Rajo Isa A/L Michael v 1. ) Jegatish Kumar A/L Kasavan (BA-22NCvC-220-07/2020)

Jegatish Kumar a/l Kasavan 2. CIMB Islamic Bank Berhad … Defendant JUDGEMENT [1] The following is the Court’s decision at the end of a full trial between the parties. Trial commenced on 10.01.2023. After eight days of hearing over a period of almost two (2) months, parties closed their case on 04.03.2024. In total there were eight (8) witnesses called, three (3) by the Plaintiff, three (3) by the 1st Defendant (“D1”) and two (2) by the 2nd Defendant (hereinafter referred to as “CIMB”). 30/08/2024 09:24:05 BA-22NCvC-220-07/2020 Kand. 152 [2] Having gone through the pleadings of all parties, the evidence adduced at the trial both oral and documentary, and upon reviewing the submissions of counsel, this Court had on 26.06.2024 dismissed the Plaintiff’s claim. [3] Dissatisfied with the above decision, the Plaintiffs have since lodged an appeal against the above decision by way of a Notice of Appeal dated 24.07.2024 to the Court of Appeal. The following are my grounds of judgment in relation to the said appeal. Introduction [4] The factual matrix forming the background of the case are as per the summary of case filed by parties to the suit. Issues For Trial [5] The following are the issues for trial raised by the Plaintiff: i. Whether the Plaintiff intended to sell the Property to D1? What was the Plaintiff’s actual intention? ii. Whether the acknowledgement of payment/debt is sufficient to proof that the Plaintiff had received the sum of RM1.5 million? iii. Whether the loan facility received by D1 from CIMB extinguishes all of the Plaintiff’s debts to all of his creditors? iv. Can the Plaintiff be liable for the loan facility of RM1.2 million given by CIMB to D1 despite him not benefiting from the said loan facility? Summary of D1’s submission [6] It is D1’s contention that the Plaintiff had failed to prove its pleaded case. a) The Plaintiff’s claim of only having obtained a loan of RM 400,000.00 in paragraph 6 of the Statement of Claim was fatally contradicted by his own admission that he had received RM 590,000.00 prior to the execution of the SPA and MOT. The evidence of D1 that he had procured and provided RM 1,200,000.00 as the full loan sum was corroborated by DW1 and DW3. b) The Plaintiff’s claim of being in total and complete dark about the Transfer and Charge until February 2019 (being the very root of his claim) was fatally contradicted by:- - the admission by his own daughter that she conducted a Land Search on the said Property two months before the Notice to Vacate was sent on 04.02.2019 by D1; - the admission by his own daughter that she allowed the valuation officers sent by the Bank into the said Property to conduct a valuation exercise when D1 applied for the loan from CIMB; - the unchallenged evidence led by D1 that the Plaintiff had full knowledge of the Transfer after D1 had informed and advised him of the same as early as April 2018 and also by his own daughter i.e. PW1 and most importantly, by the Plaintiff’s own present Counsel, Revathi Kannan as early as August 2018, almost 12 months before this action was filed; - The very root and foundation of the Plaintiff’s claim is that he never knew of the Transfer until February 2019. The unchallenged oral and documentary evidence alluded to above and adduced at the Trial categorically states otherwise. This was simply to confabulate a story and perpetuate a lie by the Plaintiff, PW1 and most importantly, by the Plaintiff’s Counsel. Paragraphs 21 and 28 of the Plaintiff’s Reply dated 06.11.2019 clearly indicates that the Plaintiff’s and his Counsel, had seen the Land Search and yet elected to state otherwise in the reply to the Notice to Vacate and deliberately omitted the same in the Statement of Claim; - The total lack of credibility on the part of the Plaintiff and PW1 and most importantly by the Plaintiff’s Counsel, Revathi Kannan only lends credence and weight to the D1’s Defence. c) The alleged elements of fraud and / or fraudulent misrepresentation was never proven and was abandoned. Fearing being outed on the stand, the Plaintiff elected to state duress, a claim that was never pleaded and quickly pointed out by My Lord and must be rejected in toto. [7]

the total amount advanced to the Plaintiff was RM1.2 million which were divided into 4 tranches: - 1st loan of RM190,000-00; - 2nd loan of RM400,000-00; - 3rd loan of RM500,000-00; and - 4th loan of RM110,000-00.

There was willful and voluntary execution of the SPA and MOT by the Plaintiff.

The Plaintiff had full knowledge of the transfer of the Property to D1 and that the loan was obtained by D1 vide a charge over the Property;

The Plaintiff’s allegations of fraud and misrepresentation are baseless. To the contrary, there were eight (8) occasions of fraudulent misrepresentation by the Plaintiff against D1.

The Plaintiff was educated and well versed in English and

There were no complaints made by the Plaintiff against D1 prior to the filing of this suit;

The Plaintiff and his daughter (PW-1) are untruthful and unreliable witnesses;

The Plaintiff’s testimony is wholly hearsay and ought to be disregarded by this Court; and

The Plaintiff’s reliance on unpleaded facts must be rejected by this Court; D1’s counterclaim [8] With reference to his counterclaim against the Plaintiff, D1 took the following position: a. D1 had indeed procured funds amounting to RM1,200,000.00 to the Plaintiff; b. The said Property was transferred to D1 with the knowledge and the consent of the Plaintiff; c. Since the Plaintiff could not repay D1, the Plaintiff agreed for D1 to charge the said Property to obtain a loan from a financial institution for purposes of payment to D1’s relatives, friend and / or acquaintances who had loan him monies for the benefit of the Plaintiff; d. The Plaintiff’s claim against D1 was motivated by ulterior motives and not bona fide; e. It was a mere attempt to evade repayment of the loans advanced to the Plaintiff in the sum of RM 1,200,000.00 and to avoid liability of the instalment payments for the said Property due and owing to CIMB; f. The Plaintiff’ claim against D1 for alleged fraud and / or fraudulent misrepresentation is unsubstantiated and mere sham. [9] D1 also prays for his claim for special damages in the sum of RM105,529-93 be allowed and that costs be awarded against the Plaintiff on indemnity basis. Court’s Analysis and Findings on the suit by the main suit [10] Before I proceed to deal with the issues for determination as listed out in the Plaintiff’s written submission, I wish to touch on the case pleaded by the Plaintiff. [11] In his Statement of Claim, the Plaintiff alleged that D1 only gave him a loan of RM400,000-00. This amount was paid to the bank account of his daughter, Lorena and the balance was paid by the Syarikat J.K.S Perkasa Sdn Bhd. D1 had represented and given an undertaking to the Plaintiff that he will only hold the title to the Plaintiff’s property as security. The Statement of Claim further states that sum of RM319,662.06 and 3,650,000 Phillipina Piso was then transferred by the Plaintiff to the 2nd Defendant. In addition, the Plaintiff paid D1 an additional sum of 8,000 USD as repayment of the loan given by D1 to him. Despite these amounts being paid, D1 had fraudulently transferred the land to his name. [12] The Plaintiff’s Statement of Claim also alleged the following: i. At paragraph 12: “Plaintif takut Defendan akan melakukan sesuatu ke atas hartanah tersebut memandangkan Plaintif berada di Filipina pada masa yang material dan kedua anak Plaintif masih tinggal di Hartanah tersebut akan membayar dan mendepositkan suatu jumlah yang diminta oleh Defendan dimana Plaintif telahpun membuat bayaran lebihan daripada jumlah yang dipinjam sebanyak RM19,662.06”; ii. At paragraph 13: “Plaintif juga turut mengesahkan bahawa Defendan bukan sahaja memberikan representasi yang palsu tetapi telah melakukan tindakan frod dengan memindahmilik Hartanah tersebut ke atas namanya pada 5 April 2018; Butir-butir frod: a) Mendapatkan tandatangan Plaintif untuk tujuan memindahmilik Hartanah tersebut ke atas namanya tanpa pengetahuan Plaintif yang merupakan pemilik Hartanah tersebut pada masa yang material; b) Mengunakan Borang Pindahmilik (Form 14A) yang ditandatangani oleh Plaintif untuk tujuan sekuriti untuk memindahmilik Hartanah tersebut ke atas namanya; c) Membuat serahan dokumen-dokumen tersebut ke Pejabat Tanah untuk melaksanakan proses pindahmilik Hartanah tersebut ke atas nama Defendan tanpa pengetahuan Plaintif ataupun Lorena; d) Defendan telah menggadaikan Hartanah tersebut kepada CIMB Islamic Bank Berhad pada 7 September 2018 tanpa pengetahuan Plaintif atau Lorena”; iii. At paragraph 14: “Plaintif atau Lorena percaya bahawa Defendan tidak akan melakukan sebarang transaksi ke atas Hartanah tersebut, memandangkan Plaintif kenal Defendan”; iv. At paragraph 15: “Plaintif menyatakan Defendan bukan sahaja telah memindahmilik Hartanah tersebut ke atas namanya pada 5 April 2018 namun turut telah menggadaikan Hartanah tersebut.”; v. At paragraph 16: “Plaintif mahupun Lorena langsung tidak mempunyai pengetahuan mengenai sebarang tindakan dan transaksi dilakukan oleh Defendan terhadap Hartanah tersebut termasuk samada sehubungan memindahmilik Hartanah ke atas namanya…”; vi. At paragraph 17: “Plaintif telah terkejut dan takut setelah melihat Notis tersebut kerana rumah tersebut merupakan satu-satunya rumah yang diduduki oleh Plaintif dan adik lelakinya..”; vii. At paragraph 18: “Atas ketakutan bahawa anak-anak Plaintif perlu mengosongkan rumah tersebut Plaintif telah mendapatkan nasihat peguamnya..”; [13] Looking back at the evidence adduced during the trial, I can safely conclude that there is an abundance of evidence in the form of emails and Whatsapp communication showing that the SPA was signed and entered into willfully by the Plaintiff. All these, proves that there was voluntarily execution of the SPA and memorandum of transfer and that the Plaintiff had full knowledge of the transfer of the property to D1. The Plaintiff at all material times knew that D1 had obtained a loan from CIMB. In fact, it was the Plaintiff himself who told D1 to do so: “Please go ahead. Charged my property. I need the money…” (para phrasing purely mine). [14] In other words, it is this Court’s finding that the Plaintiff’s allegation in his Statement of Claim are baseless and unsubstantiated. These allegations are in fact lies. It is apparent and crystal clear to this Court that the Plaintiff knew what was happening. The Plaintiff was the one who wanted the loan when he agreed to enter into the SPA for purposes of security for the loan which given out by the Plaintiff. [15] Whilst, D1 initially did not charge the property as security for the loan given out to the Plaintiff as he did not want to burden the Plaintiff, he subsequently took the view that if the loan is to be taken by him there was a risk that the Plaintiff would not pay the installment. For this purpose, the 2nd Defendant borrowed RM500,000-00 from DW3. As time pass, there was an arrangement that the Plaintiff be allowed to purchase the property. For this purpose, the Plaintiff and D1 agreed to execute the SPA. Both parties had agreed that the loan amount of RM590,000-00 given by D1 to the Plaintiff was to be considered as an amount paid up front, whilst the balance purchase price was to be paid by way of the loan taken by D1 from CIMB. Despite the agreement between the Plaintiff and D1 that the loan was to be serviced by the Plaintiff, the Plaintiff failed to do so. Hence, D1 had to repay the loans himself. This continued until it reached a stage where D1 could no longer afford to continue servicing the loans. D1 then saw it fit to sell off the Property so that the loan taken from CIMB could be settled. [16] Going back to the issues for determination, this Court’s answers are as follows: i. Whether the Plaintiff intended to sell the Property to D1? What was the Plaintiff’s actual intention? Answer: In the beginning, the Plaintiff did not intend to sell the Property. In the course of time, the Plaintiff had no choice but to allow D1 to purchase the Property. As the Plaintiff and his children still needed a place to live, the Plaintiff proposed to pay rental to D1. This did not materialize, prompting D1 to issue a notice of vacant possession. ii. Whether the acknowledgement of payment/debt is sufficient to proof that the Plaintiff had received the sum of RM1.5 million? Answer: The evidence adduced by D1 shows that the Plaintiff had received a sum of RM1.2 million in four (4) tranches: First loan: RM190,000-00; Second loan: RM400,000-00; Third loan: RM500,000-00 and Fourth loan: RM110,000-00. iii. Whether the loan facility received by D1 from CIMB extinguishes all of the Plaintiff’s debts to all of his creditors? Answer: In a situation where, the Plaintiff has failed to proof his allegation of fraud by the Plaintiff, this Court has no duty Court to entertain his allegations that his creditors have not been paid. Notwithstanding so, this Court takes cognizance of the fact that there are no suits against the Plaintiff by any of his creditors. In concluding so, I am guided by the decision in the celebrated case of Selvaduray v Chinniah [1939] MLJ 253 where the decision of Terrell AG CJ is re-produced below. “In my opinion this line of reasoning cannot be supported. In a case such as the present the position has been clearly stated in the judgment of Brett M. R. in Abrath v North Eastern Railway Co 11 QBD page 440 at p 452:– "But then it is contended (I think fallaciously), that if the plaintiff has given prima facie evidence, which, unless it be answered, will entitle him to have the question decided in his favour, the burden of proof is shifted on to the defendant as to the decision of the question itself. This contention seems to be the real ground of the decision in the Queen's Bench Division. I cannot assent to it. It seems to me that the propositions ought to be stated thus: the plaintiff may give prima facie evidence which, unless it be answered either by contradictory evidence or by the evidence of additional facts, ought to lead the jury to find the question in his favour: the defendant may give evidence either by contradicting the plaintiff's evidence or by proving other facts: the jury have to consider upon the evidence given upon both sides, whether they are satisfied in favour of the plaintiff with respect to the question which he calls upon them to answer; if they are, they must find for the plaintiff; but if upon consideration of the facts they come clearly to the opinion that the question ought to be answered against the plaintiff, they must find for the defendant. Then comes this difficulty–suppose that the jury, after considering the evidence, are left in real doubt as to which way they are to answer the question put to them on behalf of the plaintiff: in that case also the burden of proof lies upon the plaintiff, and if the defendant has been able by the additional facts which he has adduced to bring the minds of the whole jury to a real state of doubt, the plaintiff has failed to satisfy the burden of proof which lies upon him". Applying the principles laid down by the Court of Appeal in the above case, it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial the learned Judge has found that the position was exactly even, i.e. that any preponderance in the plaintiff's favour had disappeared. That being the case the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff. But as he was not the claimant, that consideration is quite immaterial. It is quite sufficient for his purpose if he can satisfy the Court that the plaintiff has not established his case and the learned Judge has so found.”. iv. Can the Plaintiff be liable for the loan facility of RM1.2 million given by CIMB to D1 despite him not benefiting from the said loan facility? Answer: Given the fact that the loan facility of RM1.2 million was borrowed by D1 from CIMB on clear express terms that D1 is the borrower, this Court is of the considered view that the Plaintiff is not liable for the said loan facility. Instead, he is only liable to reimburse D1 for loan instalments paid to CIMB. [17] In my final analysis, I find that the Plaintiff has failed to proof fraud as alleged in his Statement of Claim (see the Federal Court case of Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1). The Plaintiff’s claim is therefore dismissed. The 2nd Defendant’s counterclaim against the Plaintiff [18] The evidence here shows the 1st Plaintiff is a con man who has no credibility. He kept making representation after representation for which he could not keep up his bargain. Promises of project, promises of monies coming in and Defendant has listed down eight instances of misrepresentation. [19] This Court takes the view that the Plaintiff ought to be made liable to the 2nd Defendant for the loan repayments made to the 1st Defendant. For this purpose, this Court forms the view that cut-off date is required based on the point in time where the Plaintiff told D1 that he can have the Property. [20] Based on further submission by counsel for D1, this Court takes the view the applicable cut-off date would be based on the date of the letter demanding vacant possession. This Court therefore allows D1’s counterclaim for the sum of RM61,230-00 being the instalments paid D1 to CIMB for the months of October 2018 to May 2019, and August 2019 and September 2019. [21] In terms of the other reliefs sought by D1, this Court’s orders are: a. paragraph (ii) of D1’s counterclaim not allowed; b. paragraph (iii) not allowed; c. Paragraph (iv) not allowed; d. Paragraph (v) allowed; e. Paragraph (vi) not allowed; f. Paragraph (vii) not allowed; CIMB’S COUNTERCLAIM AGAINST D1 [22] With reference to CIMB’S counterclaim, D1 had at the very early stage of proceedings conceded that the charge registered by CIMB on the said Property is valid, lawful and enforceable. [23] As at 01.02.2024, the total outstanding loan sum in respect of the said Property is in the sum of RM 1,448,820,39. This is an undisputed fact. [24] However, CIMB’S claim as per prayer (c) in Paragraph 41 of it’s Defendant’s Defence and Counterclaim as at 13.02.2020 is for the sum of RM 4,647,017,92. Court’s Analysis and Findings on D2’s counter claim [25] The facts are clear as the loan not disputed. The fact that D1 is in default of the loan to CIMB is also not disputed. The only thing that remain for me to consider is the amount to be paid by D1 to CIMB i.e. whether this amount is the actual amount owing of approximately RM1.5 million or whether the sum of approximately RM4 million plus. [26] In this regard, under the terms of the loan, once the loan is in default, the bank is entitled to ask for the RM4 million plus: RM4.719,278.88. Be that as it may, should there be a settlement for the amount owing the appropriate amount of Ibrah, discount or rebate ought to be given. And in this sense the order that will be made by this Court will include this. So, the wordings of the orders to be drafted on this issue must be worded carefully. Costs [27] Having heard brief submissions by parties on the issue of costs, this Court orders as follows: a. As between the Plaintiff and D1, cost to be paid by the Plaintiff to D1 is RM45,000; b. As between the Plaintiff and CIMB Bank (D2), cost to be paid by the Plaintiff to CIMB is RM25,000; and c. As between, D1 and CIMB, cost to be paid by D1 to CIMB is at RM10,000. [28] The above award of costs are all subject to allocatur. With reference to the sum of RM10,000-00 payable by D1 to CIMB, I’m amenable to a Sanderson Order being granted as applied for by En. Krishna Dallumah. Dated 20th June 2024, ………………………………….. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitors for the Plaintiff: Tetuan Revathi & Partners, Peguamcara & Peguambela, No.1-11, Jalan Cenuk 2, Prima Avenue 3, Baru 10, Jalan Puchong, 47100 Puchong, Selangor. (No.Ruj : RP/RK/Lit/715/19) Solicitors for the Defendant: Tetuan Ven & Associates, Peguambela & Peguamcara, Unit D6, 2nd Floor, The Stories Apartment, Jalan Langgak Tunku, Bukit Tunku, 50480 Kuala Lumpur. (No.Ruj : RP/RK/LIT/715/19)