Malayan Banking Berhad v Cheong Hock @ Cheong Kim Hock (JA-12A-NCvC-15-09/2020)

This is an appeal against the decision of a learned Sessions Court Judge at Johor Bahru dated 24.8.2020; which allowed the Respondent/Plaintiff’s claim for Summary Judgement with costs in the sum of RM2,500.00.

For ease of reference hereinafter, the Appellant shall be referred to as the ‘Defendant’; and the Respondent, as the ‘Plaintiff’ – i.e. the nomenclature used for the parties at the Sessions Court.

The defendant is a financial institution licensed under the Banking & Financial Institutions Act 1989.

The Plaintiff is said to be an account-holder of the Defendant under a Fixed Deposit (‘FD’) Account vide receipts no: 201011271991 (for RM18,000.00 only) and 201011272003 (RM120,000.00 only) both dated 11.11.1992.

The suit at the Sessions Court was for the recovery of the total sum of RM138,000.00 represented by both the FD receipts above; interest on the said sum of 7.90% per annum from 11.11.1992 to date of full settlement; general and exemplary damages; interest upon the said Page 4 of 14 damages at the rate of 5% per annum from the date it accrues to the date of full settlement and costs.

As a result of the application by the Plaintiff for Summary Judgement, the learned Sessions Court Judge granted the following on 24.8.2020: a) Judgement against the Defendant in the sum of RM138,000.00; b) Interest on the said sum of 7.90% per annum with effect from 11.11.1992 until the date of full settlement; c) General and exemplary damages to be taxed by the Registrar; and d) Costs in the sum of RM2,500.00 to the Plaintiff.

It is against this Judgement that the Defendant appeals.

It is to be noted that at the hearing of this appeal before this Court on 15.4.2021, learned Counsel for the Plaintiff intimated that the Plaintiff did not intend to pursue and/or argue to preserve that part of the judgement that related to the assessment of damages granted in the said Summary Judgement.

It was the Defendant’s argument that the learned Sessions Judge had erred in granting this Summary Judgement on the following grounds: Page 5 of 14 a) She (the learned Sessions Judge) had failed to consider that the Plaintiff had not proved that he was truly an account-holder by producing the original FD receipts concerned (presumably for the purposes of the Summary Judgement application, as the trial had yet to commence at that stage); b) That the Plaintiff had not discharged the burden of showing that there were transactions with regard to the purported FD account since it was opened [Standard Chartered Bank v. Tiong Ngit Ting (f) [1997] 5 CLJ 552]; c) That the Plaintiff had failed to discharge the burden of proving that he had never withdrawn the sums involved in the said FD Account since 11.11.1992; d) That the learned Sessions Judge had failed to consider the presumption that the monies in the said FD Account could have been paid over to the Plaintiff, given that there was no claim for the same for more than 27 years [Standard Chartered Bank v. Tiong Ngit Ting (f) (supra)]; e) That the learned Sessions Judge failed to weigh out adequately the fact that there was considerable doubt in this case; as for example the likelihood that the Plaintiff could have lost the FD receipts and then recovered the same; particularly as the Plaintiff had taken no action for more than 27 years; and then suddenly awakened to this claim against the Defendant; Page 6 of 14 f) That the learned Sessions Judge failed to take into account that the interest element on the relevant FD receipts was stated as 7.90% per annum on the total sum of RM138,000.00 with effect from 11.11.1992 to the date of maturity one month later (i.e. 11.12.1992); and that it is common knowledge that banking practice in this country allows for bank monthly interest rates to fluctuate from time to time. Thus, by allowing the interest element to be set at the rate of 7.90% from 11.11.1992 to date of full settlement of the judgement sum was plainly wrong; thereby making this aspect of the case a triable issue. g) That the Plaintiff chose not to respond to the Defendant’s Affidavit in Reply with regard to the issue above; thereby tacitly accepting the averment in the said Affidavit in Reply. [see the case of Ng Hee Thoong & Anor. v. Public Bank Berhad [1995] 1 CLJ 609]; h) That as a result of the error of the learned Sessions Judge on the interest element that the interest accumulated would be in the region of RM439,462.70 as at 30.6.2020; which would make it more than twice the principle sum that is claimed by the Plaintiff in this action; i) That the Plaintiff is not entitled to general and exemplary damages as ruled by the learned Sessions Judge. (see paragraph [8] above for the Plaintiff’s response to this issue); Page 7 of 14 j) That this was not an appropriate case for Summary Judgement as there were clearly triable issues involved [Bank Negara Malaysia v. Mohd. Ismail Ali Johor & Ors. [1992] 1CLJ Rep 14 and Ng Ah Bah & Ors. v. Ramanda Sdn. Bhd. [1996] 1 MLJ 62]]; and k) That the Plaintiff’s Affidavit in Support of this application for Summary Judgement and the further Affidavit in response to the Defendant’s Affidavit in Reply were both defective, having been deposed by the Plaintiff’s Solicitor and not by the Plaintiff himself [Malayan Banking Bhd v. Charterefield Corp. Sdn. Bhd. [2001] 6 CLJ 407].

It was averred by the Plaintiff that the Defendant was in breach of contract in that it had refused, neglected and/or failed to honour its promise to return the sum of RM138,000.00 together with interest at the rate of 7.90% per annum thereon; which was plainly stated upon the relevant FD receipts. This action was thus premised upon that breach. [Voo Foot Yiu v. Overseas Chinese Banking Corp. Ltd. [1936] 1 LNS 72; and Kian Lup Construction v. Hongkong Bank Malaysia Bhd. [2012] 7 CLJ 32].

The Defendant was authorised under the Banking & Financial Institutions Act 1989 to be a monetary deposit taking institution which provided interest upon those deposits.

That the Plaintiff, at all material times, was an account-holder of an FD Account with the Defendant, as evidenced by the relevant FD receipts (the originals of which are in the safe keeping of the Plaintiff’s Solicitors and which would be produced on demand).

That the Defendant never transferred the said sum together with the interest thereon to the Unclaimed Monies Department; and there was indeed no record of the same ever being transferred to the said Department [see page 25 of the Appeal Record ~ Encl. 3].

It was the Plaintiff’s stand that the learned Sessions Judge was wholly correct in ruling that the Defendant did not have any triable issues nor any matter that needed to be tested by the examination of witnesses. [Cempaka Finance Bhd. v. Ho Lai Ying & Anor. [2006] 3 CLJ 544].

The said FD receipts are prima facie evidence against the Defendant qua Bank of a debt owing to the Plaintiff qua account-holder/customer [Standard Chartered Bank v. Tiong Ngit Ting (f) [1997] 5 CLJ 552].

The failure by the Defendant to honour the FD receipts on the grounds of the Plaintiff’s inability to show a paper trail of having opened the said FD Account with the Defendant; that the Bank would only have retained the monies concerned for 7 years after which it would have transferred the same to the Unclaimed Monies Department; that the Plaintiff is put to strict proof; and that the original receipts would have to be produced at the trial; are nothing more than a tactical manoeuvre of smoke and mirrors. [Public Bank Bhd. v. Ng Yoon Lin [2001] 1 CLJ 286; Page 9 of 14 and Voo Foot Yiu v. Overseas Chinese Banking Corp. Ltd. (supra)]. In point of fact, the originals FD receipts had been produced to the Defendant, but they had failed to honour the same. Hence, this action.

As regards, the issue of the Plaintiff’s Solicitor having deposed the relevant affidavits, it is asserted by the Plaintiff that this is a non-issue based on the authority of the following cases: Malayan Banking Bhd v. Charterefield Corp. Sdn. Bhd. [2001] 6 CLJ 407; Kerajaan Malaysia v. PKNS Engineering [2019] 1 LNS 2101; Tokai Corp. v. DKSH Malaysia Sdn. Bhd. [2016] MLJU 621; and Dato’ Amir Kahar bin Tun Haji Mustapja v. Tun Mohd Said bin Keruak & Ors. [1994] 3 MLJ 737.

Order 14, rule 1 of the Rules of Court reads as follows: “1. Application by plaintiff for summary judgment. (O.14, r1)

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 part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.” [19] In UNP PLYWOOD Sdn Bhd v. HSBC Bank Malaysia Bhd [2010] 5 MLJ 323 the Court of Appeal explained the legal principles behind a summary judgment application thus: Page 10 of 14 “[35] Summary judgment procedure is a procedural device available for prompt and expeditious disposition of an action by a plaintiff or a counterclaim by a defendant, without a trial when there is no dispute as to the fact and law. In Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281; [1995] 1 AMR 622, Gopal Sri Ram JCA (as he was then) observed as follows: The effect of O 14 is to shut the defendant from having his day in the witness box. It is a very special jurisdiction and is only to be invoked in cases where there is no bona fide triable issues. On occasion like this it is necessary to recall to mind the words of judges more learned than I upon the subject at hand. [36] As to what are capable of being triable issue, Mohamed Dzaiddin J (as he then was) in Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v Ghazali bin Ibrahim [1985] 2 MLJ 225 observed as follows: The issue here is whether or not there is a triable defence. This simply means that it is for the defendant to show on merits, he has a good defence to the claim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable ground of a bona fide defence.” [20] The Court of Appeal in AZLIN BIN KHALID v. MOHAMAD NAJIB ISHAK and other appeals [2017] 6 MLJ 537 at 544 and 545 had made reference to Supreme Court’s decision in BANK NEGARA MALAYSIA v. MOHD. ISMAIL & Ors [1992] 1 MLJ 400 and states the followings: “The principles relating to an application for summary judgment are well settled. In the case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400; [1992] 1 CLJ Rep 14, the Supreme Court states: Page 11 of 14 In our view, basic application under O 14 made by the plaintiff for summary judgment without trial, the general principles established are that the plaintiff has to satisfy the court that the defendant plainly and obviously has no defence to the plaintiff’s claim or part of the plaintiff’s claim. If the plaintiff’s is able to satisfy the court, then summary judgment should be entered in the plaintiff’s favour. On the other hand, if the defendant can show that there is a serious conflict of material facts as disclosed in the opposing affidavits, or there is otherwise a triable issue worthy of judicial investigation in the trial of the action, or there is an important and difficult point of law requiring further and mature consideration at the trial, summary judgment should be refused.” [emphasis added] [21] In the case of FABRIQUE EBEL SOCIETE ANONYME v. SYKT. PERNIAGAAN TUKANG JAM CITY PORT & Ors. [1989] 1 CLJ Rep. 537, Zakaria Yatim J. opined at page 539 para d: “Mr. Lee Tatt Boon, Counsel for the Plaintiff said that he was asking for summary judgement for injunction in respect of the infringement only and not in respect of passing-off. In the statement of claim, the plaintiff is praying for injunction in respect of both infringement and passing-off. Mr. Lee submitted that he was entitled to ask the Court for summary judgement for injunction only. I agree with Mr. Lee’s submission. Order 14, r. 1 of the Rules of the High Court 1980, enables the plaintiff to proceed under O.14 on one or more of several claims included in the writ, instead of having to proceed on all the claims included in the writ. See The Supreme Court Practice 1985, Vol. 1, p. 132” [emphasis added] Page 12 of 14 The Evaluation and Findings [22] From the statements of information in the Plaintiff’s Affidavits in Support of this Application (found in the Record of Appeal – Encl. 3), read together with the documentary exhibits contained therein and referenced above, it becomes an indubitable deduction of this Court that it stands persuaded of the Plaintiff’s belief that there is, in fact, no defence to that part of the claim in respect to the claimed sum of RM138,000.00. The Defendant’s Affidavit in Reply (found in Encl. 3), all things considered, does not even begin to sway one’s notion away from that conviction, except perhaps for paragraph 10 of the said Affidavit which touched on the interest element of the Plaintiff’s claim (more on this below). It remains on the authority of the case of Voo Foot Yiu v. Overseas Chinese Banking Corp. Ltd. (supra) that the rights of the parties are governed by the special banking contract viz. the FD Account that dates back to 1992; where the Defendant stood as a debtor to the Plaintiff as account-holder/customer [Kian Lup Construction v. Hongkong Bank Malaysia Bhd. (supra)]; and that the production of the FD receipts was sufficient for withdrawal/repayment [Voo Foot Yiu v. Overseas Chinese Banking Corp. Ltd. (supra); Standard Chartered Bank v. Tiong Ngit Ting (supra); and Public Bank Bhd. V. Ng Yoon Lin (supra)]. [23] As regards the claim for interest at 7.90% per annum on the claimed sum ~ it is the considered view of this Court that this part of the claim is not such a clear cut issue. Based upon the fact that the rate of interest stated upon the FD receipts was specified for a period of one month only, though subject to renewal; and to the fact that this Court takes judicial notice that bank interest rates as per the usual and recognised banking Page 13 of 14 practice in this country ~ are subject to fluctuation, up or down, from time to time; must make this aspect of the case certainly a triable issue, as averred to by the Defendant; and nothing further need be said. That this issue of interest may stand independently of the claim for the claimed sum of RM138,000.00 appears to be permissible on the authority of the case of FABRIQUE EBEL SOCIETE ANONYME (supra). [24] As regards the question of the issue of the Plaintiff’s Solicitor having deposed the relevant affidavits, it is the finding of this Court that it concurs with that which was asserted by the Plaintiff in that it this is a non-issue premised upon the authorities cited by learned Counsel as in paragraph [17] above. The Final Orders [25] In the upshot, it is the order of this Court that the Summary Judgement of 24.8.2020 (‘the said Judgement’) be confirmed against the Defendant for that part of the said Judgement with regard to the award of the sum of RM138,000.00, together with the Costs, as awarded thereat. [26] However, the interest element awarded in the said Judgement is hereby struck down; whereat that part of the claim is to be reverted to the original Sessions Court at Johor Bahru for trial. [27] The award in the said Judgement for general and exemplary damages to be taxed by the Registered, is also hereby struck down as it has been abandoned by the Plaintiff in this appeal (see paragraph [8] above). Page 14 of 14 [28] And finally, Costs of this appeal in the sum of RM10,000.00 (subject to allocator) is ordered against the Appellant/Defendant, which is to be paid to the Respondent/Plaintiff within 2 weeks of the date hereof. Dated this 30th day of May, 2021 -Signed- ................................................................... (Fredrick Indran X.A. Nicholas) Judicial Commissioner High Court of Malaya at Johor Bahru COUNSEL For Appellant/Defendant: Ms. Tan Siok Khoon – Messrs. Chee Siah Le Kee & Partners, Advocates & Solicitors, No. 2B, Jln KLJ 4, Taman Kota Laksamana Jaya, 75200 Melaka. (L/WFM/CB/MBB/C000.0225/CKH/2020/fl) For Respondent/Plaintiff: Mr. Simon Tay – Messrs. Tay L.E. & Co., Advocates & Solicitors, No. 50A, Jln Abiad, Taman Tebrau Jaya, 80400 Johor Bahru (TLE/2179/CheongHock(Appeal)/L/19/#hd4/M)