Nurulalia Binti Che Seman v Abdul Aziz Bin Abdul Rashid (Berniaga Sebagai Em Murni Enterperise) (CA-A52-5-06/2024)

The plaintiff claims in this action the repayment of RM109,800.00 from the defendant.

According to the Statement of Claim, the plaintiff had given a loan of RM109,800.00 to the defendant.

The monies were deposited by the plaintiff into the defendant’s account in three (3) tranches on 3.10.2023, 4.10.2023 and 26.10.2023.

No payment was then made by the defendant as promised.

Hence, this action and then Enclosure 11.

Enclosure 11 is the plaintiff’s application for summary judgment under O.14 of the Rules of Court, 2012 for the following reliefs-

An amount of RM109,800.00;

An interest under s. 11 of the Civil Law Act, 1956 from the month of December, 2023 until the date of filing of this action; and

An interest at the rate of 5% calculated on daily basis from the date of judgment until the date of settlement;

Costs on solicitor-client basis;

Costs to be borne by the defendant; and

Any other relief deemed appropriate by the Court.

I have perused the application made by the plaintiff and I am satisfied that they have complied with the preliminary requirements as laid down in National Company For Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 CLJ 220 and Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 3 CLJ 544. Hence, the burden now shifts to the defendant to raise triable issues.

The defendant resisted the application and filed an affidavit in reply (Enclosure 16).

Prior to the said application, the defendant filed his defence to the claim served on him (see Enclosure 6).

The defence contained only a bare denial of the loan and the sum claimed by the plaintiff.

The only alleged facts pleaded in his defence were these- (see paragraphs 6 and 7 of the Defence)

From the defence, it is very clear that the defendant’s affidavit was intended to improve the defence which I said contained only a bare denial. This is particularly in respect of paragraph 22 of the said affidavit where the defendant averred the real purpose of the monies and the alleged arrangement between the plaintiff and her ex-husband.

Merujuk kepada kesemua dakwaan Plaintif tersebut, saya menyatakan bahawa penafian itu adalah kerana saya telah dimaklumkan oleh adik saya iaitu bekas suami kepada plaintif bahawa beliau dan plaintif telah membuat satu perbincangan sebelum berlakunya penceraian antara mereka berdua pada 19.12.2023 dan hasil daripada perbincangan mereka tersebut, Plaintif telah bersetuju untuk membuat bayaran pemulangan hasil perniagaan sate yang telah diusahakan oleh adik saya dan dipegang oleh Plaintif, melalui akaun simpanan bank saya memandangkan adik saya tidak mempunyai akaun simpanan bank.

In a Federal Court’s case of United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd & Ors [1983] 1 MLJ 206 the plaintiff failed to plead in the statement of claim about the deposit of the shares as security nor the fact that the security had been realized in a series of sales of the shares between January and September, 1980. The facts were only disclosed for the first time in the plaintiff’s affidavit in support of O.14 Application. This is what was said by the Federal Court with regards the omission- This omission is surprising, to say the least, and we cannot but observe that any defect or omission in the Statement of Claim cannot be made good by affidavit evidence: Gold Ores Reduction Co v Parr [1892] 2 QB 14 where Mathew J said, that “it is most important that a defendant should know from the writ what the exact claim against him is”.

In the circumstances, it is my considered view that the defendant’s affidavit in reply does not render any assistance to him in the contest of the plaintiff’s present application.

Even if I was wrong in so holding, I find that the defendant failed to raise a triable issue which he hoped to do by putting up such allegations at this later stage.

The defendant never denied the amount that had been deposited into his account.

Despite of a bare denial to the claim, surprisingly, the defendant had admitted to his intention to borrow money from the plaintiff (see paragraph 7 of Enclosure 16)

What was done by the defendant was merely, inter alia, questioning the differences between documents and amounts, telling the plaintiff that she should not use middle persons and asking the plaintiff for proof of her averments in the affidavits. Hence, an afterthought.

I agree with the plaintiff in her written submissions on this point.

Premised on all the above, I allow Enclosure 11 in these following terms-

relief (a) – RM109,800.00.

relief (b) – interest at the rate of 5% per annum on RM109,800.00 from the date of Notice of Demand i.e.

28.1.2024 until the date of judgment.

relief (c) – interest at the rate of 5% per annum on the judgment sum from the date of judgment until the date of full settlement.

Costs on solicitors-client’s basis – not allowed for want of proof

Costs at RM1,500.00

Juna binti Jusoh for the plaintiff (Messrs Amisah & Co.)

Dzukarnain bin Mohamad for the defendant (Messrs Idayu, Hanim & Dzul)