Murali A/L Selvakumar v Kamalanatan A/L Krishnasamy (CA-A72NCvC-37-03/2023)

Plaintiff then obtained a judgment in default (hereinafter referred as “JID”) against the defendant by the failure of the defendant to enter appearance within the stipulated time. The defendant vide enclosure 11 then filed an application strike out the judgment in default entered against him pursuant to Order 13 Rule 8 of the Rules of Court 2012. 16/05/2024 23:53:44 CA-A72NCvC-37-03/2023 Kand. 27 Brief Facts [2] The plaintiff is an individual having his registered address at 28, Jalan Bukit Setongkol Jaya 108, 25200 Kuantan, Pahang. [3] The defendant is an individual having his registered address at 2707, Taman Sri Taja, Jalan Jabur Kubur, 24000 Kemaman, Terengganu Darul Iman. [4] By the Sale and Purchase Agreement dated 28th July 2022 entered into between the plaintiff and the defendant, the plaintiff had sold a motor lorry with a registration number of WQD 9596 and a motor trailer with a registration number of T/N 4040 the defendant at a purchase price of RM120,000-00 and had deposited RM50,000-00 as an advanced payment. [5] The plaintiff claimed that the defendant had fallen into default on the payment within the stipulated period, and that being the case, the plaintiff thereafter filed enclosure 1 against the defendant to obtain an order from the court and had obtained a judgment in default. [6] The defendant on the other side, had filed an application to strike out the judgment in default entered against him pursuant to Order 13 Rule 8 of the Rules of Court 2012. The Defendant's Application for Striking Out (Enclosure 11) [7] The defendant applied an application to strike out the judgment in default pursuant to Order 13 Rule 8 the ROC 2012. The provision of Order 13 Rule 8 the ROC 2012 is reproduced hereunder: “8. Setting aside judgment (O. 13 r. 8) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. [8] The defendant's application was supported by an affidavit (vide Enclosure 12) deposed by Kamalanathan A/L Krishnasamy who after verifying the facts of the defendant's application stated that he verily believed that the defendant had defence with merits ('terdapat pembelaan bermerit', Enclosure 12, para. 47). The Defendant’s arguments [9] The defendant averred in the written submission (Enclosure 19) that the judgement that has been entered is as a result of some impropriety which is considered so serious as to render the proceedings a nullity. The defendant further averred that judgment in default cannot be entered for based on the Order 13 Rule 3 ROC 2012 that stated as follows: “ 3. Claim in detinue (O. 13 r. 3) Where a writ is endorsed with a claim against a defendant relating to the detention of movable property only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, at his option enter either-

interlocutory judgment against the defendant for the delivery of the property or their value to be assessed and costs; or

interlocutory judgment for the value of the property to be assessed and costs, and proceed with the action against the other defendants, if any.” The Plaintiff’s arguments [10] On the other side, the plaintiff submitted that the said writ was perfectly served to the defendant by way of AR Registered Card and the judgment was regularly obtained. To rebut this, plaintiff further asserted the judgment was regular has referred to Order 13 Rule 1 of the ROC 2012 that stated as follows: “1. Claim for liquidated demand (O. 13 r. 1)

Where a writ is endorsed with a claim against a defendant for a liquidated demand only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any.

A claim shall not be prevented from being treated for the purposes of this rule as a claim for a liquidated demand by reason only that part of the claim is for interest accruing after the date of the writ at an unspecified rate, but any such interest shall be computed from the date of the writ to the date of entering judgment at the rate as may be specified under Order 42, rule 12.” [11] Plaintiff also referred to the Federal Court case of GOH TENG WHOO & ANOR V AMPLE OBJECTIVES SDN BHD [2021] 4 CLJ 348 that states as follows: “[3] The appellants’ submission is that the answer to the leave question should be in the negative, i.e. the court cannot seal a JID in the absence of proof of service and that this proof can only come by:

(i)the affidavit of service exhibiting the AR card;

(ii)the AR card showing an endorsement acknowledging receipt by the defendant himself;

(iii)or, if the endorsement is not made by the defendant himself, the affidavit of service showing that the indorser was someone authorized by the defendant to accept service of the writ on his behalf. [12] Plaintiff submitted that based on the authorities laid down above, the said writ was filed on 7th March 2023 and it was delivered to the defendant as their authorised person was the one who acknowledged the service by signing it at the back of the AR Registered Card. Once the said writ was delivered to him, he must have known about the claim that was about to be taken against him but there was no defence entered. [13] ] Thus, plaintiff proceeded to file the Certificate of Non-Appearance (hereinafter referred as “CNA”) on 10th April 2023 and the Judgment in Default (hereinafter referred as “JID”) on 31st May 2023 after 14 days of the non-appearance of the defendant to file the defence. Hence, the plaintiff adamantly submitted that the JID was regular & should have not be set aside. [14] Besides that, the plaintiff also averred that the defendant had no defence with merits because the plaintiff strongly believed that the defendant ought to be adhered to the contract that both of them had signed. The plaintiff referred to Section 38 (1) Contract Act 1950 that states as follows: “The parties to a contract must either perform, or offer to perform, their respective promises, unless the performance is dispensed with or excused under this Act, or of any other law.” [15] The plaintiff further referred to the case of TETUAN A.G ROSELI & PAUL V. SS PRECAST SDN BHD & ORS 2021] 1 LNS 12955 that states as follows: “[18] It is clear that the payment of the retainer is conditional upon the works carried out by the Plaintiff as agreed in paragraph 1. It is an undisputed fact in this case that the Plaintiff had by letter dated 19/6/2020 discharged themselves from acting for the Defendant and has asked the Defendants to find new lawyers. [19] From the actions of the Plaintiff it is clear that the Plaintiff had only partly performed their duties as was agreed upon. Under the Contracts Act 1950 under section 38 it is incumbent upon the parties fulfil all their obligations under the agreement. Section 38(1) provides as follows: 1) The parties to a contract must either perform, or offer to perform, their respective promises, unless the performance is dispensed with or excused under this Act, or of any other law.” Reasons for the decision i) Whether the JID was regular; [16] As stated under Order 13 Rule 8 of the ROC 2012, the Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. I refer to Order 42 Rule 13 of the ROC 2012 that is stated as follows: “13. Setting aside or varying judgment and orders (O. 42 r. 13) Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him.” [17] In this case, the plaintiff has filed the CNA on 10th April 2023 and the JID on 31st May 2023 after the non-appearance of the defendant to file the defence. As plaintiff submitted that based on the authorities laid down above, the said writ was filed on 7th March 2023 and it was delivered to the defendant as their authorised person was the one who acknowledged the service by signing it at the back of the AR Registered Card. Once the said writ was delivered to him, he must have known about the claim that was about to be taken against him but there was no defence entered. Hence, I believe that the service was perfected and the JID entered was regular. ii) Whether the Defendant had successfully stating facts showing that he had defence on merits.; [18] In determining whether the defendant had successfully stating facts that he had defence on merits, this court is of the view to go thoroughly on the facts brought forward by the defendant. The defendant argued that although the court found that the service was perfectly served, the judgment still can be set aside when merits are disclosed and when the court is satisfied that there were merits in the defence. Thus, the defendant submitted his defence by stating that the motor lorry was not roadworthy, not in the condition of merchantable quality and also not fit for the purpose of sale. [19] It is germane for the court to highlight the fact that although the defendant had advanced the contention as above as his defence, it was not in line with his action for not informing the plaintiff about the current situation that was happening at that particular time. If the defendant if was committed not to breach the contract as in the agreement, he should have taken a proactive action by informing the plaintiff about what action ought to be taken to avoid this civil suit to be filed. [20] I agree with the contention of the plaintiff that the both parties were bound by Sale and Purchase Agreement dated 28th July 2022 and never once parties disputed about this. The plaintiff further referred to the case of TETUAN A.G ROSELI & PAUL V. SS PRECAST SDN BHD & ORS 2021] 1 LNS 12955 that states as follows: “[18] It is clear that the payment of the retainer is conditional upon the works carried out by the Plaintiff as agreed in paragraph 1. It is an undisputed fact in this case that the Plaintiff had by letter dated 19/6/2020 discharged themselves from acting for the Defendant and has asked the Defendants to find new lawyers. [19] From the actions of the Plaintiff it is clear that the Plaintiff had only partly performed their duties as was agreed upon. Under the Contracts Act 1950 under section 38 it is incumbent upon the parties fulfil all their obligations under the agreement. Section 38(1) provides as follows: 1) The parties to a contract must either perform, or offer to perform, their respective promises, unless the performance is dispensed with or excused under this Act, or of any other law.” [21] Reference should be made to the Sale and Purchase Agreement dated 28th July 2022 that provided as follows: [22] As per stated in the agreement above, it is clear that the defendant was bound to the terms and agreement as stated in the Sale and Purchase Agreement dated 28th July 2022. In this situation, the defendant had breached the contract by failing to fulfil the payment as stated in the agreement for the first month in August 2022. Thus, I conclude that defendant is therefore responsible for it and there were no merits in defence. Conclusion [23] For the reasons adumbrated above, this court dismissed enclosure 11 with cost RM500 to be paid to the plaintiff. DATED: 16TH MAY 2024 (NOR IZZATI BINTI ZAKARIA) Magistrate Magistrates' Court Kuantan, Pahang Counsel: For the plaintiff – Encik Aiman As' Ad Bin Mohd Ghani from Messrs. Irfan Aiman For the defendant – Encik Mohammed Hissham Bin Ramdzan from Messrs. Abdul Malik Zamri & Co. Legislation(s) referred: Order 13 Rule 8 the ROC 2012 Case(s) referred: i) GOH TENG WHOO & ANOR V AMPLE OBJECTIVES SDN BHD [2021] 4 CLJ 348; dan ii) TETUAN A.G ROSELI & PAUL V. SS PRECAST SDN BHD & ORS 2021] 1 LNS 12955