Ramesh Sivaraj A/l Rajasingham Chelliah v Sithamparanathan a/l Nadarajah (BA-12BNCvC-21-06/2023)

Remittances totalling RM275,000.00 had been made to the Defendant or at his request; and

The subsequent Agreement on the repayment is valid and binding. [4] The gist of the Defence is that the Defendant never received the RM275,000.00 allegedly borrowed and that he never signed the Agreement. According to the Defendant, someone had forged his signature on the Agreement. [5] The Defendant pleaded instead that the Plaintiff did remit RM220,000.00 to him in March 2018, but this was intended as a gratuitous gift of funds to assist the Defendant to make monthly salary payments to Dr. Vigna Raj A/L Sithamparanathan ( Dr. ). [6] According to the Defendant, Dr. Vigna needed help with employment due to a mental disorder which prevented him from practicing as a medical doctor. The Defendant employed him as Managing Director of an elder care business that he was setting up with Dr. Vigna called Metro Eldercare Sdn Bhd ( ). [7] MEC was incorporated on 9-8-2018 with three shareholders - the Defendant (300,000 shares), Ushadevi a/p Velayutham (150,000 shares) and Dr. Vigna (10,000 shares). The Defendant claimed that Dr. Vigna resigned on 31-7-2019 following various allegations of misconduct. [8] Dr. Vigna decided to start the elder care business and the Plaintiff provided funds to help his son, including funds in evidence which were transferred first to Dr. Vigna for use. The Defendant later suggested that the funds provided by the Plaintiff be collectively treated as a friendly loan and the Agreement was drawn up on that basis. [9] The Plaintiff, Defendant and Dr. Vigna all testified at the trial, and findings of fact based on her assessment of their credibility as witnesses and the consistency of their testimony with the contemporaneous documents in evidence. Analysis and Findings Remittances of Funds [10] The Plaintiff tendered evidence that funds were remitted to the Defendant comprising the total sum of RM275,000.00 which he says were the loans requested by the Defendant to finance the elder care business he was starting:

RM150,000.00 paid by Dr. Vigna to one Sonveer Kaur a/p

RM100,000.00 remitted by the Plaintiff to the Defendant as advances; and

RM25,000.00 remitted by Dr. Vigna to Nusa Graha Sdn Bhd. [11] The trial Judge found the evidence to be consistent with the RM150,000.00 was a loan advanced by Dr. Vigna to the Defendant as it was a cheque payment to one Sonveer Kaur a/p Dharambir Singh . [12] The RM150,000.00 was initially intended to be paid to Rakesh Bajaj a/l Gulshan Kumar Bajaj for the purchase of his nursing home services, but the original cheque failed to clear and a replacement cheque , Sonveer, on instructions because Rakesh was an undischarged bankrupt. This was corroborated by a WhatsApp conversation between the Defendant to Dr. Vigna on 19- 2-2018 to that effect. [13] The Defendant whilst denying any knowledge of the RM150,000.00 payment to Rakesh/Sonveer, merely said that this WhatsApp conversation with Dr. Vigna was unrelated. His evidence was contradicted by the WhatsApp message thread in which he was privy to the payment arrangement in question and evidence given by the Plaintiff that Rakesh was the De . No other explanation was offered. [14] As for the RM100,000.00 that the Defendant received, the payments were evidenced by:

Cheque Deposit Receipt dated 2-4-2018 for RM5,000.00

HSBC Amanah Application for Interbank GIRO dated 2-4- 2018 for RM45,000.00

Public Bank Borang Permohonan Kiriman Wang dated 26-4- 2018 for RM23,000.00

Citibank transfer dated 27-4-2018 for RM27,000.00 [15] The Defendant admitted that RM100,000.00 was advanced by the Plaintiff to the Defendant for his elder care business and for sustenance. As such, the pleaded Defence was inconsistent with the evidence adduced at the trial in that there was no evidence that RM220,000.00 was given to him by the Plaintiff to pay Dr. Vigna at MEC or indeed, that Dr. Vigna had a mental disorder and was given the job for that reason. [16] At the trial, the Defendant claimed that the Defence was erroneously pleaded by his former solicitors. However, the claim was not amended to correct the erroneous pleading and it is trite that parties are bound by their pleadings. [17] According to Dr. Vigna, Nusa Graha Sdn Bhd was initially the but it was sidelined after MEC was incorporated. The funds provided to it by the Plaintiff were used to the same end. [18] Ultimately, the trial Judge found that the Plaintiff had discharged his burden of proving that RM250,000.00 had been remitted to the Defendant or on his instructions. concerned about the money which the Defendant said will be repaid in the next 2 months. There was no effective r . [19] Based on the material reviewed by this Court in the records of appeal, there were no grounds to disturb the above findings of fact. As indicated from the outset, the above findings turned on the credibility of the witnesses and the consistency of their testimonies with the available contemporaneous documentary evidence. [20] The key documentary evidence in the case was of course the Agreement itself. As mentioned, t Defendant who suggested that the sum of RM275,000.00 be treated as a friendly loan from the Plaintiff to be repaid on the stated terms. In other words, the transactions as detailed above were consolidated in the Agreement. [21] It is noted that the trial Judge was unpersuaded that the sum RM25,000.00 paid to Nusa Graha Sdn Bhd was connected to the Defendant. This finding is at odds with what would be tantamount to an admission that the sum is part of the RM275,000.00 loan due to be repaid according to the terms of the Agreement. However, there is no cross-appeal against that decision. Authenticity of the Agreement [22] The Defendant relied on sections 67 and 73 of the Evidence Act 1950 ) to argue that the burden of calling forensic experts to prove his signature on the Agreement was on the Plaintiff. Section 67 of the EA handwriting and section 73 of the EA provides that the Court may form its own opinion by a comparison of signatures. [23] The above provisions do not deal with the burden of proof, which remains governed by sections 101-103 of the EA:

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 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 proof of that fact shall lie on any particular person. [24] The burden of proof is to establish the claim rests throughout the trial on the Plaintiff. However, the onus of proof relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. [25] According to sections 102 and 103 of the EA, if the party with whom the onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail per Salleh Abas FCJ (later LP) in International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86. [26] In this case, the trial Judge found that the Plaintiff had discharged his initial onus by producing the original signed Agreement in support of his claim and evidence of its preparation and execution. Dr. Vigna testified through WhatsApp texts and messages. [27] In evidence was a WhatsApp message on 1-10-2018 from Dr. Vigna to the Defendant in which one of the main work items discussed between them was identified as will If no repayment of the said sum was due, the Defendant should have said so Ok [28] Consistent with the above, there is an extract of a further WhatsApp conversation before 5-10-2018 about the Agreement and a meeting to be held. Both the Plaintiff and Dr. Vigna testified that the Agreement was then mother and children were present when this all transpired. According to the Plaintiff, he and the Defendant each kept a signed copy on 5-10-2018. [29] While it is competent for the trial Judge to have compared the signatures of the Defendant on the Agreement and against other signatures of the Defendant in evidence under section 73 of the EA (Bank Kerjasama Rakyat Malaysia Sdn Bhd v Chong Voon Chung [2021] 1 LNS 250), the Federal Court held in Syed Abu Bakar Ahmad v Public Prosecutor [1984] 1 CLJ Rep 368 that: principle that while it is true that a Judge who sits alone is entitled to weigh all the evidence, to put his own magnifying glass to determine the probabilities so to speak and form his own opinion or judgment, it would be erroneous for him to form a conclusion on a matter which could only be properly concluded with the aid of expert evidence. [30] Thus, the onus of proof was on the Defendant to lead evidence under section 45 of the EA to conclusively prove that the signature is forged. (Omega Securities Sdn Bhd v Kok Fook Loy [2010] 9 MLJ 224; Yoong Sze Fatt v Pengkalen Securities Sdn Bhd [2010] 1 MLJ 85, EON Bank Bhd v Hotel Flamingo & another case [2005] 1 MLJ 712). [31] The Defendant also acknowledged this as he applied to send the original Agreement to the Chemist Department for forensic handwriting analysis on 21-12-2021. The trial Judge dismissed the application on 24- 12-2021 as a delay tactic as the application was filed by the Defendant after trial dates had been fixed and on the first day of trial when the suit was filed in January 2020. [32] It was entirely within the discretionary power of the trial Judge to dismiss the application made by the Defendant at the eleventh hour. It Produce Documents Referred to in Pleadings pursuant to Order 24 Rule 10 of the Rules of Court on 18-5-2020. The Defendant and his former 21-5-2020 to inspect the original Agreement, but made no application then. [33] The Defendant only sought to prove that the Agreement was not authentic through the following facts that the Defendant complained were not considered by the trial Judge when the onus was shifted to the Defendant to prove the alleged forgery:

He did not receive drafts of the Agreement by email as Dr. Vigna claimed was sent to the Defendant for his approval on or about 4-10-2018; and

He had received a copy of the signed Agreement via email from a lawyer, Rohan Arasoo, on 6-11-2019, but there was no reply to his e-mail reply on 7-11-2019 claiming forgery The Defendant argued that an adverse inference should have been drawn against the Plaintiff for not calling Rohan Arasoo to testify at the trial. [34] The Plaintiff and Dr. Vigna were cross-examined on evidence of drafts of the Agreement forwarded to the Defendant before 5-10-2018 for his review. Dr. Vigna testified that several drafts were e-mailed and there were numerous WhatsApps between himself and Defendant as he was effectively working for the Defendant. However, only the WhatsApp on 1- 10-2018 and the final signed copy of the Agreement were produced on this point. Dr. Vigna testified that he was not following up on this case as the Plaintiff. [35] Rohan Arasoo had apparently discharged himself because of his acquaintance with the Defendant. According to the Plaintiff, Rohan Arasoo was a common friend and when payments were not forthcoming and the relationship was souring, it was suggested that Rohan Arasoo try and mediate and settle the dispute for them. That would have explained why there was no reply to the email of 7-11-2019 from the Defendant. [36] In any case, t argument that Rohan Arasoo should have been called to testify on the authenticity of the Agreement. There is no evidence to suggest that Rohan Arasoo was in any way involved in the preparation of the Agreement. It is trite that section 114(g) of the EA can only be invoked when there is suppression of material evidence or failure to call an important and material witness to the case. In this case, there is no reason for the trial Judge to draw any adverse inference. [37] Ultimately, the original Agreement was produced at the trial and its copy in evidence was marked as P1 without objection from counsel for the Defendant. After hearing the testimony of the witnesses and having the audio-visual benefit in assessing their credibility, the trial Judge was satisfied that the Agreement was authentic for the reasons set out in her grounds of Judgment. Conclusions [38] The trial Judge correctly found that the Plaintiff had discharged his burden of proof, and that the onus had shifted to the Defendant to prove his alternative version of events and the alleged forgery of his signature. This, he failed to do with any persuasive evidence. Accordingly, there was no reason to justify any appellate interference with the decision of the trial Judge. Bertarikh : 7 Februari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu : Maurice Ernest Scully, Messrs M Scully Untuk Responden: Sreekanth Pillai (with Vasanthi A/P Ramadass), The Law