Kasran Bin Yahya v Malayan Banking Berhad (BA-22NCvC-353-08/2022)

whether Suit 353 indeed discloses no reasonable cause of action;

whether Suit 353 is undeniably scandalous, frivolous or vexatious; and/or

whether Suit 353 is an abuse of the process of the Court. [5] The position taken by the Defendant is that the answers to the above questions are in the affirmative and expectedly, the Plaintiff has taken the converse stand. The Case for the Plaintiff [6] In resisting the Defendant’s Notice of Application, the Plaintiff raised the point that he had resigned as a director of Seribong Engineering Sdn Bhd (“SESB”), a company that was granted various facilities (loans) by the Defendant, on 1 August, 2006. [7] The Plaintiff further pointed out that he had stood as a guarantor for the loans amounting to only RM500,000.00 but additional loans were granted by the Defendant to SESB after he had resigned from SESB. [8] Most importantly, the Plaintiff underscored the fact that this present Suit 353 is predicated on the “discovery of new information/document”. The Case for the Defendant [9] The crux of the Defendant’s submissions in support of its Notice of Application to strike out this Suit 353 is premised on the doctrine of res judicata. It is the Defendant’s contention that this doctrine prohibits the Plaintiff from re-litigating the present claim which had been duly adjudicated upon in the Sessions Court of Shah Alam in Summons no. B52-NCC-35-02/2015 (“Suit 35”). [10] In that said Suit 35, the Defendant has succeeded in obtaining judgment in a claim for the outstanding sum on a loan that the Defendant had given to SESB and the Plaintiff was found liable as guarantor for that loan. [11] The Defendant further drew this Court’s attention to the following pertinent background facts, namely: • that the Defendant had commenced Suit 35 in February 2015 in the Sessions Court against the Plaintiff as guarantor for a loan granted to SESB in which SESB had defaulted in the various facilities granted by the Defendant; • that the Defendant had obtained summary judgment against the Plaintiff in Suit 35 in September 2015; • that the Defendant had obtained Receiving and Adjudication Orders against the Plaintiff in December 2016; • that in 2020, the Plaintiff had filed an application for, inter alia, an extension of time to appeal against the summary judgment and that application was dismissed; • that the Plaintiff then proceeded with an appeal at the Court of Appeal; • that prior to the hearing of the appeal at the Court of Appeal, the Plaintiff had also filed an application to adduce further evidence; • that both the above applications were dismissed by the Court of Appeal; • that the Plaintiff had also filed a collateral action against the defendant bank and several officers of the defendant bank vide High Court of Shah Alam Civil Suit No. BA- 22NCvC-474- 11/2020 (“Suit 474”); • that although a judgment in default was duly obtained in Suit 474, this was subsequently set aside: and • that the Plaintiff did not appeal against that decision and did not pursue the matter further and in fact on 27 May 2021, the Plaintiff filed a notice of discontinuance of Suit 474. [12] Based on the above factual background, it is the Defendant’s contention that the issues raised in this present Suit 353 are similar to those that been or should have been ventilated in the previous proceedings and thus this present Suit 353 is caught by the doctrine of res judicata in the wider sense. [13] The Defendant has also raised the defence of limitation in support of its Notice of Application to strike out the Plaintiff’s Writ and Statement of Claim. Application of the Law and Principles to the Present Matter [14] The law and principles governing the Striking Out of a Writ and Statement of Claim, as laid down in Order 18 rule 19(1)(a) – (d) of the Rules of Court 2012, are uncontroversial and are well established. [15] This Court takes cognizance of the fact that no evidence shall be admissible on an application under the first of the four available limbs/paragraphs of Order 18 rule 19(1) of the Rules of Court 2012 and that this provision is only to be invoked in clear and obvious cases. Both parties have cited the seminal case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 2 AMR 1969; [1993] 4 CLJ 7; [1993] 3 MLJ 36. [16] It is incumbent on this Court to examine the factual matrix of this case to see if any of the grounds relied on by the Defendant in this present application has indeed been made out. [17] Mindful of the pertinent background facts as adumbrated in paragraph [11] and guided by the authorities in cases such as Lin Wen-Chih & Anor v Pacific Forest Industries Sdn Bhd & Anor [2020] ANEH 1868; [2020] 1 LNS 2104; [2021] 4 MLJ 367; [2021] 2 MLRA 376, Kluang Wood Products Sdn Bhd & Anor V Hong Leong Finance Bhd & Anor [1998] 4 AMR 4225; [1999] 1 CLJ 1; [1999] 1 MLJ 193; [1998] 2 MLRA 221 and Akitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd [2007] 5 AMR 453; [2007] 6 CLJ 93; [2007] 5 MLJ 697; [2007] 2 MLRA 584, this Court is in agreement with the Defendant that this present Suit 353 is caught by the doctrine of res judicata in the wider sense. [18] On this ground alone, this application by the Defendant to strike out the Plaintiff’s Writ and Statement of Claim should be allowed. [19] Be that as it may, the three matters raised by the Plaintiff in paragraphs [6], [7] and [8] above warrant further due consideration. [20] On the point that the Plaintiff had resigned from SESB and that he had stood as guarantor for the loans amounting to only RM500,000.00 but additional loans had been granted by the Defendant to SESB after he had resigned from SESB, this Court makes reference to Clause 12 and Clause 13 of the Guarantee which provide that “ … the guarantee herein shall be a continuing guarantee” and “This Guarantee shall not be determined or in any way prejudiced by Any change on the constitution of the Customer or any of the undersigned, whether by retirement, expulsion, death … ” respectively. These clauses bind the Plaintiff. [21] A vital point is that the liability of the Plaintiff had never been increased but remained at RM500,000.00. [22] On the submission by the Plaintiff that this present Suit 353 is predicated on the “discovery of new information/document”, this Court is of the considered view that the said new information/document was never concealed from the Plaintiff. [23] Counsel for the Plaintiff urged this Court to take note of the maxim: “Nullus commodum capere potest de injuria sua propria”; which according to counsel means: “A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court.” [24] Henceforth the question: Has the Defendant “having done wrong”? [25] Having considered the totality of materials available before the court, this Court is of the considered view that the Defendant in the instant Suit 353 had all along acted in accordance with their statutory and contractual rights in all the proceedings preceding this action. [26] In response to the maxim highlighted by counsel for the Plaintiff, the riposte is: Is qui nihil mali fecit, iure petere potest. [27] The Defendant in the present Suit 353 who has done nothing wrong can claim justice. This is a proper case for this Court to exercise its powers to Strike Out the Plaintiff’s Writ and Statement of Claim pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012. [28] The Notice of Application by the Defendant in Enclosure 10 is allowed with costs of RM10,000, subject to allocator. Dated: 6 November, 2023 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Periasamy Karuppan with Aundre Onn for the Plaintiff (Messrs. Periasamy & Co.) SY Ng with Noor Azanida Alladin for the Defendant (Messrs. Raja, Darryl & Loh)

of the Rules of Court 2012. [2] The Plaintiff, Kasran bin Yahya, has filed this action (“Suit 353”) against the Defendant, Malayan Banking Berhad, in this Court. The Plaintiff’s causes of action are premised on, inter alia, fraud, breach of duty, abuse of process and conspiracy to injure. The Plaintiff is seeking a 10/11/2023 11:33:16 BA-22NCvC-353-08/2022 Kand. 43 number of declarations and damages amounting to about RM200,000,000.00. The Central Issues [3] The dominant issue in this application is whether this is a proper case whereby this Court should invoke its powers under Order 18 rule 19(1) of the Rules of Court 2012 to dismiss Suit 353. [4] In determining the above principal issue, this Court will have to first contend with a number of subsidiary issues, namely,