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IN THE COURT OF APPEAL, MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCC)(W)-103-01/2018 BETWEEN RAMESH A/L RAJARATNAM ... APPELLANT RAVINDRAN A/L SIVASUBRAMANIAM AND ... RESPONDENT (In the Matter of High Court of Malaya at Kuala Lumpur Civil Suit No: 22NCC-344-10/2015 Between Ravindran a/l Sivasubramaniam ... Plaintiff And Dato' Ramesh a/l Rajaratnam ... Defendant) CORAM: DR BADARIAH BINTI SAHAMID, JCA HARMINDAR SINGH DHALIWAL, JCA NOR BEE BINTI ARIFFIN, JCA JUDGMENT OF THE COURT [1] This appeal is primarily concerned with a dispute that arose in connection with a personal loan agreement of RM10 million. The plaintiff claimed that he had loaned to the defendant, at his request, a sum of RM10 million over a period of time. It was claimed that both parties subsequently executed a personal loan agreement evidencing the loan amount of RM10 million. The defendant denied owing any monies which led to the filing of the civil suit in the High Court. [2] After a full trial, the Kuala Lumpur High Court by an order dated 21 December 2017 allowed the plaintiffs' claim against the defendant with costs of RM50,000.00. Being dissatisfied with the decision of the High Court, the appellant/defendant filed this appeal. [3] The appeal was heard on 10 September 2019. After having read the written submissions as well as hearing oral arguments on the issues raised, we dismissed the appeal and affirmed the order of the High Court. Our reasons for doing so now follow and will constitute the judgment of the court. For convenience, the parties will be referred to as they were in the High Court. The Factual Background [4] The background facts leading to the filing of the action in the High Court are well summarized in the judgement of the learned Judge and can be restated, as far as they are relevant to the present appeal, as follows. The plaintiff and defendant were friends. The plaintiff was a businessman. The defendant was an accountant in one of the big four accounting firms where he later became executive director. [5] After the defendant ceased to work with the accounting firm, he turned to doing business on his own. The plaintiff claimed that he had loaned RM10 million to the defendant for his business. Some evidence was revealed at the trial as to the nature of the business of the defendant. At the defendant's request, the plaintiff had purchased 30 million shares in a company called Malaysian Merchant Marine Berhad ("MMMB"). With this purchase, the defendant became the Chief Executive Officer of MMMB. [6] The defendant had agreed to pay back the plaintiff for the monies expended but could not do so. As a way of paying back, he asked the plaintiff to sell off the shares of MMMB in the open market. However, only a sum of RM6.6 million was recovered from the sale as the price of the MMMB shares had plummeted since the purchase. The plaintiff showed the defendant a statement of the losses suffered. The defendant agreed as to the losses and promised to pay him back. [7] It also turned out that in 2008, the defendant had persuaded the plaintiff to purchase two oil tankers from a company called Syarikat Kosmo Resources Sdn Bhd and to then resell the tankers to MMMB. The plan was to resurrect MMMB and for the plaintiff to be repaid his money. Two attempts were made to complete the purchase. On each occasion a deposit of RM1 million was paid by the plaintiff at the defendant's request. The sale did not go through and on each occasion the deposits were forfeited. [8] By this time, the plaintiff claimed that he was owed a total of RM10 million by the defendant. On 17 May 2009, the defendant invited the plaintiff to come over to his house. A mutual friend, P. Deveindren ("PW6") was also invited. It appeared that the defendant had prepared a document entitled "Personal Loan". The plaintiff claimed that this document was then signed by him and the defendant and witnessed by PW6. [9] This "Personal Loan" document was dated 17 May 2009. It was a simple five-paragraph document, the relevant parts of which are reproduced below: PERSONAL LOAN I, Ramesh Rajaratnam (NRIC no. 640613-10-7413) of no. 25 Lengkuk Setiabistari, Damansara Heights, 50490 Kuala Lumpur herewith declare that I have borrowed and acknowledged receipt of a sum value of RM10,000,000 (Ringgit Malaysia Ten Million only) from Ravindran Sivasubramaniam (NRIC no. 620304-10-6427) of no 30 Jalan Telawi 8, Bangsar Baru, 59100 Kuala Lumpur for my personal use. I understand that this friendly loan is repayable on demand and it has been granted to me at my request without any collateral being given nor any interest being paid or payable. I herewith undertake to repay the loan in full on demand and have no defence or dispute in any court of law in relation to any aspect of this loan. As this loan has been granted on a personal basis and trust I undertake to honour to repay this loan without dispute. On this day 17th May 2009 in Kuala Lumpur. [10] This document was then signed by the defendant and the plaintiff. PW6, who was present, signed the document as the witness. [11] Now, the defendant's case was quite straight-forward. He denied signing this document and claimed that it was fabricated. So, not surprisingly, the trial in the High court was very much focused on the issue of whether this "Personal Loan" document dated 17 May 2009 was indeed executed between the plaintiff and the defendant. Decision of the High Court [12] The learned Judge had to deal with a number of issues at the trial. The main issue, as was adverted to earlier, revolved around the execution of the "Personal Loan" document dated 17 may 2009. In this regard, the learned Judge came to the conclusion that the personal loan agreement was authentic and was executed by the plaintiff and the defendant and was witnessed by PW6. [13] In this context, the evidence was compelling as it was supported by the evidence of an expert document examiner (PW4) and by PW6 who had testified that he had signed the personal loan agreement as a witness. The learned Judge had also found the defendant to be less than candid when testifying as he was "constantly shifting the goal post". In the words of the learned Judge when describing the defendant: " [H]is demeanour was in contrast to the plaintiff, whose disposition was that of an honest man". [14] On the next issue of limitation, the learned Judge agreed that the "Personal Loan" agreement had fulfilled all the criteria of a promissory note as set out under s. 88(1) of the Bills of Exchange Act 1949. The learned Judge accepted that the plaintiff had made an oral demand on the defendant sometime in November 2009. The suit was filed on 28 October 2015 and so the defendant's contention that the claim was time-barred must fail. [15] The defendant also raised the issue of abuse of the court process. It turned out that the plaintiff has previously filed a suit against the defendant on 10 May 2010. Judgment in default was entered against the defendant. After the default judgment order was subsequently set aside, the plaintiff was ordered to serve the writ of summons and statement of claim. This was not done and the writ subsequently expired on 10 November 2010. The learned Judge was not impressed on the argument of abuse of the court process for reasons which we will come back to when dealing with our own analysis of this contention. [16] In the upshot, the learned Judge had found that the plaintiff had successfully proved his claim against the defendant. Judgment was then entered on the amount claimed with costs of RM50,000.00. The Instant Appeal [17] In the instant appeal, the defendant chose not to argue on the authenticity of the personal loan agreement. The only arguments raised were firstly, whether the learned Judge was right on the issue of the abuse of the court process and secondly, whether the learned Judge was right on the limitation argument. Our analysis and findings on these two issues were as follows. Abuse of the court process [18] Coming back to the narrative of the previous suit filed by the plaintiff, it was not disputed that the earlier suit was based on the same personal loan agreement. In that earlier suit, a default judgment was entered against the defendant. This was set aside by consent. The writ was then ordered to be served on the defendant. This was not done by the plaintiff. The writ then expired on 10 November 2010. An application for the renewal of the writ was dismissed by the court. [19] Before us, the defendant argued that if the law allowed a party to abandon a suit and then to refile it, there would not exist a structured form of justice. It was also argued that the earlier order was peremptory in nature and the refiling of the instant suit was an abuse of due process. [20] After careful consideration, we did not think this argument had any merit for two reasons. Firstly, we agreed with the learned Judge that the order to serve the writ in the earlier suit could not amount to an ultimatum or a peremptory order. In fact, the learned Judge, in the earlier suit, when refusing to grant the renewal of the writ had indicated in his reasons that "[T]he plaintiff's claim is not time-barred and the plaintiff is therefore not unfairly prejudiced by a failure to renew a writ, since the way is always open for a re-filing". [21] The law in this area, as we noted, is without controversy. The Federal Court in Pembinaan dan Pemaju Mahajiwa (Selangor) Sdn Bhd v ASM Development Sdn Bhd [2003] 4 MLJ 633 held that what amounts to an abuse of the process is a question of fact. After a consideration of the case authorities, the Federal Court held that failure to comply with a peremptory order may amount to a contumelious conduct which may constitute an abuse of the process. [22] We did not think in the present case that the order directing to re-serve the writ was a peremptory order. It was plain that due to the expiry of the writ, the plaintiff could not comply with the said order. We also did not think that the Federal Court case of Syed Omar Syed Mohamed v Perbadanan Nasional Berhad [2013] 1 MLRA 181 offered any assistance to the defendant. In that case, there was clearly an abuse of the process of the court by the plaintiff in filing the second suit as it was in breach of a peremptory order to give discovery in the first suit. The facts there were distinguishable from the instant case. In the circumstances, we agreed with the learned Judge that there was no abuse of the court's process in the present case. [23] The second reason is premised on the ground of estoppel. The defendant had prior to the trial filed an application dated 8 January 2016 to strike out the present claim on the grounds of limitation and abuse of process. By an order dated 7 March 2016, the High Court allowed the application to strike out the claim on both the grounds of limitation and abuse of process. However, this order was subsequently set aside by this court on 14 February 2017 when allowing the appeal by the plaintiff. It was therefore evident that the defendant was barred by estoppel from re-litigating the same issue of limitation and abuse of process. [24] In this context, we only need to refer to the oft-quoted decision of this court in Hartecon JV Sdn Bhd & Anor v Hartela Contractors Sdn Bhd [1996] 2 MLJ 57 where it was held that "once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened willy-nilly" (per Gopal Sri Ram JCA (as he then was) at p 66). What this means is that a decision of the court at one stage of the proceeding is binding at a later stage of the same proceeding. If a party wishes to be not so bound, then it must appeal to a higher court to get the result overturned failing which it has to live with the outcome. [25] For these two reasons, the ground of abuse of process must fail. The Limitation argument [26] In this regard, the defendant submitted that the learned Judge erred in fact and in law in deciding that the instant suit was filed within the limitation period. It was contended that the limitation period started from the date of the promissory note, that is, 17 May 2009. Since the present suit was filed only on 28 October 2015, it was time-barred and the court had no jurisdiction to entertain such a claim. [27] Now, it was common ground that the personal loan document was a promissory note as it complied with the elements provided under s. 88(1) of the Bills of Exchange Act 1949. However, the learned Judge took the view that time would commence from the date of the demand as it was a term in the personal loan agreement that the amount was due on demand. As the oral demand was made sometime in November 2009, it was held that the suit filed on 28 October 2015 was filed within time. [28] This question of when does a demand become a term of the contract was canvassed before the Federal Court in Sim Siok Eng v Kong Ming Bank Berhad [1980] 2 MLJ 21. It was held that the words "on demand" by themselves do not make a demand a term of the contract. Nevertheless, it will in the end come down to ascertaining the intention of the parties as to whether they intended to make the demand a term of the contract. [29] In the case of a promissory note, there is the old case of Norton v Ellam (1837) English Reports 829 where it was held that a promissory note payable on demand is a present debt and is payable without demand and the Statute of Limitations begins to run from the date of it. Parke B., in that case, was also of the view that where money is lent, limitation begins to run from the time of lending. [30] Now, of course, it is settled law following Nasri v Mesah [1970] 1 MLRA 363 and Tenaga Nasional Bhd v Kamarstone Sdn Bhd [2014] 1 MLRA 165 that a cause of action founded on contract accrues on the date of its breach, and in the case of a debt, the cause of action arises at the time when the debt could first have been recovered by action. [31] In the present case, the personal loan document was a little unusual in that the time for repayment was not stated. It was certainly not due immediately as at the date of the agreement as the parties would have contemplated some interval of time before repayment is to be made. The exact period was not revealed at the trial. There may not have been any definite period envisaged. It could have been when the defendant had the means to pay. [32] It would then be fair to assume then that parties had intended that liability to pay will only arise upon demand and not before. Since no repayment date was stated in the agreement, the circumstances were analogous to a guarantee given for a loan agreement. The obligation to pay is always there but the cause of action only arises after a demand is made. The learned Judge was therefore right to hold that the limitation period commenced when the demand was made some 6 months after the loan agreement was signed. [33] In a somewhat similar case, Tham Chin Choy v K Mohamed Ismail & Anor (1952) 18 MLJ 71, the facts were as follows. A promissory note was signed on 8 February 1948 but was not neither dated nor stamped. The date of 6 October 1948 was later inserted with the consent of the defendant. It was held that the period of limitation was extended to run from 6 October 1948. In that case, although the promissory note was payable on demand, it was not intended by the parties that it should be paid for a period of 6 months or so. [34] It can therefore be surmised that although generally the limitation period commences from the date of a promissory note, the parties can through agreement extend the date or evince an intention that the period should commence from the date of demand. [35] In any case, as was alluded to earlier, this issue of limitation had already been canvassed and decided in the striking out application filed prior to the trial. When this court by order dated 14 February 2017 allowed the appeal and set aside the order of the High Court, it was effectively decided that the suit was not time-barred and therefore ought not to be struck out. [36] In our judgment, relitigating the same issue at the trial was plainly an abuse of the court process. If the issue of limitation was allowed to be litigated again, it would then appear that this court had decided in vain as the party concerned did not consider itself to be bound by that decision. It would certainly undermine the twin requisites of certainty and finality which are essential to the proper functioning of the judicial system. [37] For all the above reasons, the argument on limitation cannot succeed. Conclusion [38] In the circumstances, and for the reasons stated, we were not persuaded that the High Court was plainly wrong in allowing the plaintiff's claim. The appeal was therefore dismissed and the order of the High Court was affirmed. We also ordered the defendant/appellant to pay the plaintiff/respondent a sum of RM10,000.00 as costs subject to the payment of allocator. Dated: 19 June 2020 Signed (HARMINDAR SINGH DHALIWAL) Judge Court of Appeal Malaysia Counsel: For the Appellant: Selva Balan (with him C Bala Sundram and R Suresh) (M/s R Suresh & Associates) For the Respondent: S Sivaneindiren (with him Joyce Pang) (M/s Cheah Teh & Su)