. He requested the defendants who were his children, to be joint purchasers. He claimed to have told them that they would hold the property in trust for him and eventually transfer it back to him. Plaintiff also stated that he would bear all costs and that the property was not intended as a gift. The 2nd defendant agreed and jointly signed the Sale and Purchase Agreement (SPA). Plaintiff paid the remaining purchase price, serviced the ban alone covered all maintenance costs and retained all documents. When plaintiff asked 2nd defendant to transfer back her share of the property, she refused. The Kota Kinabalu High Court held that the evidence adduced showed that plaintiff retained control over the properties that he paid the full purchase price, managed all expenses, kept all keys to the properties as well as all documents relating to the purchase of the properties. These facts supported the finding that the defendants were not beneficial owners but held the properties as a resulting trust for the plaintiff and ordered the defendants to retransfer their shares to the plaintiff. A similar conclusion was also arrived at by the Court of Appeal in Loo Hon Kong v. Loo Kim Lim [2004] 4 CLJ 1

Although the cases of Wong Sin @ Henry Wong and Loo Hon Kong were decided after a full trial, what is important to note are the principles that can be distilled from both cases. These cases demonstrate that where it is clear that the true intention of the parties is that the defendants shares in the said properties are to be held by the defendants on trust for the plaintiff, the court may declare that the defendants are holding their shares in the said properties on resulting trust for the plaintiff. Hence, the defendants cannot conscientiously keep the properties for themselves but ought to retransfer their shares to the plaintiff.

In the instant case, the plaintiff has shown facts and evidence, supported by documentary proof, that she solely paid the deposit for the purchase of the property in four (4) instalments in the sum RM 76,000.00. The Defendant, in his statement of Defence, stated that an aunt had also contributed to the deposit. However, this was not deposed on oath in his affidavit in reply. The said aunt was also not named and neither the amount contributed. On the other hand, the Plaintiff showed documentary proof of her payment of the deposit.

The plaintiff also asserted, with documentary proof, that the loan instalment payments were made solely by her without any contribution from the defendant. The defendant claimed in his Statement of Defence that he, as well as his father, had also made instalment payments when plaintiff was unemployed.

However, the defendant failed to state so on oath in his affidavit in reply and neither was this supported by any documentary proof. The plaintiff also stated that she was the one who made payments for quit rent, assessments and utilities in respect of the property till todate besides paying for refurbishment works in respects of the property. These facts were unchallenged by the Defendant in his affidavit in reply.

Based on these facts with the supporting evidence provided amply demonstrated that the true intention of the plaintiff and the defendant was that the defendant’s share in the property was to be held by the defendant on trust for the plaintiff. The true intention was for the Defendant to act as a bare trustee in order to obtain a longer repayment period and not as a co-owner.

The defendant did not offer, in his affidavit in reply, any evidence or factual assertion that he contributed to the purchase of the house or its monthly instalments. The plaintiff had also shown with documentary proof that she had carried out refurbishment works on the property.

This court also finds that the execution of waiver documents to remove the defendant’s name as a co-owner and co-borrower in refinancing the property supported the plaintiff’s contention that the defendant was merely holding his share of the property in trust for the plaintiff, although eventually this transaction did not go through due to a change in the bank’s policy. Here again, the defendant failed to rebut the plaintiff’s contention in his affidavit in reply.

In the case of Bank Negara Malaysia v. Mohd Ismail & Ors (supra), the Supreme Court held that in an Order 14 (O.14) application, the court must be satisfied that the defendant has raised a triable issue on affidavit evidence. The determination of whether an issue is triable or not depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court.

Likewise, in Chan Heng Ping & Ors v. Intradagang Merchant Bankers (M) Bhd [1995] 2 MLJ 363, it was held that the duty on the Defendant is to provide answers on oath which constitute evidence that they have a defence which was fit to be tried.

In this instance, I find that the defendant has failed to materially dispute the plaintiff's claim. He has also failed to raise a triable issue or an issue requiring a full trial to be held.

In the circumstances, I allowed the Plaintiff's application for summary judgment as prayed for in Enclosure 10 with costs of RM 4,000.00 to be paid by the Defendant subject to allocatur fee.

The plaintiff filed an application to strike out the defendant’s counterclaim pursuant to Order 18 rule 19(1)(a)(b) and/or (d) and/or Order 92 rule 4 ROC 2012.

The plaintiff, in her affidavit, states that the counterclaim fails to disclose any details of the losses suffered by the defendant.

With regard to the claim for the rent, the Defendant has not given any particulars as to when he was allegedly “chased out” from the house and no details of the tenancy was disclosed.

On the defendant’s claim that he lost benefit for the purchase of his first home as a result of entering into this transaction for the purchase of the house together with the plaintiff, the plaintiff states that the defendant was in no position to have purchased a home as he had no savings and was dependant on the plaintiff for financial assistance after returning from the United Kingdom.

In respect of the defendant’s counterclaim for mental distress, trauma, disturbance and unnecessary costs incurred by defendant, the plaintiff averred that no particulars were provided except for the bare allegation.

In his reply, the Defendant once again raised a similar objection on the notarisation of the plaintiff’s affidavit. He stated that the affidavit was contrary to the provisions of Order 41 rule 12 ROC 2012 in that it was affirmed before a private notary public and not a public notary.

It is noted that the Defendant’s affidavit in reply, except for the objection taken on its notarisation, did not address nor reply directly to the plaintiff’s grounds for striking out the counterclaim. No effort was taken to substantiate or support his averments and allegations made in the counterclaim against the plaintiff.

The defendant’s affidavit in reply to the striking out application contained matters irrelevant to the Plaintiff’s application to strike out the counterclaim. For instance, the Defendant denied having signed the waiver documents, which were not directly relevant to the Defendant’s counterclaim.

In that regard, the plaintiff’s statements in her affidavit were mostly not directly challenged by the defendant in his affidavit.

The law pertaining to striking out applications are well-settled. The court will exercise its right under Order 18 rule 19 where it can clearly be seen that a claim or defence is prima facie obviously unsustainable. It is aimed at culling actions in an unnecessary trial or if the claim is frivolous, vexatious or an abuse of the court process or if the defence is unarguable (see Malaysian Civil Procedure 2024, volume 1, Sweet & Mancoll

(2024).

In the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, the Supreme Court laid down the principles guiding these applications in the following words: “The principles upon which the court acts in exercising its power under any of the four limbs of O 18 r 19(1) of the Rules of the High Court 1980 are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule and the summary procedure can only be adopted when it can clearly be seen that a claim or answer is on the face of it ‘obviously unsustainable’. It cannot be exercised by a minute examination of the documents and facts of the case in order to see whether the party has a cause of action or a defence”.

I will begin by addressing the preliminary objection raised by the defendant regarding the affidavit in support of the striking out application affirmed by the plaintiff before a rotary public in India. The defendant alleges that the Affidavit contravenes Order 41 rule 12 ROC 2012 in that it was not affirmed by a rotary public appointed by the Government of India. It is argued that O 14 r.12 provides that an affidavit taken outside Malaysia must be affirmed by a notary public appointed by the government and not by a private notary.

With all due respect, this contention is misconceived. O 41 r.12 does not make provision for an affidavit taken outside Malaysia to be sworn before a government appointed notary. On the contrary, O 41 r 12 is a provision that provides for the admissibility of affidavits taken outside of Malaysia without proof of seal. What it provides is that a document which has the seal or signature of a Court Judge, notary public or any person having authority to administer oaths in a Commonwealth country affixed or impressed thereon shall be admitted in evidence without having to show proof of the seal or signature of that Court, Judge, notary public or person.

In this case, the affidavit having been affirmed in India, which is a Commonwealth country, before a notary public fulfills the requirement of Order 41 rule 12. Moreover, from the seal, it appears that the notary is appointed by the Government of India and his seal is affixed in the affidavit. Thus, the objection taken on the notarization of the plaintiff’s affidavit is without merits.

With regard to the counterclaim filed by the defendant, there are essentially three (3) allegations levelled against the plaintiff. They are:

the defendant suffered mental distress, trauma, disturbance at the workplace, and additional costs due to an alleged refusal by the plaintiff to resolve this matter;

(ii) loss and damages from the benefit of purchasing his first home as a result of helping and aiding the plaintiff in purchasing the said property jointly with the plaintiff; and

(iii) he incurred additional costs in renting another property as a result of the plaintiff’s action in chasing the defendant from the property.

In respect of allegation (i) above that he suffered mental distress, trauma, and disturbance, this court finds that there are insufficient facts laid out in the counterclaim. Particularly, no details of the exact nature and conduct of the plaintiff was pleaded which caused the plaintiff to suffer mental distress, trauma, and disturbance. No facts were also pleaded as to whether, as a result of the mental trauma, the defendant sought medical treatment from a health care professional, which would substantiate and support his claim for damages.

Although the defendant stated that he suffered disturbance at his workplace, no particulars were pleaded as to the nature of the disturbance, whether they were physical, psychological or spiritual in nature. The defendant also failed to plead what additional costs he incurred due to the plaintiff’s conduct.

With regard to the claim for aggravated damages incurred by the defendant due to the loss of benefit for purchase of his first home as a result of his purchasing the subject matter of this suit, I am in agreement with the plaintiff counsel’s submission that there is no duty in law on the plaintiff to ensure the defendant’s eligibility to purchase properties under any government scheme is preserved. There is no allegation either in the defense or the counterclaim by the defendant that he was coerced, compelled, or pressured into purchasing this property in question. Thus, the plaintiff has failed to plead particulars in his counterclaim how the plaintiff is responsible for the purported loss and damage he suffered in not being able to purchase his first home under the government scheme.

In respect of item (iii) above on the defendant’s claim that he incurred additional costs to rent another property as a result of being chased out of the house by the plaintiff, it is found that insufficient particulars were pleaded in the counterclaim by the defendant to support that claim. The defendant did not provide the date he was purportedly “chased out” by the Plaintiff, and neither did he provide information as to the address of the property he rented, details of the tenancy, period of tenancy, and rental sum.

It is trite law that pleadings ought to contain sufficient particulars of the claim or defence so as to form a proper cause of action, claim or answer.

The counterclaim of the defendant herein is general in nature, unreasonable, and lacking in merit.

In the circumstances, I find that the defendant’s counterclaim does not disclose a reasonable cause of action against the plaintiff. The defendant has failed to substantiate any of the three (3) claims with sufficient facts or details of the losses allegedly suffered.

Therefore, it is found that the counterclaim is obviously unsustainable and it is plain and obvious that the counterclaim ought to be struck out.

Hence, the plaintiff’s application to strike out the defendant’s counterclaim is allowed with costs of RM4,000.00 subject to allocatur fee. Dated 4 May 2026 sgd DONALD JOSEPH FRANKLIN JUDICIAL COMMISSIONER HIGH COURT MALAYA AT SHAH ALAM For the Plaintiff: Gunaletchumi a/p Alagan Tetuan Sandosh Anandan For the Defendant: Fahrhanah Nisshaa binti Sk Syed Ambrul Zaman Tetuan Hanah, Chong & Co