Kartekesu a/l Ulaganathan v 1. Masahiro Ozutsumi (BA-12ANCVC-190-11/2019)

SADAYUKI SUZUKI (No. Paspot: TK0792614)

HAJIME EIKAWA 20 (No. Paspot: TZ1052026) ... RESPONDEN-RESPONDEN 25 30 2 DALAM MAHKAMAH SESYEN DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN NO. BA-A52NCVC-243-06/2017 5

MASAHIRO OZUTSUMI (No. Paspot: TZ1174558)

SADAYUKI SUZUKI 10 (No. Paspot: TK0792614)

HAJIME EIKAWA (No. Paspot: TZ1052026) ... PLAINTIF-PLAINTIF DAN 15 KARTEKESU A/L ULAGANATHAN (No. K/P: 820419-07-5583) [berniaga atas nama dan gaya IDRFX Academy (002578802-U)] ... DEFENDAN 20 GROUNDS OF JUDGMENT INTRODUCTION 25

This is the Appellant’/Judgment Debtor’s appeal against the decision of the Session Court made on the 8th of November 2019 in respect of the Respondents’/Judgment Creditors’s application for the examination of the Judgment Debtor’s financial capability and means. 30 3

On the 5th of March 2018, the Respondents/Judgement Creditors obtained a Judgment in Default of Appearance for the sum of RM 198,239.99 together with interest and cost.

No steps was taken by the Appellant/Judgment Debtor to set aside the said Judgment in Default. Subsequently, the Respondents/Judgment Creditors filed a Judgment Debtor Summons against the Appellant/Judgment Debtor and obtained an Order dated 8th of November 10 2019.

Basically, under the said Order, the Appellant/Judgment Debtor is ordered to pay the judgment sum of RM 198,239.99 by way of monthly instalments of RM 30,000.00 until full and final settlement (of the said 15 judgment sum).

Hence, this appeal is by the Appellant/Judgment Debtor.

20 PARTIES SUBMISSIONS/ CONTENTIONS (amongst others) APPELLANT/ JUDGMENT DEBTOR RESPONDENTS/ JUDGMENT CREDITORS The Learned Session Court Judge had erred in the computation of RM 30,000.00 monthly instalments. It was an arbitrary figure given the fact that no evidence was led as to the sum of monthly instalment being affordable to the Appellant/ Judgment Debtor. In other words, The appeal is misconceived as the said Decision/Order of the Session Court dated 8th November 2019 does not fit within the ambit of section 3 of the Court of Judicature Act. Therefore, the Appellant’/ Judgment Debtor’s appeal is incompetent and fails in limine. 4 the figure of RM30,000.00 as the monthly instalments is plucked out from thin air. The Session Court was plainly wrong in deciding that there was insufficient judicial appreciation of the evidence which calls for appellate intervention.

Firstly, let me deals with the issue raised by the Respondents/Judgment 5 Creditors as enunciated above. In short, the said decision of the Session Court is not appealable.

The relevant sections, namely, Section 3 , section 27 and Section 29 of the Courts of Judicature Act are reproduced below :- 10

“Section 3 of the CJA under the heading of interpretation defines the word “decision” with the filtering effect of the excluding clause as follows:- “”decision” means judgment, sentence or order, but does not include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties.” 5

(ii) Section 27 The appellate civil jurisdiction of the High Court shall consist of the hearing of appeals from Subordinate Courts as hereinafter provided.

(iii) Section 29 All civil appeals from a subordinate court shall be by way of re-hearing, and the High Court shall have the like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on the hearing of appeals from the High Court.”

In this regard, the Respondents/Judgement Creditors brought the Court’s attention to the case of Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia & Anor (2020) 3 CLJ 153 and (b) Kuna 5 Sockalingam Mudalir v. Yang Saripah & Anor (1953) 1 LNS 39. The Federal Court’s held inter alia, as follows :- “(9) The present position in the law clearly shows that an appeal does not lie against a decision in an amendment application made in the course of trial as is in the instant action, and moreover, such a decision does not finally dispose of the rights of the parties. There was no basis in the respondents' contention that the High Court's decision was appealable as it was a ruling made in the course of hearing the interlocutory application but rather a decision made at the conclusion of the hearing of the said application on its merits. Yet, the respondents had obviously misconstrued the definition of 'decision' in s. 3 in the context of s. 67 of the Act. What characterises as being a decision as being appealable or 6 otherwise is not only confined to a question of whether a ruling has disposed of the final rights of the parties but also whether it is a decision made in the course of a trial or matter. Therefore, it matters not if the decision is made at the conclusion of the interlocutory application. The plain fact was that such interlocutory application was indisputably made and heard in the course of the trial of the instant suit. It was decided before the High Court delivered its judgment on liability. (para 61)

The appellant was successful in all of their contentions. The High Court's decision to allow the amendment application was not appealable to the Court of Appeal. The appeal was incompetent in limine and, as such, could not be laid before the Court of Appeal as it was clearly precluded by law. (para 66).”

From the wording of the said Section 3 of the Court of Judicature Act reads together with section 27 and section 29 of the Court of Judicature Act, it is clear that this Court can hear all civil appeals by way of rehearing 5 from the Subordinate Courts except ruling made in the course trial or hearing of matters which does not finally disposed the rights of the parties.

Thus, the pertinent question is whether the said Session Court’s decision dated 8th of November 2019 in ordering the monthly payments/instalments 10 of RM 30,000.00 is a finality in disposing or determining the right of the paties herein. If the answer is affirmative, then the said decision is appealable. 7

I am incline to agree with the submission of the Appellant/Judgment Debtor that the said decision of the Session Court in respect of the said Judgment Debtor Summons upon examining the Appellant/Judgment Debtor was a final decision as to the Appellant’/Judgment Debtor’s ability of satisfying the judgment sum. It could not be said that the said decision 5 delivered on the 8th of November 2019 was “made in the course of trial or hearing of any cause or matter which does not finally dispose of the rights of the parties”. In other words, the said decision had brought a conclusion to the procceding between the parties herein. The case of Tetuan J & S Holding Sdn Bhd v. A. Karim Hasan & Anor [2000] 1 MLRH 476 (Tab 10 5), dealt with a situation when the decision is appealable or not appealable within the meaning of the word decision as defined in Section 3 of the CJA. The relevant principle is as follows: “[29] It is the view of this court that in order to determine whether an order or decision is final, that order or decision must have determined the principal matter before the court thereby having concluded the main dispute and consequently, does not require further hearing or decision of the case to be made by the court on the whole of the proceedings. In other words, the order or decision should not have dealt with the final rights of the parties on the subject matter in dispute which means, it is not conclusive of the main suit. In such a situation, the order or decision is not appealable within the meaning of the word "decision" as defined in s 3 of the Courts of Judicature Act 1964. [30] On the other hand, if the order or decision finally dispose of the principle matter or the subject matter in dispute thereby bringing a conclusion to the whole of the proceedings without further date of hearing, it is the view of this court 8 that the order or decision in those circumstances is appealable.”

In respect of the case of Asia Pacific Higher Learning Sdn Bhd cited (supra) by the Respondents’/Judgement Creditors’s counsel, with due respect, I found that it is not applicable to this appeal. This is due to the 5 reason that the decision was on an amendment application which is not appealable unlike this appeal which, it is an appeal against a final order.

Thus, I am of the view that the Appellant/Judgment Debtor has every right to appeal herein.

Now, turning to the Appellant’/Judgment Debtor’s main ground of argument for this appeal namely, the Learned Session Court Judge had erred in the computation of RM 30,000.00 monthly instalments. It was an arbitrary figure given the fact that no evidence was led as to the sum of 15 monthly instalments being affordable by the Appellant/Judgment Debtor. In other words, as if the figure of RM 30,000.00 as monthly instalments is plucked out from thin air.

From my reading of the “Alasan Penghakiman written by the learned 20 Session Court Judge”, regretably, there was no reason given by the learned Session Court Judge in arriving to his decision and in ordering the Appellant/Judgment Debtor to pay a monthly instalment in the amount of RM 30,000.00 to the Respondents/Judgement Creditors.

Based on the testimony of the Appellant/Judgment Debtor himself, his monthly income is in the region of RM 13,000.00 to RM 15,000.00. 9

Accordingly, with no reason given by the learned Session Court Judge as to how he arrived to the sum of RM 30,000.00 being the monthly instalments and couple with the fact that the Appellant/Judgment Debtor admitted his monthly income is RM 13,000.00 to RM 15,000.00, only, I found that, with due respect, that the Session Court’s decision to award 5 the instalments amounting to RM 30,000.00 is plainly wrong.

Further, the Appellant’/Judgment Debtor’s counsel submitted to this Court that assuming the Appellant/Judgment Debtor earns higher end of RM 15,000.00, after deducting RM 13,600.00 (monthly expenses), the 10 monthly balance disposal salary of the Appellant/Judgment Debtor is only RM 1,400.00. The particulars of expenses are set out as below:-

House rental RM 2,000.00 2. Family daily expenses RM 3,000.00 3. Food and travelling RM 3,000.00 4. Hotel RM 1,500.00 5. Flight RM 1,200.00 6. JD’s wife insurance RM 200.00 7. Utility RM 700.00 8. Others RM 2,000.00 TOTAL RM 13,600.00 15 20. However, I have noted that other than the house rental and flight, other expenses are not supported with documentary evidence, such as receipts or invoices of the said expenses.

Thus, taking into account the higher end of the Appellant’/Judgment 20 Debtor’s salary in the sum RM 15,000.00 and after deducting RM 2,000 (house rental) and RM 1,200 (flight), (both which are supported by 10 documentary evidence), the monthly balance disposable salary of the Appellant would be in the sum RM 11,800.00 (RM 15,000.00 – RM 2000 – RM 1200 = RM 11,800.00).

It is pertinent to note that at the Session Court below, the 5 Respondents’/Judgment Creditors’s counsel highlighted the following facts:-

the Respondents/Judgment Creditors had invested their monies with the Appellant/Judgment Debtor on October 2016;

the largest amount in the Appellant’/Judgment Debtor’s Maybank account as at 13th of November 2016 was in the sum of RM 772,927,79; and 15

the Appellant/Judgment Debtor had transferred a substantial amount of monies to his wife, Nalini a/p Ramayiah.

Accordingly, as there was a substantial amount of monies being transferred by the Appellant/Judgment Debtor to his own wife, there is no 20 issue of the Appellant/Judgment Debtor not being able to pay for the expenses tabulated above. In any event, I would further deduct the sum RM 1800 (for general expenses) from monthly balance disposable salary of RM 11,800.00.

In light of the aforesaid reasons, this Court has decide as follows:- “1. Rayuan Perayu dibenarkan di mana Mahkamah ini atas budibicaranya sendiri, mengubah Perintah Mahkamah Sesyen bertarikh 08 November 2019 hanya setakat pembayaran 11 Ringgit Malaysiia Satu Ratus Sembilan Puluh Lapan Ribu Dua Ratus Tiga Puluh Sembilan dan Sen Sembilan Puluh Sembilan (RM 198,239.99) dan kos sebanyak Ringgit Malaysia Satu Ribu Tiga Ratus Lima Puluh Dua (RM 1,352.00) dibayar kepada Responden-Responden secara ansuran sebanyak Ringgit Malaysia Sepuluh Ribu (RM 10,000.00) setiap bulan sehingga penyelesaian penuh;

Bahawa pengubahan pembayaran ansuran tersebut bermula dari tarikh 08 November 2019; dan

Tiada perintah atas kos.” Dated 2nd of February 2021 Signed 5 (KHAIRIL AZMI BIN HAJI MOHAMAD HASBIE) Judicial Commissioner High Court Shah Alam 10 For the Plaintiffs : Encik Shane Cheng (Messr Cheng Poh Heng & Co) For the Defendant : Encik M. Kunasegaran 15 (Messr Kuna & Co) 12 CASE REFERENCE 1) Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia & Anor

3 CLJ 153. 5 2) Kuna Sockalingam Mudalir v. Yang Saripah & Anor (1953) 1 LNS 39. 3) Tetuan J & S Holding Sdn Bhd v. A. Karim Hasan & Anor [2000] 1 MLRH

10 CASE STATUTE 1) Section 3, 27 and 29 of the Courts of Judicature Act. 15 20 25