Musarat @ Musarat Bibi Binti Sheikh Abdullah v Emmanuel Benson Bin Abdullah (WA-22NCvC-604-09/2024)

The Defendant in this case applied to strike out the Plaintiff’s claim under order 18 Rule 19 of the Rules of Court 2012 (“the Rules”). Order 18 Rule 19 of the Rules provide as follows:

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that- 26/02/2025 17:09:50 WA-22NCvC-604-09/2024 Kand. 21 S/N gt6my0cmtEG6ls2XN4PmXA

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading. Brief facts

The Plaintiff’s claim against the Defendant her ex-husband was for not paying back friendly loans given by the Plaintiff to the Defendant when they were still married.

The loans given out to the Defendant by the Plaintiff while they were still married, amounted to RM1.7 million and were given on the promise of the Defendant that it will be paid back. S/N gt6my0cmtEG6ls2XN4PmXA

Further facts showed that the loans were given to activate a company by the name of Egraduate Net Sdn Bhd of which the Defendant was a Director and to pay off loans by loan sharks.

The facts as pleaded also showed that the loans were given the period of 2010 to 2016. The Defendant had repaid RM476,000 as at 2024.

The Defendant’s company had also purchased a Mercedes E300 Hybrid car in 2015 of which the Plaintiff had made payment for the installment. On their divorce in 2016 the Plaintiff was left to settle the arrears for the car as well as to pay for the repossession of the car on the default of payment of the installments.

Another loan of RM149,510.50 was given to the Defendant by the Plaintiff around 2012 and 2013 to setup a company called The Society of British Business.

The Plaintiff had given a notice to the Defendant in 2015 to repay all the loans given of which the Defendant made some payment on 2024.

The Plaintiff in her claim also alleged that the Defendant had deceived her in 2016 in setting up a company called Smart Trend Sdn Bhd for his own benefit. The setting up of the company was concealed from her and by using forged documents. S/N gt6my0cmtEG6ls2XN4PmXA The grounds of the Defendant’s application 10. In the Court’s view the sole ground discernable from the Defendant’s application to strike out, although in the submissions other matters are argued, is that the Plaintiff’s claim is out of time and therefore time barred. Order 18 Rule 19 of the Rules 11. Order 18 Rule 19 of the Rules empowers the Court to strike out a claim summarily on any of the grounds stipulated therein.

Further light is thrown by case law of which the case of Bandar Builder Sdn Bhd V United Malayan Banking Corporation [1993] 4 CLJ 7 which is succinct on the application of the provision as follows: The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence S/N gt6my0cmtEG6ls2XN4PmXA (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. Limitation period 13. In this case it is clear the Plaintiff became aware of the breach in 2015, as in her own admission in her Statement of Claim she contends that she had sent a notice to the Defendant to pay up the sum owed. In the Court’s view even taking a later date, the date of the divorce in 2016, it would have been apparent to the Plaintiff that the Defendant would likely breach his promise to repay the loan.

The Claim here was filed only in 2024 i.e. 8 years after the breach and therefore obvious unsustainable as the nature of the Plaintiff’s which is breach of agreement to pay, must be brought within 6 years.

This is clearly stipulated in section 6 of the Limitation Act 1953 which provides that: S/N gt6my0cmtEG6ls2XN4PmXA

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

actions founded on a contract or on tort;

actions to enforce a recognisance;

actions to enforce an award;

actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture. Conclusion 16. In this case the Court rules that the Plaintiff’s claim is time barred and therefore obviously unsustainable.

In the upshot the Defendant’s application to strike out is allowed with cost of RM 7,000. Dated: 25.2.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N gt6my0cmtEG6ls2XN4PmXA PARTIES For the Plaintiff: Nama Peguamcara: Vishnu Varna - MOB P/PLF Tetuan Rathi Nara & Associates No. 17, Jalan Bukit Mewah 62 Taman Bukit Mewah 43000 Kajang, Selangor. For the Defendant: Nama Peguamcara: Siva Ganish A/L Sundrarajoo Tetuan Siva Ganish 1st Floor, Room K Menara Amverton Garden Business Centre No. 3, Jalan Istana 41000 Klang, Selangor.

Bandar Builder Sdn Bhd V United Malayan Banking Corporation [1993] 4 CLJ 7. S/N gt6my0cmtEG6ls2XN4PmXA