Mzp Construction & Trading v Mageala A/P Tharmalingam (BL-B52NCC-38-06/2023)

However, the defendant failed to pay outstanding sums which resulted in the present suit being filed to this Court. [14] Before this Court, the defendant denies the claim. [15] In brief, the defendant contends that she was not involved in the transaction and Mr. Kathir had no authority to act on behalf of the defendant. [16] In the course of proceeding before this Court, two (2) witnesses testified. For the plaintiff, Mr. Manogaran a/l Palani [SP1]; and for the defendant, the defendant herself [SD1]. ISSUES TO BE TRIED [17] Issues to be tried that has been filed is at Enclosure 11 as follows: ISSUE 1 Whether Mr. Kathir is an agent and/or representative with actual or apparent authority [18] may be expressed or implied. See section 135, 139, 140 and 141 of the Contracts Act 1950. [19] The agency law is further developed as actual and ostensible authority. [20] In this regard, see the Apex Court in Chew Hock San & Ors v. Connaught Housing Development Sdn Bhd & Another [1984] 1 MLRA 555 as follows:

Now, the difference between an actual and an apparent or ostensible authority and the principles applicable thereto are adequately explained by Diplock LJ in Freeman & Lockyer v. Buckhurst Part Properties (Mangal) Ltd [1964] 2 QB 480 from p 502 to p 504 as follows: on the other. Actual authority and apparent authority are quite independent of one another. Generally they co-exist and coincide, but either may exist without the other and their respective scopes may be different. As I shall endeavour to show, it is upon the apparent authority of the agent that the contractor normally relies in the ordinary course of business when entering into contracts. created by a consensual agreement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties. To this agreement the contractor is a stranger; he may be totally ignorant of the existence of any authority on the part of the agent. Nevertheless, if the agent does enter into a contract liabilities between the principal and the contractor. r hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the so as to render the principal liable to perform any obligations imposed upon him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract. In ordinary business dealings the contractor at the time of entering into the contract can in the nature of things hardly ever rely on the 'actual' authority of the agent. His information as to the authority must be derived either from the principal or from the agent or from both, for they alone know what the agent s actual authority is. All that the contractor can know is what they tell him, which may or may not be true. In the ultimate analysis he relies either upon the representation of the principal, that is, apparent authority, or upon the representation of the agent, that is warranty of auth [21] Based on the evidence, the Court undoubtedly finds that Mr. Kathir was an agent of the defendant, possessing clearly actual and apparent authority to engage in business dealings with the plaintiff. [22] The Court is satisfied that Mr. Kathir was, at all material times, engaged in negotiations and dealings with the plaintiff on behalf of the defendant for the rental and supply of the machinery. [23] It is the pleaded case for the defendant that Mr. Kathir was the one who did the negotiation with the plaintiff. [24] In this regard, the Court refers to paragraph 5 of the defend statement of defence as follows: menegaskan bahawa setelah beberapa rundingan diantara Plaintif dan Encik Kathir. Plaintif akhirnya bersetuju untuk menyewa dan demikian, Defendan bertindak atas kepercayaan janji-janji dan jaminan Plaintif dan bersetuju untuk menyewa jentera pada harga [25] It is a cardinal rule in civil litigation that parties are bound by their pleadings. Hence, the above pleaded fact binds the parties (see: State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). [26] Further, the Court finds support also from the evidence. See the examination in chief of SD1 as follows: Describe your position in the business? I am not involved in the day to day running of the business. I leave the management of the company to my husband (Mr. Kathir) [27] Based on the above, clearly there is admission by the defendant. No cogent reason for this Court not to accept it. See HC in Esso Malaysia Bhd v. Hills Agency (M) Sdn Bhd [1994] 1 MLJ 740 as follows: construction of a document will be assumed to be correct in view [28] Further, the Court is satisfied that at all material times, the position of Mr. Kathir is also a material and relevant fact. Mr. Kathir is the general manager of AR Mega Winner Trading which speaks for itself.

To find further support, his conduct of signing as general manager, the official letter issued by AR Mega Winner Trading dated 24th January 2022 to the plaintiff is also material and relevant. [30] Having said that, to the humble view of this Court, the doctrine of estoppel applies to the defendant. See the Court of Appeal in Bumiputra-Commerce Bank Berhad v. Augusto Pompeo Romei & Anor [2013] 7 MLRA 693 as follows: General & Ors [1989], it was held that an instrument bearing a genuine seal and genuine signatures but executed without the authority of the company may be described as a forgery in the loose sense. A forgery in the strict sense, that is, an instrument bearing a false seal or signature, is binding on a company only if the company is estopped from denying both the falsity of the seal or signatures and the authority of the persons affixing the false seal or writing the false signature. But an instrument bearing a genuine seal and genuine signature, though it may be described as a forgery, is binding on the company if the company is estopped from denying the authority of the persons affixing the genuine seal and writing the genuine signature. And at p 186, Mason CJ delivering the judgment of the High Court of Australia said: Such an instrument, being regular in form, is binding on the company if it business or otherwise for relying on it is not put on inquiry as to the authority of the persons who executed it to do so. If it transpires that the instrument was executed without the authority of the company, though it was apparently regular in form executed by officers or agents acting within the scope of their ordinary authority to execute such business or otherwise for its benefit, the loss will fall on the company unless the party dealing with the company was put on inquiry. But if the party dealing with the company was put on inquiry and failed to make an inquiry or, on inquiry, was not reasonably authority, the company will not be estopped from denying that it is bound by the ins [31] See also Lim Wen Chih & Anor v. Mycom Bhd [2014] 3 MLJ 691 as follows: the appellants were not novice businessmen and would not have signed the documents without careful consideration. To put it directly, acumen as their assets suggest, they would be so unlikely as to be unbelievable to have signed any document in a foreign country without [32] In short, the answer to the issue is positive. ISSUE 2 Whether the plaintiff is entitled to charge additional invoices amounting to RM593,431-54 against the defendant. [33] The Court is satisfied that at all material times, the defendant made a clear and unequivocal admission that as of January 2022, an outstanding amount of RM593,430-60 was owed to the plaintiff. [34] In this respect, the Court refers to the letter dated 24th January 2022 issued by AR Mega Winner Trading to the plaintiff. The letter clearly states that defendant acknowledged and admitted that the amount due to the plaintiff as of January 2022 is RM593,430-60, excluding the interest that the defendant claimed had been unilaterally imposed by the plaintiff. The Court reproduces the letter as follows: Dear Sirs, Re: Payment Claim For Rental of Machinery We refer to the above matter and to your letter of 10/1/2022.

We wish to place on record that the amount demanded vide the said letter is incorrect as the amount due to your good self as per our record is RM593,430.60 which excludes the interest that has been unilaterally imposed by your goodself. [35] The weigh attached to the clear admission is discussed by the Court of Appeal in Hasrat Usaha Sdn Bhd v. Pati Sdn Bhd [2010] 3 MLRA 499 as follows: distinguishable. As can be seen from the facts of the instant case the letter presumably the contents of that letter must have come from the defendant's own accounts department. Although the plaintiff disputed the correctness of the amount stated in the said letter, claiming that a bigger amount was due and owing from the defendant we are of the view that, there is a clear and unequivocal admission by the defendant that there was a balance due to the plaintiff to the tune of RM1,310,806.02. Up to that amount, the defendant is under obligation to pay to the plaintiff. It does not make any difference that the defendant was merely enquiring and seeking confirmation of the correctness of the figure. The facts still remained that the defendant's own accounting records show that there was an outstanding sum of RM1,310,806.02 payable to the plaintiff. Accordingly the appeal of the [36] The Court is satisfied that the letter was contemporaneous and made in its ordinary course of business. See High Court Judge Suriyadi Halim Omar (as he was then) in Caltex Oil Malaysia Ltd v. Classic Best Sdn Bhd & Ors [2006] 7 MLJ 131 as follows: [10] In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing. This principle had been laid down in the case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 where Salleh Abas FJ (as he then was), delivering the judgment of the the respondents, as it is clear that under s 92 of the Evidence Act 1950, oral evidence to contradict, vary, add to or subtract from, the terms of any contract, grant or disposition of property which had been reduced in writing is not admissible. The sales invoice and the delivery note being the contract reduced in writing between the appellants and the respondents s 92 YK Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian [1989] 3 MLJ 490 where the High relevant monthly statement of accounts to which he had no objections, [37] Following the admission, the principle of approbate and reprobate applies. Hence, the defendant cannot now deny the p . See Express Newspaper plc v. News (UK) Ltd and others [1990] 3 All ER 376, at pp 383-384 as follows: to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be [38] In short and based on the above, the answer to the issue is positive. ISSUE 3 Whether there was any express and/or implied agreement that interest could be charged on the outstanding amount and whether the plaintiff is entitled to charge a rate of 1% per month on the outstanding amount of RM 593,431-54 to the defendant. [39] Payment of interest by reason of the c the goods delivered are fair and legally recognised. See the High Court in Pos Logistics Bhd v. Kumpulan Perubatan Smarthealth Sdn Bhd [2022] 2 MLRH 146 as follows: - if there is a course of business dealings between Suppliers and Customers wherein the Customers for the goods or supplies in question, the Suppliers are entitled to impose late payment interest. Such a legal position is fair and just because if the Customer has delayed or refused to pay for the goods or services which have already been supplied, the Supplier has nd should be compensated in the form of interest Supplier has been deprived of the benefit and use of money (which should have been paid by the Customer to the Supplier within the agreed time period. [21] I am of the view that the plaintiff is entitled to charge Late Fee Interest because there exists a course of business dealing between the plaintiff and defendant wherein the defendant has agreed to pay Late Fee Interest (Course of Business Dealing). The Course of Business Dealing is proven by the following evidence and reasons: 1) the Invoices had expressly stated that, among others, that the Invoiced Sums should be paid by the defendant to the plaintiff within 14 days from the date of the Invoices and if the Invoiced Sums were not paid within the stipulated time period, Late Fee Interest would be imposed;

the following conduct of the defendant supports the Course of Business Dealing:

after the plaintiff had first imposed Late Fee Interest in the Invoice, the defendant should have objected to the Late Fee Interest and the Services continued to seek the Services without any objection to the Late Fee Interest; and protest against the Late Fee Interest. [40] The Court also finds that there is a written term of agreement between the parties that interest could be charged on the outstanding amount. Below are the reasons for the finding. [41] Firstly, the statements of account issued by the plaintiff to the defendant from year 2018 to 2023. These statements of account have clearly stated that interest will be charged at 1% per month on all overdue account. [42] Some of these statements of account were signed by the defendant and/or her representative (Mr. Kathir) and were stamped with the d chop. [43] It shows the d interest clause. [44] Based on the above, the Court finds that the defendant had full knowledge of this interest clause in the statements of account since year 2018. [45] The Court also finds that the defendant had never objected to the interest clause. The effect of the failure is critical to the defendant. See the Court of Appeal in Tekun Nasional v. Plenitude Drive (M) Sdn Bhd and other appeals [2018] 4 MLJ 567 as follows: [86] We further agree with the learned judge that although the defendant may have initially expected the standing instruction system to be part of the zero investment concept, based on the conduct of the defendant, that expectation had been demolished. It was indeed quotation on the standing instruction system. Not only did the defendant fail to object to the quotation for RM612,000, the invoice that followed was duly acknowledged by the defendant. The conduct of DW2 who testified that the quotation and invoice received and acknowledged was merely to be kept and referred by him was in defiance of logic, common sense and commercial sense. [87] Indeed, if there was no such understanding that the plaintiff be paid separately for the standing instruction system, one would have expected the defendant to immediately protest and/or raise an enquiry with the plaintiff on the quotation (see Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331; Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155; KGN Jaya Sdn Bhd v Pan Reliance Sdn Bhd [1996] 1 MLJ 233; Masjaya Trading Sdn Bhd v Kedah Cement Sdn Bhd [2004] 4 CLJ 18 and Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Ors v Arab-Malaysian Prima Realty Sdn Bhd & Ors [2001] 1 MLJ 324; [2001] [46] To further aggravate, the defendant continued to seek services from the plaintiff. This is a material business conduct which further [47] Secondly, the evidence of SP1 during the cross examination. SP1 testified that interest is at the rate of 1% per month. So that 10% per month is not there. No, 1% per month, per year I think 12%. Outstanding sum. 1% every month ya. Ok. But where did you get this figure from? From the statement. In your invoice, 1% Per month. Yes, per month. You agree with that statement? I put in the statement, but not in the invoice. you the penalty 1% per month. So, I put it to you that the interest was never payable or never agree between the parties? His payment is too long already. Actually, my term is 30 day, now they hold me for I think 4, 5 years already. Listen to my question, I put it to you that this interest of 1% was never agreed between the parties, yes or no? No. The amount of interest or the rate of the interest was not agreed between the parties. I know they agree. You say no. Because by any document to show included this Interest? [48] Thirdly, the defendant failed to dispute the interest. This failure is also clearly stated by the plaintiff in his/her letter dated 15th March 2022 issued to the defendant. See the letter as follows:

As you can see, you have made payment totalling RM1,413,262- [49] On the failure to dispute, see also Tekun Nasional [supra]. [50] ISSUE 4 Whether the sum of RM1,448,918-98 settled by the defendant constitutes full and final settlement? [51] The Court finds that the sum of RM1,448,918-98 settled by the defendant does not constitute a full and final settlement of the outstanding amount. [52] In this regard, the defendant asserted that the defendant had paid RM1,448,918-98 and this is the final settlement which was agreed to by the plaintiff. [53] The law is trite that the burden lies on the defendant to prove the allegation. See section 103 of the Evidence Act 1950 as follows:

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the p [54] After evaluating the evidence, the Court finds that defendant has failed to prove that the plaintiff agreed to the final settlement. [55] The answer to the issue is negative. ISSUE 5 Whether the defendant owes a sum of RM626,747-91 calculated as at 1st March 2023 to the plaintiff. [56] The Court is satisfied that the defendant owes a sum of RM626,747- 91 calculated as at 1st March 2023. This includes the 10% discount that was previously given to the defendant under the pre-condition that the defendant had to settle the remaining in full to the plaintiff for the machinery delivered and provided to the defendant. [57] The above evidence comes from SP1 who testified during cross examination as follows: So how much has been paid to you? they paid I think about 1.4, 5 or something. Something? You have to be. exact figure, ok. They owe me RM626,747-91. Actually, invoice there is RM2,756-89 and then balance 626,747. 626,747? Plus, interest. Your claim now is only for 626,747? Yes, correct. And plus, your interest? Yes, that one includes the interest. Included the interest? [58] Support can also be found from the defendant etter dated 24th January 2022. The letter acknowledged and admitted that the amount due to the plaintiff as of January 2022 was RM593,430-60, excluding the interest. [59] The answer to the issue is positive. ISSUES BY THE DEFENDANT [60] The defendant raises few issues. The Court does not intend to produce all the issues. [61] With respect, the Court could not consider the issues as they have never been filed or pleaded. See the Federal Court in Samuel Naik Siang Ting v. Public Bank Berhad [2015] 5 MLRA 665: their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government Of Perak v. Muniandy [1985] 1 MLRA 423 and Anuar Bin Mat Amin v. Abdullah Bin Mohd Zain [1989] 4 MLRH 388). In Blay v. Pollard & Morris [1930] 1 KB 628, record; and if it is desired to raise other issues there must be pleaded CONCLUSION [62] The Court has duly considered all the contentions of the defendant in his/her submission and does not wish to state in details as they can be seen in the record. Suffice to say the Court finds them hard to agree. [63] The authorities cited by the defendant also can be distinguished. [64] In the present case, the Court has considered the evidence as a whole. [65] After evaluating and assessing the testimonies of the witnesses, it is the finding of fact by this Court that SP1 is a credible witness. Various contemporaneous documents made in the ordinary course of business support his/her case. [66] With regards to the burden lies on the parties, the test applied by this Court is not beyond reasonable doubt, but rather on the balance of probabilities which is lighter. case of Superintendent of Lands and Surveys Kuching Division & Anor v. Mohamad Rambli Kawi [2014] 1 LNS 851: probabilities. This balance of probabilities is not the proof beyond reasonable doubt required in criminal cases. This balance of probabilities may be visualised as a scale with the plaintiff placing his evidence on one side and the defendant likewise on the other. The Court evaluates the evidence as to the weight it carries. Of course [67] After considering the pleadings, evidence and submission, on the balance of probabilities, the Court finds that the plaintiff has proved its case. Accordingly, the claim is allowed with cost. Prepared by: signed (Zulqarnain bin Hassan) Sessions Judge Sessions Court ATIP Klang, Selangor Darul Ehsan Dated: 21 April 2025 Solicitor for the plaintiff: Chai Wy Keat Advocates & Solicitors No. 44, Jalan BU 12/5 47800 Petaling Jaya Selangor Darul Ehsan Email: wkeatco@gmail.com Solicitor for the defendant: Krishna Bhaktabatsalu Messrs M. Thanakumaran & Shan No. 41A, Jalan Mohd Tahir 8, Off Jalan Sungai Mati 41200 Klang Selangor Darul Ehsan Email: lawofficekba@gmail.com