Ramlah Binti Abd Aziz v ECO COMMERCIAL VEHICLES SDN. BHD. (WA-22NCvC-206-04/2020)

The Plaintiff’s case began in 2015 when the Plaintiff and her late husband sought to raise funds in light of cash flow constraints faced by the Plaintiff and/or the Plaintiff’s late husband. 15/08/2025 12:15:45

Through one Subramaniam A/L Paramasivam (“Subramaniam”), a partner in the legal firm of Messrs Adlina, Subra Siti & Partners, the Plaintiff and the Plaintiff’s late husband were introduced to one Eddie Thoo and Lau Chan Seng, a director and shareholder of the Defendant and Luxury Merchant Sdn Bhd (hereinafter referred to as “LMSB”) respectively.

The Plaintiff and the Defendant later agreed to enter into a Sale and Purchase Agreement dated 15.10.2015 (hereinafter referred to as the “SPA”) wherein the Plaintiff had agreed to sell a property held under Geran 3163, Lot 28646, Mukim Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur bearing postal address No. 127, Jalan Ma’arof, Bangsar Park, 50100 Kuala Lumpur (hereinafter referred to as “the said Property”) to the Defendant for the Purchase Price of RM8,800,000.00 (hereinafter referred to as “Full Purchase Price”) with the following additional terms:

The Plaintiff retains the rights to be a tenant, lessee and the right to re-purchase the said Property whereby the Plaintiff shall be entitled to re-purchase the said Property within three years, or such other period mutually agreed by parties from the date of the transfer with an annual appreciation of 4% per annum. The projected sale prices had been set out in Clause 6.1.

Both parties also agreed to execute a simultaneous Tenancy Agreement of the said Property for the monthly rental of RM36,666.66 only per month, the Defendant being the Landlord and the Plaintiff being the Tenant. (Per Clause 2.1 and Clause 6.1)

In subsequent to this, the Defendant shall pay RM2,640,000.000 (hereinafter referred to as “the Deposit Sum”) to the Plaintiff being the deposit sum, upon the execution of the SPA and the remaining RM6,160,000.00 (hereinafter referred to as “Balance Purchase Price”) shall be paid or caused to be paid within two (2) months from the date of completion of the SPA with the option to extend.

The aforementioned transaction of the SPA was then carried out by the Defendant’s solicitors, Messrs Adlina, Subra Siti & Partners. The Dispute 5. The main issue in dispute in the instant case is on the payment of the Full Purchase Price of the said Property.

The Plaintiff alleged that the Defendant had failed to make any payments to the Plaintiff in respect of the said transaction. Despite the non-payments, the transaction of the SPA had been fully executed and transferred by the Defendant. In fact, a Hong Leong Bank Draft and a Hong Leong Bank Cheque (hereinafter referred to as “the said Two Payments”) had been returned on 20.10.2015 and 30.10.2015 respectively to the Defendant’s inter-related company, LMSB at Lau San Cheng’s request.

The Defendant then contended that the Plaintiff has failed to prove that the Defendant had authorized the Plaintiff to refund the said Two Payments to LMSB. The Defendant further contended that there is no evidence to prove that Lau San Cheng had authorized the refund of the said Two Payments.

Meanwhile, in the counterclaim, the Defendant sought damages against the Plaintiff for an alleged misrepresentation on the category of land of the said Property which had purportedly caused a loss of profit to the Defendant.

The Plaintiff argued that the Plaintiff had never misrepresented any facts to the Defendant. In fact, the Defendant could have visited the said Property and be aware that the said Property is located at a commercial area.

The Defendant also argued that the Tenancy Agreement dated 15.09.2015 (hereinafter refer to as “Tenancy Agreement”) entered between the Defendant, being the Landlord and the Plaintiff, being the Tenant, had demonstrated the Defendant as the proprietor of the said Property. The Plaintiff’s Case 11. The following are the Plaintiffs’ claims:

(i). The Plaintiff alleges that to date, the Plaintiff had never received the Deposit Sum and the Balance Purchase Price despite having signed all the necessary documents related to the SPA;

(ii). There is no record of the receipt of the Deposit Sum being paid to the Plaintiff;

(iii). The payments of RM2,640,000.00 and RM1,760,000.00 that were allegedly received from the Defendant vide Hong Leong Bank Draft and Hong Leong Bank Cheque had been returned on 20.10.2015 and 30.10.2015 to the Defendant’s inter-related company known as LMSB at Lau Chan Seng’s request;

(iv). There is no record of receipt that the final payment of RM1,760,000.00 was allegedly paid by way of cash;

(v). The Plaintiff only signed the acknowledgement letter dated 25.11.2015(hereinafter referred to as ‘the Acknowledgement Letter’) as the Plaintiff was made to understand that the acknowledgement letter will only have its full effect after the Plaintiff had received the Full Purchase Price from the

(vi). The Plaintiff also submitted that the Acknowledgement Letter was not prepared by the Plaintiff but indeed was prepared by the Defendant’s solicitors in which the Defendant’s solicitors were never called as witnesses throughout this whole trial; and

(vii). In furtherance to this, the Plaintiff argued that the signing of the Acknowledgement Letter cannot be taken as a conclusive proof that the Full Purchase Price has been paid.

In the meantime, the Plaintiff prays the following:

(i). A declaratory relief that the SPA is null and void and terminated following the Defendant’s failure to pay the purchase price for the said Property;

(ii). A declaratory relief that the transfer of the said Property to the Defendant pursuant to the SPA is null and void;

(iii). A restitution order for the Defendant to return and transfer the said Property to the Plaintiff together with all the relevant documents and instruments as well as monies and costs expended by the Plaintiff; and

(iv). A restitution order wherein the Defendant to return all the monthly rental payments expended by the Plaintiff in so far as the Tenancy Agreement is concerned.

The Plaintiff contended that the SPA is not an outright sale, which can be seen as per Clause 2.1 and 6 of the SPA, as the SPA came with several conditions and/or restrictions.

The Plaintiff had relied on the decision of the case Datuk Jagindar Singh & Ors v. Tara Rajaratnam [1983] 2 MLJ 196, a Federal Court case that held as follows: “Outright Sale or Security. The contention of the appellants is that the agreement was an outright sale of the property with the option for Tara to repurchase within a year from the date of the execution of the agreement, …. On the other hand, the respondent contended that the agreement was a security agreement whereby the property would be transferred to Suppiah on payment of the two sums mentioned earlier subject to the two undertakings given by Suppiah in the form of a manuscript. The two undertakings were (i) that Suppiah would not sell the property to anyone for one year without the consent of Tara; and (ii) that he would transfer the property back to Tara on her repaying the $220,000.00 within one year… Several factors favour the contention of the respondent. The insertion of the manuscript was a clear indication that it was meant to be a security agreement rather than an outright sale. It is not unlike the Malay customary transaction known as jual janji. In such a transaction the borrower transfers his land to the lender on payment who takes possession of the land and may make any profit out of the land as a sort of interest payment. The borrower is entitled to have the land transferred back to him on paying the debt. However, when a period for repayment of the loan is fixed then the default to pay will convert the original arrangement into an absolute sale, jual putus. The learned Judge had no doubt at all that the appellants knew that Tara and Devan intended the agreement to be a security agreement by reason of the manuscript. He also pointed out that Tara had an earlier experience of such transfer and re-transfer of the property. Devan transferred the property to one H.L. Tan for $10,200.00. Later, H.L. Tan transferred it back to Tara for $10,700.00. The extra was meant to be for interest. Tara was therefore familiar with such type of transaction…”.

In replying to the Defendant’s allegation of misrepresentation, the Plaintiff argued that the existence of the car showroom, Aiman Motor, is a fact that was never concealed by the Plaintiff since the beginning. A mere site visit, as the Plaintiff would reveal that the said Property is located in a commercial zone.

The Plaintiff further submitted that this fact had also been disclosed in the Tenancy Agreement entered by both parties under ‘Permitted Purpose’ of the First Schedule. The Defendant’s Case 17. The Defendant’s defence is premised on the basis that he Defendant had paid the Full Purchase Price in the following manner:

A sum of RM2,640,000.00 was paid to the Plaintiff in cash at the time of execution of the SPA;

On 19.10.2015, a further sum of RM2,640,000.00 was paid to the Plaintiff via Hong Leong Bank’s draft no. 820157;

On 27.10.2015, a sum of RM1,760,000.00 was paid via Hong Leong Bank Cheque no. 000006 to the Plaintiff; and

On 16.11.2015, Defendant claimed a sum of RM1,760,000.00 was paid in cash to the Plaintiff.

The Defendant further argued that the Acknowledgement Letter dated 25.11.2015 was executed by Plaintiff herself showing clearly that the Full Purchase Price had indeed been paid by the Defendant to the Plaintiff. The Acknowledgement Letter was not retracted or disputed by the Plaintiff. Reliance is made to the case of Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd & Ors [1994]

The Defendant also argued that the Plaintiff has redeemed the said Property from her financier (CIMB Bank) to enable the Property to be transferred to the Defendant. The Plaintiff who was in financial constraint could not have redeemed the said Property from the financier without the Defendant’s payments. For this reason, the said Property was then duly transferred to the Defendant on 20.01.2016.

The Defendant had sent a letter dated 18.06.2019 to the Plaintiff as a reminder to exercise re-purchase option of the said Property at the end of the three years period as per the SPA but the Plaintiff offered no reply to the Defendant.

The Plaintiff, as the tenant, is estopped from denying the Defendant’s proprietary right on the said Property. It was a fact not in dispute that starting from 20.10.2015 up to 29.12.2016, the Plaintiff had continuously paid the Defendant, the landlord, a monthly rental of RM36,666.66 for its occupying of the said Property.

The Defendant relied on the case of Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 where the Federal Court held that: “[6] A Court may permit a litigant to argue that his opponent is estopped from raising a particular contention if it is in the interest of justice to do so. It is really a matter of the particular Judge who, when deciding where the justice of the case lies, must have due regard to all the circumstances of the case.”.

In addition to this, the first private caveat lodged by the Plaintiff in August 2018 has never revealed any issue of alleged non-payment by the Defendant.

The Defendant further averred that the Plaintiff’s sworn affidavit dated 02.11.2018 (“Affidavit”) in reply to the Defendant’s Writ of Distress was silent on the issue of the alleged non-payment. It is also undisputed that the Plaintiff had then surrendered the vacant possession of the said Property in consequence of the Defendant’s Writ of Distress action.

On top of this, the Defendant also argued that the Defendant is not bound by the alleged refunds of the said Two Payments to Luxury Merchant Sdn. Bhd on the following reasons:

(i). The Plaintiff has failed to prove that the Defendant has authorized the Plaintiff to make refund of the said Two

(ii). There is no evidence to prove that Lau Chan Seng was authorized by the Defendant to request the Plaintiff to refund the said Two Payments to LMSB;

(iii). There is no evidence tendered by the Plaintiff that Lau Chan Seng has requested the Plaintiff to refund the said Two Payments to LMSB;

(iv). The Defendant did not have any knowledge pertaining to the alleged refund of the said Two Payments by the Plaintiff to LMSB;

(v). There is no evidence tendered by the Plaintiff to prove any arrangement between the Plaintiff and the Defendant in relation to the alleged refund of the purchase price to the

(vi). The Defendant and LMSB are two separate entities, and the Plaintiff did not file any legal action and/or name LMSB as party in the present suit in relation to the alleged refund of the purchase price.

The Defendant then asserted that the Plaintiff’s action is a mere afterthought for failing to issue a termination notice of the SPA when the Defendant had failed and/or neglected and/or refused to pay the Balance Purchase Price. Reference was made to the case of Chin Kim & Anor v. Loh Boon Siew [1970] MLJ 197 where Ong CJ held as follows (at p.198-199): “In this case one should have thought that the purchaser would not hesitate to make his position clear one way or the other. Yet he did nothing of the sort. If he disagreed that the vendors were entitled to repudiate, he had only to say so. Had he been at all desirous of completing the purchase - even without vacant possession - all he had to do was perfectly simple, namely, give notice to the vendors of his intention so to do and tender the whole purchase price. What else were the vendors reasonably to assume by reason of his complete silence except that he acquiesced in their tearing up the agreement? What was the proper inference the Court should have drawn from his conduct? Should not be, as a reasonable man, have taken action within a reasonable time after a breach of contract by the other party, unless he in fact acquiesced in its rescission? In my opinion a lapse of over four year - between 8 June 1962 and 29 August 1966 - is not even within measurable distance of the reasonable time he needed to make up his mind. His conduct therefore compels me to conclude that he accepted the rescission. Having so agreed I cannot see how he is entitled even to damages, much less specific performance.”. [Emphasis added]

On the Defendant’s counterclaim, the Defendant submitted that the Plaintiff had misrepresented the Defendant that the said Property can be used for commercial. At the time, the Defendant was informed by the Plaintiff that the existing tenant by the name of Aiman Motor Sdn. Bhd. was operating at the said Property for the purpose of commercial activity for many years and would continue to running its business at the said Property, if the Defendant bought the said Property.

When the Defendant filed an action for Writ of Distress against the Plaintiff for default of the tenancy, the Plaintiff challenged the Writ of Distress claiming that the use of the said Property was contrary to the category of land used imposed on the title.

The Defendant claimed that there is element of mala fide in order to induce the Defendant to enter into the SPA and the Tenancy Agreement hence had caused loss of profit to the Defendant. Findings and Decision of the Court I. Whether the Full Purchase Price had been settled 30. The cause of action of the Plaintiff is the failure of the Defendant to pay the purchase price of the said Property. This was vehemently denied by the Defendant where the Defendant claimed that there was no default in the purchase price, but to the contrary, it was fully settled in four payments in 2015.

On my examination of the testimonies of witnesses and contemporaneous documents, I find that the Defendant has held out a stronger case as compared to the Plaintiff.

Throughout the proceedings, the Plaintiff alleged that the Defendant had never made any payment of the purchase price to the Plaintiff for the said Property. The Plaintiff made further averments that the payments Defendant allegedly had made were returned to the Defendant’s sister company LMSB at Lau Chan Seng’s request. Hence, in the Plaintiff’s point of view, no payment has ever been made.

However, the Defendant in their defence, raised the existence of the Acknowledgement Letter where it explicitly mentioned that the whole sum of RM8,800,000.00 had been paid. It is noted that this document was converted to Part B during PW1’s testimony and plays a crucial role in the consideration of this Case.

The Plaintiff, to counter the Acknowledgement Letter, made bare denials on the Acknowledgement Letter and the receipt of the Full Purchase Price: … Okay, I am referring to part C bundle, page

This particular document has been converted to part B My Lord. Datin, are you aware of this letter? Yes I'm aware of this letter, because I signed the letter. My question is this, did you prepare this letter? No. [refer Encl. 165, page 33 – 34, lines 17 – 03] I rephrase my question. I'm saying that you could use the sealant terms of the agreement SPA in the, in your answer, but I'm putting to you a question that, my instruction is, the defendant has settled the balance purchased price between your timeline according to the agreement. PW1 No Datin, again, bundle B, I refer to the clause 3.1 page 14 of the bundle B. Clause 3.11 Datin. I just read to you. Upon execution of this agreement, the purchaser shall pay to the defendant the sum of RM2,640,000 only, the deposit sum, the receipt whereof the vendor hereby acknowledged. Shall account as part payment of the purchased price. Now, Datin, I put it to you, based on this clause, you have confirmed received the deposit payment of 2.64, from the defendant? Yang Arif, I've signed the SPA but I didn’t received the money. [refer Encl. 165, page 38, lines 7 – 20] Whether according to this clause, 3.11, in the agreement, you confirmed that you have received the deposit sum. Yes based on the what's stated there. So it is a yes. Thank you. So I put it to you that the deposit sum was paid, somewhere on 15/9/2015, upon signing the SPA? But I didn’t receive it. [refer Encl. 165, page 39, lines 5 – 11]

This pattern is consistent throughout the whole line of questioning concerning the payment of the Full Purchase Price. There were only bare denials from the Plaintiff. During re-examination, there was no attempt to explain this. It is my observation that this can be attributed to the fact that the Plaintiff does not have personal knowledge of the transactions in the SPA: So based on your earlier confirmation to the court, you're saying that you're signing this agreement upon what your husband request to sign. I put it to you Datin, you have no personal knowledge of this total sales and purchase transaction? PW1 Yes [refer Encl. 165, page 43, lines 1 – 5]

On the flip side, the Defendant produced the following documents to substantiate their claim for each payment for the settlement of the Full Purchase Price. The following table shows the payments, and the evidence brought forward: Date Payment Amount Evidence Reference 15.09.2015 Deposit Sum RM2,640,000.00 Clause 3.1.1 of the SPA Encl. 136, p. 14 09.10.2015 Second Payment RM2,640,000.00 Hong Leong Bank cheque no. 820157 Encl. 136, p. 11 27.10.2015 Third Payment RM1,760,000.00 Hong Leong Bank cheque no. 000006 Encl. 136, p. 25

16.11.2015 Final Payment RM1,760,000.00 Current account statement dated 05.12.2015 Encl. 153, p. 1

From the table above, it can be seen that the Defendant had brought substantive documentary evidence to assert their claim that Full Purchase Price has indeed been settled. This was cemented through the Acknowledgement Letter where the Plaintiff herself signed off to confirm that she had received the whole sum of the Full Purchase Price (refer Encl. 137, page 26).

Despite the Defendant's submission that the Acknowledgement Letter was not ‘retracted or disputed by the Plaintiff’, she did attempt to put up her case. She testified that the letter was prepared by the Defendant’s solicitors, and as none of solicitors were called to give evidence, it was submitted that adverse inference should be drawn against the Defendant. However, this does not change the fact the Plaintiff signed the Acknowledgement Letter, and it was admitted during trial: … Okay, I am referring to part C bundle, page 26. This particular document has been converted to part B My Lord. Datin, are you aware of this letter? PWS1 Yes I'm aware of this letter, because I signed the letter. [refer Encl. 165, page 33, lines 17 – 22]

Further, the Plaintiff submitted from multiple angles in an attempt to disprove that the final payment was made at all. In particular, the Plaintiff contended that the fact that the current account statement was filed at the last minute, approximately 2 weeks before the Trial, is a cause for suspicion on the credibility of the evidence. It was further submitted that there are no corroborating factors to show that the payment was made, and the bank statement is merely conjecture.

In consideration of the evidence brought forward by both parties, I am of the view that the Plaintiff had failed to establish on balance of probabilities that the Defendant had defaulted and failed to settle the Full Purchase Price.

It is trite law that the burden to prove the existence of any fact, it is on the party that alleges it. For ease of reference, section 101 of the Evidence Act 1950 is reproduced below:

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.

The burden of proof as to a particular fact is provided by section 103 of the Evidence Act 1950: 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.

The effect of these provisions can be discerned in the Court of Appeal judgment by Siti Norma Yaakob JCA (as her Ladyship then was) in the case of Juahir Bin Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 at page 9, (c) – (d): “He who alleges must prove such allegation and the onus is on the appellant to do so. See s. 103 of the Evidence Act, 1950. Thus it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and testify as to what he had uttered as firstly the respondent never raised such an allegation and secondly has denied even making one. For this very reason the adverse inference under s. 114(g) of the Evidence Act, 1950 relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under s. 114(g) is invoked against the appellant.”. [Emphasis added]

In the case of Juahir bin Sadikon, the applicant was unable to secure a key witness to prove his allegation and, thus the lack of a corroborating evidence does not shift the burden of proof to the defendant. The Court of Appeal went further to emphasise that the obligation rests and remains with the applicant.

The judgment is relevant to the discussion of this Case. In this Case, there is one key witness that neither party had called: the solicitor for the Defendant in the execution of the SPA and confirming receipt of the Full Purchase Price, or Subramaniam. The submissions of both parties played a tug of war to lay the onus of calling the witness on the other. However, the principle in Juahir bin Sadikon is crystal clear: the burden remains on the Plaintiff to call the witness and establish that the Full Purchase Price was not and has not been settled by the Defendant.

Instead, the Plaintiff’s case is premised on the bare denials of the Plaintiff and the Plaintiff alone. The Plaintiff submitted on multiple issues to supplement the denial: the credibility of the Defendant witnesses, the return of the Deposit Sum to LMSB, the veracity and circumstances of the production of the Defendant’s current account statement. However, there was never further corroborating evidence to support the bare denial.

In the face of disharmony between oral evidence and documentary evidence, there is a clear guideline within the law that a heavier weightage ought to be accorded to the documentary evidence. The judgment of Lim Chong Fong JC (as his Lordship then was) in Mohd Ridzwan Mohd Sidek & Anor v. Hong Leong Bank Bhd [2014] 8 CLJ 83 at paragraph 39 is helpful to illustrate this: “[39] In gist, the burden always lies on the party that asserts. In the discharge of that burden, the acceptability or otherwise of the factual version proffered is dependent on the veracity of the oral testimony of witnesses and the contemporaneous documentary evidence adduced. The oral testimony should be harmonious with the documentary evidence but if they irreconcilably conflict, normally a heavier weightage is accorded to the documentary proof. All available evidence must be critically examined. The ultimate acceptable factual picture should be like a completed jigsaw puzzle correctly fitted with all its matching constituent pieces of evidence.”. [Emphasis added]

In our present case, the nuances as claimed by the Plaintiff—that the SPA being a means to raise funds and having simultaneously executed a tenancy agreement as opposed to an outright sale of the Property—is not relevant to the discussion of the settlement of the Full Purchase Price. It is a straightforward evidential burden to show that the Plaintiff had never received the Full Purchase Price. The effectiveness of the Plaintiff’s bare denials is akin to a bug flying towards a brick wall in the face of the documentary evidence tendered by the Defendant.

I have critically examined that evidence by the Defendant and there is no reason to suspect its veracity. The nail on the proverbial coffin was the Acknowledgement Letter when the Plaintiff herself acknowledged receiving of the Full Purchase Price. To disprove this, the testimony of the solicitor is crucial. I am unable to consider the Plaintiff’s denial when there was every opportunity to call the solicitor who witnessed the Acknowledgement Letter, but the Plaintiff did not do so. Her refusal and failure to call the solicitor has caused the invoke of adverse inference against her.

For the above reasons, on the balance of probabilities, the Plaintiff has failed to discharge her burden of proof. Therefore, the Plaintiff’s claim for termination and nullity of the SPA, and other reliefs to transfer the said Property and restitution collapse as there is no cause for termination of the SPA by default. II. Whether there is misrepresentation by the Plaintiff to the Defendant on the technicalities of the Property 51. The Defendant’s claim for misrepresentation is premised on the alleged representations of the Plaintiff that an existing tenant was operating at the said Property for commercial purposes, and the right to receive the rental of RM36,666.66 per month would be transferred to the Defendant for 3 years.

This, according to the Defendant, was the ground of inducement for the Defendant to enter into the SPA with the Plaintiff. However, the Defendant now cries foul when the Tenancy Agreement was voided for illegality by the Sessions Court for being used against the terms of usage in the said Property’s title. Hence, the Defendant claims to have suffered damages and claims to have loss of the rentals.

The Plaintiff’s defence is that there was no misrepresentation, but a fact in itself which could be proven by a site visit. The Plaintiff submitted that this fact was acknowledged by, and the existing tenant was sighted by DW2 during cross examination: Was there a car showroom by Aiman Motor at that point in time? Yes, she told me that the showroom was there. No, no. My question is, you’ve asked and she said there was Aiman’s showroom. My question is, was there Aiman Motor Showroom at that point of time? This is what she told me there was a showroom. So, you don’t know whether there was a showroom or no showroom, you personally don’t know? At that time, I do not know. So, when you’ve got to know there was a showroom? After the discussion I went to the property to look together with my cousin brother Lau Siau Kong. So, you went there with Lau Siau Kwong, Then I saw that in fact it is business area and there is showroom there. That is what I want to confirm. Datin Ramlah informed you that particular property being used for a car showroom and then you went with cousin brother there and you’re confirmed there was a car showroom. Correct? Yes. [refer Encl. 165, p. 184, lines 16 – 21, p. 185, lines 1 – 17]

The Plaintiff further submitted that this arrangement must be taken cognizance, specifically the car showroom business, in the form of a provision in the Tenancy Agreement under Permitted Purpose of the First Schedule which reads “Car Showroom purposes only”. Thus, it is a non-starter.

Several other submissions were forwarded by the Defendant. One main point was that the resistance of the Plaintiff during the Writ of Distress proceedings, and the Plaintiff’s subsequent triumph by claiming that the land usage terms were incompatible with commercial purposes shows mala fide.

On the counterclaim, I am agreeable with the Plaintiff’s contentions. The Defendant’s counterclaim falls flat in a manner similar to the Plaintiff's claim in the main suit.

The Defendant had failed to show any oral evidence or documentary evidence to show the Plaintiff’s claim was a misrepresentation. The alleged form of misrepresentation itself was proven to be an actual fact confirmed by DW2 himself.

To my mind, the usage of the said Property for commercial purposes is solely an arrangement between the parties. This can be seen on the Tenancy Agreement itself where it was agreed that the said Property would be use for the existing tenant’s car showroom.

The fact that the land usage clause on the title does not permitting commercial use was readily available to both parties. It is the onus of the Defendant to perform due diligence on the legality of the Tenancy Agreement and on the land usage and restrictions. Therefore, it cannot be gainsaid that there was any form of inducement by the Plaintiff to the Defendant.

For the above reasons, the Defendant’s counterclaim is dismissed. Conclusion 61. In a nutshell, the Plaintiff’s claim against the Defendant had failed due the following reasons:

(i). On the balance of probabilities, the Plaintiff failed to satisfy the burden of proof to show that the Defendant had not settled the Full Purchase Price.

(ii). The Plaintiff’s unsubstantiated and uncorroborated bare denials are unable to disprove the documentary evidence provided by the Defendant to show settlement of the Full Purchase Price.

(iii). Therefore, the Plaintiff’s cause of action collapses, and therefore any other claims ancillary to the claim that the SPA is null and void are no longer relevant.

Likewise, the Defendant’s counterclaim against the Plaintiff had failed due to the following:

(i). The Defendant had failed to prove any misrepresentation by the Plaintiff.

(ii). The alleged misrepresentation was admitted to be a fact and not a misrepresentation by the Defendant.

(iii). The arrangements in the Tenancy Agreement for commercial purposes was an exclusive matter between the parties.

For the above reasons, the Plaintiff’s claim is wholly dismissed. Additionally, I allow the Defendant’s counterclaim under sub-paragraphs 52(g), (h), (i), and (j) of the Statement of Defence namely :- i) An Order that the Private Caveat entered by Ramlah Binti Abd Aziz (No. K/P:- 591205-01-5730) via Presentation No. PDB16796/2019 which has been registered on the entire Property held under registered title Grant No. 3163, Lot 28646, Mukim Kuala Lumpur, Daerah Kuala Lumpur, Federal Territory ("said Property") be cancelled by the Registrar of Titles of the Federal Territory of Kuala Lumpur within seven

days from the date of this Order; ii) An Order that the Plaintiff is prohibited from entering another private caveat on the said Property based on the same reasons; iii) An Order that any further private caveat entered by the Plaintiff and/or the Plaintiff's agents on the said Property be cancelled under Section 329 of the National Land Code 1965; and iv) An Order that the Deputy Registrar / Senior Assistant Registrar assess damages and/or compensation to be paid to the Defendant as a result of the Plaintiff entering a private caveat on the said Property.

I further award that the cost of RM30,000.00 in favour of the Defendant. Dated: 14th August, 2025 ---------------------------------------------------------------- DR. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT MALAYA KUALA LUMPUR For The Plaintiff : S. Ravichandran Messrs. S. Ravichandran & Anuar Advocates & Solicitors For The Defendant : Sim Kok Yew and Tan Yong Koon Messrs. Chambers Of Koon Advocates & Solicitors Table of Authorities Cases Datuk Jagindar Singh & Ors v. Tara Rajaratnam [1983] 2 MLJ 196 Esso Malaysia Bhd v Hills Agency (M) Sdn Bhd & Ors [1994] 1 MLJ 740 Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Merchant Bank Berhad [1995] 4 CLJ 283 Chin Kim & Anor v. Loh Boon Siew [1970] MLJ 197 Juahir Bin Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 Mohd Ridzwan Mohd Sidek & Anor v. Hong Leong Bank Bhd [2014]