Murugan A/L Munisamy v Public Bank Berhad (CA-A53-2-07/2023)

The plaintiff says that he is the registered owner of a property held under GM 26723, Lot 72358, Mukim Kuala Kuantan, Kuantan, Pahang and with an address at No. 94, Lorong Seri Setali 112, Taman Semambu Jaya, 25300 Kuantan, Pahang (“the Property”).

The plaintiff claims that the defendant had wrongfully entered into the Property when his consent was not obtained prior to the entry that took place on 8.5.2023 (he was at work at the material time) and the defendant failed to take all reasonable steps to ascertain the status of the said Property before the said entry.

The alleged wrongful entry appears in paragraph(s) 4 and 7 of the statement of claim which state-On 08.05.2023, the Defendant, via its agent and/or solicitor (“the Defendant’s representative”) with the assistance of Court’s bailiff and the police personnel wrongfully entered the said property without the consent of the Plaintiff by breaking open the front gate’s padlock and front door grill (“the wrongful act”). (Paragraph 4) The Plaintiff avers that the Defendant’s representative with the assistance of Court’s bailiff and the police personnel committed the wrongful act under the assumption that the said property was the residence and/or belonged to one RAGU NATHAN A/L KUNASEGARAM (“the Defendant’s debtor”) to conduct execution proceedings vide Kuantan Magistrate’s Court Application for Execution No. CA-76WS-25-02/2023 (“the execution proceedings”). (Paragraph 7)

In other words, the plaintiff’s claim grounded on trespass by the defendant and/or defendant’s representative on 8.5.2023.

The plaintiff, then, pleads that, as a result of the above, he has suffered special and general damages (see paragraph(s) 10, 13 and 15 of the Statement of Claim).

He claims for pain and suffering as per the plaintiff’s medical report by Dr Tan Lee Khing as being diagnosed suffering from Acute Stress Disorder, cost for the aforesaid medical report at RM733.00, cost to replace with new padlock (2 sets) at RM120.00, aggravated damages, exemplary/punitive damages, interest and costs.

The defendant denied the plaintiff’s claim whereby it never wrongfully entered the said Property on 8.5.2023.

According to the defendant -

On 3.6.2022, judgment in default of appearance (“JID”) was obtained against one Ragu Nathan A/L Kunasegaram (“Ragu Nathan”) in respect of a claim for non-payment of instalments in accordance with a Hire Purchase Agreement dated 12.3.2020 (“HPA”). It was for the amount of RM73,082.10.

The address stated in the said HPA was also the same address in Ragu Nathan’s NRIC i.e. No. 94 Lorong Seri Setali 112, Taman Semambu Jaya, 25300 Kuantan, Pahang (“Ragu Nathan’s address”).

Premised on the JID, the defendant applied and subsequently obtained a writ of seizure and sale (“WSS Order”) on 27.2.2023 of all the property that shall be identified as belonging to Ragu Nathan of the above said Ragu Nathan’s address (“Execution Address”) by seizure and if it be necessary by sale.

The Execution Address was based on the last known address provided by Ragu Nathan under the HPA.

The defendant had no knowledge that the Property with the same address was owned by the plaintiff.

(f)

Subsequently, via an order dated 6.4.2023, the defendant gained Order for Force Entry into the Property (“Force Entry Order”).

On 8.5.2023, second attempt of WSS Order was executed by the Court bailiff pursuant to the Force Entry Order in the presence of the defendant’s representative and police personnel from IPD Kuantan by breaking open the front gate’s padlock and front door grill (“Second Attempt”).

Again, it was unsuccessful. The execution was obstructed by the plaintiff. The Court’s bailiff and the defendant’s representative were unable to enter the Property and they could not seize any goods therein in accordance with the WSS Order.

Then, the defendant made a third attempt at the same Execution Address on 26.7.2023. It was also unsuccessful when the said process was stopped by the plaintiff (“Third Attempt”).

It is the position of the defendant that its action at the Execution Address together with the Court bailiff and the police personnel on 8.5.2023 was in accordance with the power given under the WSS Order and the Force Entry Order which were still valid and had not been set aside.

The plaintiff’s action to obstruct the said execution was in total disrespect of the Court’s Orders which entitled the defendant to commence with committal proceedings.

In reply to the above said defence, the plaintiff states, inter alia, that-

The WSS Order and Force Entry Order were obtained by misleading the Court to believe that the Property belonged to Ragu Nathan.

Although Ragu Nathan is the brother in law of the plaintiff, he never invited the former to stay with him.

Despite having knowledge about the status of the said Property, the defendant had proceeded with another execution proceeding on 26.7.2023.

The case proceeded with full trial. Three (3) witnesses were called by the plaintiff and four (4) witnesses were called by the defendant.

Deducing from what the parties submitted, my preliminary observation is what gives rise to the cause of action in this matter?

Whether the cause of action was the entry to the Property that took place on 8.5.2023 only which is referred to herein as the Second Attempt or it also involves the one that occurred on 26.7.2023, the Third Attempt?

Reverting to the Statement of Claim in particular paragraphs 4 and 7, it is understood alone that the alleged loss and damage suffered by the plaintiff were the direct consequence of the entry to the said Property on 8.5.2023, Second Attempt. There is nothing mentioned about what had took place on 26.7.2023, Third Attempt.

The Third Attempt was firstly mentioned only by the defendant in the defence when it tries to show to this Court the conduct of the plaintiff of giving two (2) directly contradictory truth about Ragu Nathan. Tambahan, ketika Defendan menjalankan pelaksanaan di bawah Perintah Mahkamah bertarikh 06.04.2023 yang sah bersama-sama Bailif dan bantuan Polis Di Raja Malaysia pada tarikh 08/05/2023 Plaintif telah memaklumkan bahawa beliau adalah adik ipar kepada Penghutang Penghakiman Defendan dan kemudiannya menghalang Defendan daripada menjalankan pelaksanaan. Namun, ketika Defendan menjalankan pelaksanaan di bawah Perintah Mahkamah yang sama bersama-sama Bailif dan bantuan Polis Di Raja Malaysia pada tarikh 26/07/2023 Plaintif telah memaklumkan bahawa beliau tidak mempunyai apa-apa hubungan kekeluargaan dengan Penghutang Penghakiman Defendan dan kemudiannya menghalang Defendan sekali lagi. Pernyataan Plaintif pada kedua-dua tarikh ini adalah jelas bercanggah. Tambahan pula, Defendan menyatakan bahawa Plaintif mempunyai hubungan kekeluargaan dengan Penghutang Penghakiman Defendan dan Defendan telah memperolehi rekod berkaitan perkara ini. Maka, pernyataan Plaintif adalah bercanggah dan Defendan akan membuktikan perkara ini semasa perbicaraan kes ini. (Paragraph 16)

Response to the above said assertion can be seen in paragraphs 11 and 13 of the plaintiff’s reply in which it is finally pleaded in paragraph 14 that- …Defendan melakukan perbuatan memasuki hartanah tersebut sebanyak dua kali dan ini menjadikan keadaan Plaintif, sebagaimana yang dinyatakan dalam Perenggan 10 Pernyataan Tuntutan bertambah teruk.

Meaning, the loss and damage suffered by the plaintiff as a result of the Second Attempt that took place on 8.5.2023 was made worst by the Third Attempt despite of having known at the material time that Ragu Nathan was not residing at the said Property.

Premised on the above, it is my considered view that the cause of action in the present action is the Second Attempt that took place on 8.5.2023.

Therefore, the only issue for this Court’s determination is: Whether the entry to the said Property on 8.5.2023 by breaking open the front gate’s padlock and front grill, without the plaintiff’s consent and without taking reasonable steps to ascertain the status of the Property before the said entry, was unlawful.

To determine the above said issue, the plaintiff submitted that the Court has to direct its finding to the time of execution of WSS Order whether Ragu Nathan was still residing at the said Property to enable the defendant to proceed further.

Reliance was placed on, inter alia, the following cases-

Morris v Salberg [1889] 22 QBD 614

Clissold v Cratchley [1908-10] AER 739

Tan Teng (MW) v SSTKR Karuppan Chettiar [1938] 1 MLRH 32

Marian Rebello v K Periathamby, S Chellappa [1931] 1 MLRA 377

Dr Mathew Sebastian v Metroplex Leasing & Credit Corp

The defendant, on the other hand, took a different view. According to the defendant, the focus should be on whether the defendant’s entry on 8.5.2023 was in accordance with the law and power given under the WSS Order and the Force Entry Order.

Reliance was placed on, inter alia, the following cases-

Nazlin Shah Randolph Mohd Fauzi v SA Puncak

Sim Boh Tan And Another v Tan Swee Biow [1941] CLJU 85

Tenaga Nasional Bhd v Bukit Lenang Development Sdn

I agree with the defendant.

In this case the WSS Order was issued and authorized by the Magistrate Court upon a request for the same was filed by the defendant. It was due to the failure of Ragu Nathan in complying with the JID recorded against him.

The venue that was duly authorized by the Court for the sake of the said WSS Order was undoubtedly at No. 94 Lorong Seri Setali 112, Taman Semambu Jaya, 25300 Kuantan, Pahang, the execution address, which later appeared to be also the address of the plaintiff’s property.

And on the execution date, the defendant came to know that Ragu Nathan is the brother in law of the plaintiff. The existence of the said relationship was not disputed. Except, they were not in a good term.

The execution address was not the indorsement made by the defendant and/or the defendant’s solicitors themselves. Again, it was the address authorized by the Court under the WSS Order.

The defendant was, hence, the holder of a valid writ of seizure and sale which gave them a right to have the Court’s Bailiff seize and sell the assets identified as belonging to Ragu Nathan.

Unfortunately, the evidence showed that the WSS Order had been returned unsatisfied on the First Attempt because the property was locked.

The Second Attempt was also unsuccessful because the process was stopped by the plaintiff. The Court Bailiff could not even enter into the property.

About the Second Attempt, the evidence showed-

There was no one in the property and it was locked. It was undisputed fact.

Hence, the force entry pursuant to the Force Entry Order by breaking open the front gate’s padlock and front door grill with the assistance of a locksmith.

Before the Court Bailiff and the defendant’s representative could be able to enter the property, the plaintiff came with his motorcycle stopped the execution process and said that Ragu Nathan was no longer living at the address. He was angry and shouting that made the rest who came for the execution left.

The Court Bailiff then made this report (see Exhibit D28) Pelaksanaan Tidak Dapat Dijalankan Kerana Alamat Tersebut Adalah Bukan Alamat Defendan Dan Tuan Rumah Enggan Memberi Kerjasama.

At the material time, the plaintiff had not provided any document showing that he was the owner of the Property. Neither he informed the current whereabout of his brother in law, Ragu Nathan. To reiterated, the plaintiff’s relationship with Ragu Nathan was not good.

Premised on the above, there can be no doubt that the Court Bailiff and the defendant’s representative could not even enter the Property neither they could proceed to make an inventory of assets that might belong to Ragu Nathan.

It is trite that a bailiff, when executing a judgment of the Court, is acting on behalf of the Court. Thus, he is doing his duty as an officer of the Court (see Dr Mathew Sebastian v Metroplex Leasing And Credit Corporation Sdn Bhd [1996] 2 CLJ 238).

Hence, neither the Court Bailiff nor the defendant’s representative through the Court Bailiff had acted in excess of the powers conferred under the WSS Order and the Force Entry Order that could made them liable for committing trespass on the plaintiff’s property on the Second Attempt.

Further, the WSS Order herein is not about seizing and selling the immovable property i.e. the house belongs to the plaintiff. It is meant for the Court Bailiff to firstly identify the movable assets that belong to Ragu Nathan. So, if it is established to the satisfaction of the Court Bailiff that there is none then the execution will return unsatisfied.

Another related issue was: why is the defendant still continuing the execution process when their own feasibility investigation report dated 8.11.2022 (Exhibit D25) showed that Ragu Nathan was not staying at the Property?

Below is the excerpt of the said report-

This issue relates to another basis of the plaintiff’s claim i.e. failure on the part of the defendant to ascertain the status of the Property before the entry made on the Second Attempt.

The evidence showed that-

The relationship between the defendant and Ragu Nathan was regulated by a Hire Purchase Agreement dated 12.3.2020 in respect of one (1) unit Honda Accord no. KDA3228.

The address given by Ragu Nathan for the purpose of the hire purchase transaction was the execution address. A copy of his NRIC also bears the same address.

The defendant filed an action against Ragu Nathan at Kuantan Magistrate Court for the outstanding under the Hire Purchase Agreement in April 2022.

The above said feasibility investigation was carried out on 6.11.2022.

A Judgement in Default was entered on 3.6.2022 (see Exhibit D34).

Based on the above said JID, the defendant proceeded with WSS Order and then execution of the said Order at the execution address.

Even as at 8.1.2024 the NRIC search still shows the same address of Ragu Nathan i.e. at the execution address.

And this execution address was the address authorized by the Court for the purpose of execution.

Hence, the defendant and/or the Court Bailiff, having the WSS Order and Force Entry Order which were still valid and subsisting at the material time, were entitled to execute the same.

It was only 10.5.2023, the defendant and its solicitors were notified by the plaintiff’s solicitors that the Property was owned by the plaintiff.

Despite of the said notification and legal warning, the Third Attempt was carried out on 26.7.2023.

The Third Attempt, as said, took place on 26.7.2023. And it was also unsuccessful based on the following reason-Pelaksanaan WSS tidak dapat dijalankan kerana pemilik rumah memaklumkan bahawa defendan tidak menetap di alamat tersebut dan tidak mengenali defendan. Beliau telah melantik Peguam Tetuan R.S Pani dan dalam proses perbincangan dengan peguam plaintif. (Court Bailiff Report at Exhibit D31)

I will make no further comment on the Third Attempt because I stand by my finding at paragraph(s) 11-17 above.

Premised on the above, it is my considered view that the plaintiff failed to prove his claim against the defendant on the balance of probabilities.

For completeness, I will deal with the issue on quantum on 100% liability.

It is trite that all special damages must be specifically pleaded and proved and there is also a duty on the plaintiff to mitigate his loss.

As far as proof is concerned, the best available evidence must be produced to substantiate the claim.

Where the damage suffered by the plaintiff is obvious, essential and necessary, the Courts have awarded a reasonable sum without insistence of strict proof depending of course on the circumstances of each case. However, the Court should as a general rule, wherever possible, insist on the strict compliance with rules of evidence.

This is my decision with regards the special damages claimed by the plaintiff.

According to paragraph 13 of the Statement of Claim, the plaintiff’s claim under this head are-

Kos untuk laporan perubatan Plaintif – RM733.00

Kos untuk menggantikan set manga baru (2 set) – RM120.00

And this Court is satisfied that the plaintiff had proven, on the balance of probabilities, the above said items via testimony of SP1, receipt at Exhibit P2, testimony of SP2 and receipts at Exhibit(s) P4 and P5.

Based on the written submissions, the plaintiff claims the following awards at-

RM50,000.00 for acute stress disorder based on the testimony of SP2 and her report at Exhibit P3.

RM100,000.00 for aggravated/exemplary damages because despite the warning and notification given, the defendant still proceeded with the Third Attempt.

The defendant’s response to above said claim can be seen from paragraph(s) 4.2 of their written submissions.

This is my decision on 100% liability.

I agree with the defendant on these-

The condition of the first plaintiff in Yap Siew Ling & Anor v Lim Chwee Tin [2024] 2 SMC 454 was more serious and the learned Sessions Court Judge had awarded RM15,000.00 for depression where she was in the depressed mood, crying spells and another RM15,000.00 for post traumatic stress disorder with depressed mood.

On 100% basis, I am of the view that an award at RM5,000.00 is fair and reasonable.

The award that the plaintiff is looking at is RM100,000.00 because the defendant still proceeded with the Third Attempt despite the warning and notification given about the ownership of the Property.

If I was wrong on the issue of liability, it is my considered view that an amount of RM5,000.00 is fair and reasonable.

These are my reasons-

The claimants in the case authorities referred by the plaintiffs were in more serious condition.

In this case, the plaintiff had an option and opportunity to co-operate with the defendant’s representative and/or the Court Bailiff by, inter alia, giving them any information about Ragu Nathan because he is his brother in law.

Premised on the above, I hereby dismiss the plaintiff’s claim with costs pursuant to the scales under the Rules of Court, 2012.

Sarengapani S/O K. Rajoo (Khadijah Binti Hakimuddin with him) for the Plaintiff (Messrs RS Pani & Associates)

Ahmad Fadzli Bin Abdul Salam (Marliana Binti Yahya with him) for the Defendants (Messrs Tawfeek Badjenid & Partners)