Nagarajan A/L Periasamy v Mahendran A/L Chelladorai (BA-22NCvC-493-11/2019)

The Plaintiff’s claim is for recovery of the balance sum yet to be repaid by the Defendant from a friendly loan of RM 2,250,000 advanced to him. The Plaintiff relies on a friendly loan agreement dated 15.11.2013 executed by the parties. Only RM 580,000 of the loan sum was repaid. The amount the Plaintiff seeks to recover in these proceedings is the balance sum of RM 1,670,000. 28/09/2022 15:28:06 BA-22NCvC-493-11/2019 Kand. 114 The Plaintiff’s case

The Plaintiff’s case, on the face of it, is a straightforward case of a friendly loan advanced to the Defendant, for which the Defendant failed to repay. The transaction arose this way.

Sometime in 2013, the Defendant approached the Plaintiff for financial assistance to fund his investment in a company known as GF Offshore Sdn Bhd. The Plaintiff agreed to assist the Defendant. The amount was given on a trust basis and was to be repaid without interest. The loan of RM 2,250,000 was disbursed in various amounts of cash over a period of time.

As there were no documents to show that monies were advanced, the Plaintiff requested for written proof of the same. The Defendant agreed to the request. Parties then executed a Friendly Loan Agreement on 15.11.2013 (“FLA”). The material terms of the FLA is produced below:- NOW THIS AGREEMENT WITNESSTH as follows:-

In consideration of the loan sum of RINGGIT MALAYSIA TWO MILLION TWO HUNDRED FIFTY THOUSAND (RM 2,250,000) only lent or advanced to the Borrower by the Lender (the receipt whereof the Borrower acknowledge) free of interest, the Borrower and severally agree to repay the said loan free of interest whatsoever subject to the terms and conditions hereinafter stated.

The amount of RINGGIT MALAYSIA TWO MILLION TWO HUNDRED FIFTY THOUSAND (RM 2,250,000) only being the amount of the said principal sum shall be repayable after 3 years from the date of this Agreement stated herein above OR within 30 days upon demand by the Lender whichever earlier.

That if the Borrower default in payment as stipulated in clause 2 above the Lender can demand the return of the whole sum or the balance and proceed to recover the same through legal proceedings in which event all the legal costs shall be borne by the Borrower.

The execution of the FLA was witnessed by one Mr. Vijayasundra Thevar, an advocate and solicitor.

The Defendant made a first partial repayment of RM 400,000 vide a transfer to the Plaintiff’s account in CIMB Bank on 21.4.2016. Subsequent to this payment, the Defendant issued 5 post-dated cheques, each for the amount of RM 50,000 as further repayment of the amount owing. Two of the cheques were returned after which the Plaintiff did not trouble himself to deposit the remaining cheques.

The Defendant then pleaded for more time to repay the loan outstanding. The Plaintiff obliged. On 3.8.2017, the Defendant made a fund transfer of RM 40,000 to the Plaintiff’s account in

On 5.7.2018, the Plaintiff’s solicitors issued a letter of demand to request that the balance owing of RM 1,810,000 be paid to him. Four months later, in November 2018, the Defendant made another payment of RM 50,000 in cash.

On 4.3.2019, the Plaintiff issued a second letter to demand for the balance of RM 1,760,000. No payment was made in response to the letter.

On 19.4.2019, the Defendant’s solicitors, Messrs. Richard Law & Co. issued an irrevocable letter of undertaking stating that they will forward a sum of RM 710,000 owed by their client upon receipt of the monies.

On 12.6.2019, the Defendant made a payment of RM 90,000 to the Plaintiff through his solicitors, Messrs Kavi & Co. The payment was made vide an AmBank cheque issued to the Plaintiff’s solicitors, Nagarajan Peri & Co. The total repayment thus far made by the Defendant to the Plaintiff was RM 580,000.

To date, a sum of RM 1,670,000 remains unpaid. This sum now forms the subject matter of the instant suit. The Defendant’s case

The Defendant disputed the existence of the FLA relied on by the Plaintiff. He presented a different version of the circumstances surrounding the alleged loan.

The Defendant became acquainted with the Plaintiff sometime in early 2013, when the latter represented his brother who was charged for a bribery offence by the Malaysian Anti-Corruption Commission. He would occasionally meet the Plaintiff together with his brother.

The Plaintiff then intimated through the Defendant’s brother that he was interested to invest in GF Offshore Sdn. Bhd. The said company was involved in the oil and gas industry.

However, as he needed funds to invest in the said company, he requested the Defendant to assist in obtaining financing for the investment. The Defendant then contacted one K. Nadarajah, an advocate and solicitor who introduced a moneylender to the parties. A loan of RM 600,000 was advanced by one Lourdesamy. The Plaintiff pledged two titles of his property as security for the loan amount.

From the loan amount received, RM 50,000 was deducted as interest, leaving only an amount of RM 550,000. RM 400,000 was advanced to the Defendant to be invested in GF Offshore Sdn. Bhd. The Plaintiff kept the balance of RM 150,000 for himself. The Plaintiff subsequently changed his mind about investing in GF Offshore Sdn. Bhd. However, he allowed the Defendant to retain the loan sum on condition the latter service the interest on the loan.

The loan was eventually settled in full by the Defendant to K. Nadarajah some 6 to 7 months later. The amount of RM 600,000 was repaid by a CIMB cheque dated 25.1.2014 issued to Lourdesamy a/l Thavi.

The Defendant denies obtaining a friendly loan of RM 2,250,000 from the Plaintiff. He did not execute any FLA and claims that the FLA is fictitious. It was fraudulently created by the Plaintiff in an attempt to pin liability on the Defendant. However, he remembered that at the insistence of the Plaintiff, he signed a blank sheet of paper given to him by the Plaintiff. He was told that it was to prove that the Defendant took the sum of RM 400,000 for the purpose of investing in GF Offshore Sdn. Bhd.

As for the alleged repayment of RM 580,000 made by him towards the friendly loan, he claimed that it was in fact part payment towards the Plaintiff’s legal fees in respect of a criminal case involving the Defendant’s company, Alliance Oil Sdn. Bhd. (“Alliance Oil case”). The company was prosecuted in the Kuantan court by the Ministry of Domestic Trade and Consumer Affairs, and as the director of the company, the Defendant’s personal accounts and assets were frozen.

The Defendant engaged the Plaintiff to represent Alliance Oil Sdn. Bhd. and also to unfreeze the frozen accounts. The Plaintiff informed that an amount of RM 700,000 was required to ‘resolve’ the charges in the Alliance Oil case, including unfreezing the accounts.

The Defendant responded to say that he did not have the monies to pay the legal fees. The Plaintiff then offered to ‘advance’ the monies first in order to make the necessary ‘payments’ to people within the MACC to unfreeze the Defendant’s personal accounts as well as the company’s accounts.

After advancing the monies, the Plaintiff then pressured the Defendant for payment. The Defendant paid the Plaintiff an initial amount of RM 400,000, followed with further payments of RM 40,000, RM 50,000 and RM 90,000. The total amount paid to the Plaintiff in respect of handling the Alliance Oil case was RM 580,000.

Notwithstanding the payments, the Plaintiff continued to press the Defendant for payment towards what he had advanced for the Alliance Oil case. The parties eventually agreed on a final figure RM 710,000. To hold the Defendant to his agreement, the Plaintiff insisted that the Defendant’s solicitors issue a letter of undertaking according to the terms drafted by the Plaintiff. The Defendant then instructed his solicitors, Richard Law & Co. to issue a letter of undertaking dated 19.4.2019.

The upshot of the Defendant’s defence is that his signature was affixed to a blank sheet of paper and that friendly loan premised on the FLA is non-existent. Consequently, there is no balance sum of RM 1,670,000 owing from him which arose from a friendly loan of RM 2,250,000. The counterclaim of the Defendant

The Defendant claims that the Plaintiff had perpetrated a fraud on him by creating the fictitious FLA for the sum of RM 2,250,000.00. The particulars of fraud pleaded in the Counterclaim of the Defendant are summarised as follows:-

creating the FLA when no such document was ever seen by the Defendant;

(ii) inserting a witness’ name to the Defendant’s signature when there was no such witness to the blank sheet of paper signed by the Defendant;

(iii) failing to give a copy of the FLA prior to the commencement of this action;

(iv) claiming for other costs which are unsubstantiated in relation to the Alliance Oil case; and

wrongfully imposing interest on legal fees and other costs.

The Defendant alleges that the Plaintiff’s actions in perpetuating fraud against him caused him loss and damage. He seeks for a declaration that the purported FLA be declared null and void. In addition, the Defendant requests that an order for assessment be conducted to determine if the Plaintiff is entitled to his legal fees for Alliance Oil case. He further seeks an order that he be refunded the RM 580,000.00 paid to the Plaintiff with interest. Issues to be tried

Arising from the respective contention of the parties, the issue to be determined in the Plaintiff’s case is whether the Defendant is indebted to the Plaintiff for the balance sum of RM 1,670,000 given by way of a friendly loan. The determination of this issue will depend on the whether the Plaintiff can prove that a loan of RM 2,250,000 was in fact given to the Defendant, and that the payment of RM 580,000 was a repayment of the loan sum.

As for the Defendant’s counterclaim, this court will have to determine if the FLA was a fictitious document, the determination of which would depend on whether his signature was in fact procured fraudulently on a blank piece of paper. The trial

The trial commenced on 8.4.2021. Six witnesses testified for both parties. The Plaintiff had two witnesses and the defence, four. Both the Plaintiff and the Defendant gave evidence for their case. The trial spanned a total of six days in all. Analysis and decision of this court

It is trite law that the Plaintiff bears the onus of proving their claims and the Defendant, his counterclaim. (See: sections 101 and 102 of the Evidence Act, 1950 and Letchumanan Chettiar Alagapan (as executor to SL Alamelooo Achi (Deceased) & Anor v Secure Plantation Sdn. Bhd.) [2017] 5 CLJ 418). Was a friendly loan of RM 2,250,000.00 advanced by the Plaintiff to the

The Plaintiff relies heavily on the FLA to prove the existence of a friendly loan, in particular, clause 1 in which the Defendant expressly acknowledged having received the sum of RM 2,250,000.

The said loan is refuted by the Defendant. In view of the Defendant’s denial, the acknowledgment alone is insufficient as proof that the loan was given. There must be evidence of a loan sum disbursed to the Defendant. On this fact, there is no other documentary evidence to prove the loan was given to the Defendant. The evidence regarding the loan falls to be decided on the oral evidence of the parties.

The undisputed evidence was that the parties made their acquaintance in early 2013. Plaintiff said that the first instalment was in March of the same year where he disbursed the first amount of RM 280,000, followed with several amounts thereafter until November 2013. The monies were disbursed in cash.

It is the Plaintiff’s own evidence that the parties made their acquaintance only about one to two months prior to the FLA. They had obviously not been friends for a considerable period of time. This makes it even more imperative for a record of the loan to be made in the event of subsequent dispute. His evidence that the monies were disbursed on a trust basis appears implausible.

The Plaintiff did not even attempt to offer an explanation for his failure to keep any record. He merely said, “I withdraw from my account, I gave him cash and I think I can prove it through my current account from CIMB statements.” He was then referred to his bank statements with CIMB Bank commencing from June 2013 and questioned as to the absence of proof of his assertion. Upon being challenged, he then corrected his earlier testimony. He said he gave the loan monies prior to June 2013 and not after.

I am of the view that it is incumbent on the Plaintiff to furnish proof that he advanced the loan amount to the Defendant, particularly since the execution of the FLA is strenuously denied by the Defendant. However, I do not find a shred of documentary evidence to show the disbursement of the loan sum of RM 2,250,000. The Plaintiff admitted as much in cross examination when asked the same.

The defence submitted that it is completely illogical that the Plaintiff being an advocate and solicitor of some 18 years’ experience, would have parted with such a large amount to the Defendant whom he had not known for long without any documentary proof, acknowledgment or security. I agree with the contention. Any prudent lender of money would have kept some documentary proof of the monies advanced. It is not only implausible but incredulous that a substantial amount of money could have been given without any record whatsoever.

When asked as to the source of the funds for the alleged loan, he stated that he borrowed from three individuals, in addition to his own money. When pressed further, he came up with some vague reference to three names, Ramasamy, Malarvanan and Kannan from whom he borrowed about RM 800,000, RM 800,000 and RM 200,000 respectively. He said no security was given for these amounts he borrowed.

None of these individuals were called as witnesses and nor any records of him having borrowed from them were adduced. Again, the amounts are not unsubstantial. It does not seem credible that these persons would have lent him money only for him to lend the same to the Defendant.

Next, to substantiate his claim of a friendly loan, the Plaintiff contends that the Letter of Undertaking issued by Messrs Richard Law & Co. is an acknowledgment of the Defendant’s indebtedness to the Plaintiff. As the terms are material, the contents of the letter is set out herewith:- DATO’ NAGARAJAN A/L PERIASAMY, NO. 404a, 1ST FLOOR JALAN TUKANG 43000 KAJANG SELANGOR DARUL EHSAN Dear Sirs, RE: IRREVOCABLE LETTER OF UNDERTAKING RELEASE OF THE SUM OF AMOUNT RM 710,000.00 We refer to the above matter wherein we are the solicitor acting for Dato’ Mahendran A/L Chelladurai (NRIC No. 760508-14-6185). We hereby undertake to forward to your good self the sum of Ringgit Malaysia Seven Hundred Ten Thousand (RM 710,000.00) owed by our client upon receipt the same and not later than 31/7/2019. We hereby further undertake to always keep your good self updated on the status of the release of the said sum. Thank you. Yours faithfully, -Sgd-MESSRS RICHARD LAW & CO /RL c.c. Dato’ Mahendran A/L Chelladurai

Contrary to the contention of the Plaintiff, the Letter of Undertaking does not support the Plaintiff’s case of a friendly loan of RM 2,250,000.000. Having perused the contents, I find no reference to a friendly loan for that amount, taken by the Defendant. Although the letter seems to suggest that the Defendant owes the Plaintiff RM 710,000, he had an explanation as to how this amount came about. It was the legal fees charged by the Plaintiff for his handling of the Alliance Oil case involving the Defendant’s company.

The evidence also shows that the contents of the Letter of Undertaking was drafted by the Plaintiff himself, evident from the Whatsapp printout of the exchange between the parties. (See: Annexure A to the Defendant’s witness statement). Having examined Annexure A, I have no doubt that the Letter of Undertaking was drafted by the Plaintiff as the contents are exactly the same as the Letter of Undertaking sent by Messrs Richard Law & Co. This supports the Defendant’s testimony that it was on the insistence of the Plaintiff that the Letter of Undertaking was issued.

I therefore do not find that the Letter of Undertaking does, in any way, establish that the Plaintiff had given a friendly loan to the Defendant. The reference to the amount of RM 710,000 is more consistent with the Defendant’s story that it was in relation to the legal fees charged for the Alliance Oil case which the Plaintiff was pressurising him to settle, even after he had paid RM 580,000. Parties eventually agreed to the final figure of RM 710,000 as the Plaintiff’s legal fees, hence the Letter of Undertaking.

Having evaluated the evidence, I find the Defendant’s version more probable than that of the Plaintiff’s. The first repayment of RM 400,000 is found in the Plaintiff’s CIMB bank statement as at 30.4.2019. It shows that on 21.4.2019, a sum of RM 400,000 was transferred from the Defendant to the Plaintiff. The transaction was described as “TR FROM CA PAYMENT FOR LEGAL FEES dato’ nagaraja DATO’ MAHENDRA A/L”.

As I have doubts as existence of the friendly loan, I am more inclined to believe the Defendant’s version, which is supported by the description of the transaction in the CIMB bank statement of the Plaintiff’s.

The Plaintiff further relies on the failure of the Defendant to respond to the letters of demand sent to him to contend that by his failure, the Defendant is estopped from denying the existence of the friendly loan. The Plaintiff’s contention here is wholly misconceived. I know of no proposition of law which says that the failure to respond to a letter of demand must mean an admission to the assertion of facts by the Plaintiff, to the extent that the latter is relieved of his burden of proof.

To conclude on the issue of the friendly loan, I find there is clearly a lack of documentation to prove its existence. I am not convinced that a loan of RM 2,250,000.00 was advanced to the Defendant by the Plaintiff.

It is only upon such proof on a balance of probabilities that the burden shifts to the Defendant to rebut the fact of his indebtedness arising from the loan. Bearing in mind the provisions of s. 103 of the Evidence Act, 1950 that that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, I find the Plaintiff has not discharged this evidential burden of proof.

In this regard, I am guided by the Federal Court case of Johara Bi Binte Abdul Kadir Marican v Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139 which held, But the learned trial judge did not quite believe the evidence of Yakub. He thought, relying on Sime Darby & Co v Official Assignee AIR 1928 PC 77 and Abrath v NE Railway Co (1883) 11 QBD 440, per Brett M.R. at page 452 that it was all a matter of proof and that until and unless the plaintiff had discharged the onus on her to prove her case on a balance of probabilities the burden did not shift to the defendant and no matter if the defendant's case was completely unbelievable, the claim against him must in this circumstance be dismissed. With respect, we agree with this judicial approach. We ourselves have in Wong Chong Chow v Pan-Malaysian Cement Works Berhad [1980] 2 MLJ 75 considered that difficult questions of fact could often be resolved by considering the burden of proof. (See also: Marappan a/l Muthusamy v R Siva a/l Ramasamy [2014] 4 MLJ 428, Court of Appeal).

In the premises, I find the claim of the Plaintiff based on the FLA has not been proven on a balance of probabilities. Was the FLA a fictitious document which was never executed by the

The Defendant denies executing the FLA. The fact of non-execution was relied on by the Defendant not only to refute the Plaintiff’s claim but to found a counterclaim. The counterclaim seeks inter alia, a declaration that the FLA be declared null and void.

Again, the version of both parties on the execution of the FLA are diametrically opposed to each other. The Defendant denies executing the FLA and explained the circumstances in which his signature appeared on the FLA.

According to the Defendant, the Plaintiff was interested to invest in GF Offshore Sdn. Bhd. As he needed funds for that purpose the Defendant sought the assistance of K. Nadarajah (DW3), an advocate and solicitor in Klang, who facilitated the loan amount of

DW3 in his testimony said he was approached by the Defendant to introduce a moneylender for the Plaintiff. The Plaintiff through the Defendant, forwarded two landed titles as security for the intended loan. He recalled that one of his clients was willing to lend only RM 600,000 based on the security given.

DW3 saw the disbursement of the amount of RM 600,000 as he was there with the moneylender and the parties when the money was handed over. Some four to five months later, the moneylender called him to ask for the repayment of the loan. The Defendant said that as he had assumed responsibility for the loan having taken RM 400,000 from the RM 600,000 loan, he repaid the loan in full. The Plaintiff was no longer interested in the loan. He adduced a photo stated copy of a CIMB cheque for RM 600,000 made out to Lourdesamy (marked as D1) as full repayment. The land titles pledged as security for the loan have since been returned to the Plaintiff.

The Defendant’s story is that at the Plaintiff’s insistence, he was given a blank sheet of paper containing the Defendant’s name printed on it. He then signed on the space above his name. The blank sheet was given to him to be signed outside the Plaintiff’s office. When he questioned the Plaintiff as to the reason for signing the paper, the Plaintiff replied that he needed to prepare some documents as proof that RM 400,000 was received by the Defendant from the loan of RM 600,000.

He also said no other persons were present when he signed the blank sheet of paper. This appears to be the explanation he proffered as to the appearance of his signature on the FLA.

I find the Defendant’s allegation of signing on a blank sheet of paper inherently incredulous. Firstly, he is not an uneducated man. He is a businessman, whom one would not expect to blindly sign on a blank sheet of paper without considering the possible consequences of such an action. Further, the parties are not close friends for him to trust the Plaintiff unquestioningly.

Mr. Vijayasundra Thevar a/l Theva, an advocate and solicitor witnessed the Defendant’s signature. He testified as PW1. I have no reason to doubt his evidence as to being present and witnessing the signature of the Defendant to the FLA.

The Defendant attempted to bolster his case of a fictitious FLA by challenging the stamping of the agreement. The FLA showed a stamp duty of RM 450 was paid on 15.11.2013 at the Hulu Langat stamp office. However, whilst the trial was in progress, the Defendant’s solicitors wrote to Jabatan Operasi Setem & CKHT (Lembaga Hasil Dalam Negeri) office to enquire about the genuineness of the stamp duty affixed on the FLA. They received a reply vide a letter dated 29.11.2021 stating that that there was no record of a payment of stamp duty of RM 450 on 15.11.2013. Further, the stamp affixed on the FLA was not that used by the Hulu Langat office. The letter by Jabatan Operasi Setem & CKHT was adduced in court.

Subsequent to the letter from Jabatan Operasi Setem & CKHT, on 10.12.2021, the Plaintiff rectified the stamping of the FLA by paying a stamp duty of RM 2,700 at the Kuala Lumpur stamp office. This amount was the full payment for the FLA sum of RM 2,250,000. The earlier stamp duty on the FLA of RM 450 was not taken into account.

The Defendant called as its witness, an officer from Jabatan Operasi Setem & CKHT (DW2) who testified that if the stamp duty paid was insufficient for the instrument, the party would usually be required to do an up-stamping by paying the shortfall. The up- stamping would be done in the stamp office where the stamp duty was first paid.

Here, the payment for the stamp duty was at the Kuala Lumpur office instead of the Hulu Langat office. The Defendant therefore contends that the earlier stamping of RM 450 was most likely false. The falsification of the stamp duty calls into question the Plaintiff’s credibility and character.

Whilst I would agree that the evidence on the stamp duty is suggestive of improbity, I find that it has no bearing on the question whether the Defendant did or did not execute the FLA.

The Defendant in his counterclaim stands in the same position as the Plaintiff as far as the burden of proof is concerned. The Defendant in his counterclaim has specifically alleged fraud by pleading that “the Plaintiff had committed and perpetrated a fraud on the Defendant by creating a fictitious “Loan Agreement” for the sum of RM 2,250,000.00.”

The standard of proof for fraud in a civil case has been settled by the Federal Court in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1. The Defendant here is to prove his case of fraud on a balance of probabilities.

Having considered the evidence of the Defendant in support of his counterclaim, I am not convinced that his signature on the FLA was procured by fraud in the manner pleaded in his counterclaim. Consequently, the counterclaim premised on fraud fails.

Having said that, I would hasten to add that my finding does not conversely mean that the FLA is enforceable. It bears repeating that the Plaintiff’s claim based on the FLA has not been made out on the ground that the loan allegedly disbursed was not established by credible evidence. My finding that the FLA was in fact executed is not to be taken as inconsistent with my earlier finding that the Plaintiff’s claim on the friendly loan is not established.

This is a case where I find that both parties failed to discharge the burden of proof in order to succeed in their respective claims. The evidence adduced by both parties in support do not form one consistent, credible story to make theirs more probable than his opponent’s. I refer to the oft-quoted case of Miller v Minister of Pensions [1947] 2 All ER 372 where Lord Denning explained, “If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

I also find the Federal Court case of Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 instructive in guiding me in my conclusion that both parties had not proven their respective case. The Federal Court held, [55] But ‘when (the plaintiff) gives such evidence as will support a prima facie case, the onus shifts on to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage, in the course of the evidence, the onus shifts from one side to the other. When after the entire evidence has been adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden, but if it has, on the evidence, no difficulty arriving at a definite conclusion, then the burden of proof on the pleading recedes into the background’ (Woodroffe and Amir Ali, at p 3194; see also Abrath v The North Eastern Railway Company at p 452). ‘… the onus of proof may shift … but the question must ultimately arise whether the person who is bound to prove the affirmative of the issue … has discharged … that burden’ (Jane Wakelin v The London and South Western Railway Company (1886) 12 App Cas 41 per Lord Halsbury LC) or proved ‘his case sufficiently to justify a judgment in his favour’ (Stoney v Eastbourne Rural District Council [1927] 1 Ch 367 at p 397 per Lord Hanworth MR).

For the sake of completeness, I shall also deal with another aspect of the Defendant’s counterclaim which is based on the Alliance Oil case. At prayer 23 (ii) and (iii) of his pleading, the Defendant seeks for an order of assessment to determine if the Plaintiff is entitled to his legal fees in respect of this case. In addition, the Defendant prays for a refund of the amount of RM 580,000 which had been paid to the Plaintiff.

The Defendant’s evidence at the trial did not address this part of his claim. The written submissions of his counsel also did not address this claim. In the circumstances, I shall consider it as having been abandoned.

Premised on the foregoing reasons, both the claim of the Plaintiff and the counterclaim of the Defendant are dismissed. I consider the Plaintiff’s claim to be the main action as the Defendant’s allegation of non-execution of the FLA is principally raised in defence to the Plaintiff’s claim, notwithstanding a counterclaim was founded on the same fact.

In view of this, I am of the view that the Plaintiff ought to bear the costs of this action. I order that costs of RM 50,000 be paid by the Plaintiff to the Defendant. Dated : 27th day of September 2022 -sgd- ………………..….... Alice Loke Yee Ching Judicial Commissioner High Court of Malaya at Shah Alam Counsel for Plaintiffs : Mr. Dinesh Athinarayanan (Ms. Vinoshini Narayanasamy with him) Tetuan Nagarajan Peri & Co Counsel for Defendants : Mr. Alex Nandaseri De Silva (Miss Vinisha Kaur Gill with him)