Ravindhran a/l Kutty Krishnan (No. KP: 720229-10-5309) v Pro Tech Interior Design & Construction Sdn Bhd (No. Syarikat: 901184-V) (B-02(NCVC)(W)-1704-08/2017)

This is the appeal by the Appellant/Defendant against the decision of the learned High Court Judge, given on 11.8.2017 after a full trial, in allowing the Respondent/Plaintiff’s claim against the Appellant/Defendant for RM1,570,469.00 being the unpaid sums for the renovation work done on the Appellant/Defendant’s house and office.

I shall hereinafter refer to the parties as in the original action. The Plaintiff’s claim 3. The Plaintiff’s claim is that the Defendant had engaged him to carry out renovation works ["the works"] on the Defendant’s house at at no 44, Jalan BU 3/7, Bandar Utama, Petaling Jaya Selangor ["Bandar Utama”] and the storage [also referred to as the office by witnesses] at No. 8 -3, Jalan Nova U5/N, Seksyen U5, Subang Bestari, Shah Alam, Selangor ["Subang Bestari”]. 3

The Plaintiff had carried out and completed the works on the house as well as the storage around February 2015 and the total costs incurred is RM1,570,469.00 [RM1,470,552.00 for the House + RM99,917.00 for the Office] .

Five invoices were issued detailing the type of renovations, purchases and installation done by the Plaintiff on the House and the Office.

The Invoices, upon the request of the Defendant, were issued in the name of the Defendant’s brother in law, one James Dharmendra Pany["James"], because the Defendant who is a police officer wanted to avoid detection of police force regarding the work. However, the Defendant promised the Plaintiff that he would pay for the works on the House and the Office in one lump sum after the completion of the works.

The Defendant failed to pay the Plaintiff upon being presented with the five invoices to the Defendant around February 2015. The Defendant’s reason for non-payment was because he had been suspended from the police force and his account was frozen. See: RR Bahagian Jilid 2I pages 1282 – 1283.

The Defendant then convinced and requested the Plaintiff to furnish the Defendant with duly signed Plaintiff’s letterhead with amount and dates to be inserted so that money could be withdrawn from the Defendant’s account to pay the Plaintiff. The Plaintiff did as requested by the Defendant. 4

The Defendant still failed to pay the Plaintiff which prompted the Plaintiff to write a letter of demand requesting the Defendant to pay RM1,570,469.00 which is due and owing by the Defendant to the Plaintiff for the works done on the House and the Office. The Defendant did not respond to the letter of demand and failed to make any payment. Hence, the action against the Defendant.

The Plaintiff also by way of alternative the following: a. 1st Alternative cause of Action – Defendant Committed Fraud towards Plaintiff. b. 2nd Alternative Cause of Action – Defendant’s Obligation to Compensate For the Benefit Received. Defendant’s Defence 11. The Defendant denied that he had engaged the Plaintiff to renovate the house and the office. He claimed that the agreement for the works on the house and the office at the Premises was between the Plaintiff and James, he was not involved and had nothing to do with them.

There was a written agreement between the Plaintiff and James in respect of the works on the House and the Office. Further, James had also made full payment for the entire works at the Premise.

At all material times, the Defendant does not have or owe any office at Subang Bestari. 5

The Defendant claimed that he did not receive any letter of demand or any invoices from the Plaintiff in respect of the works on the House and the Office. Evidence of the Plaintiff 15. The key witness for the Plaintiff is PW1 who is the director of the Plaintiff.

PW1 testified that sometime in January 2014, the Defendant engaged him to renovate the House. The Defendant represented to him that he is a Dato' and a senior police officer and he believed that the Defendant is a well-respected person with good financial means. The Defendant requested him to issue the invoices in the name of James because he wanted to avoid detection from the police force on the work. The Defendant promised that he would be the one to pay for the works which were done for his benefit.

Later in April 2014, the Defendant also requested him to do works at the storage space at Subang Bestari.

Upon completion of the works, PW1 approached the Defendant with five invoices for payment for the works done but the Defendant did not pay saying that he had been suspended from the police force and that his bank account was frozen. The Defendant told PW1 that in order to release the money from the frozen account to pay the Plaintiff, PW1 could furnish him with duly signed Plaintiff’s letterheads with dates and the amount owing to be inserted. PW1 was convinced by the Defendant and upon request by the Defendant, furnished the Plaintiff company’s letter to the Defendant. PW1 identified the Plaintiff’s company letter written with “official receipts/full payment” that was attached to the two statutory 6 declarations as the very Plaintiff’s company letter that he furnished to the Defendant. See, RR Bahagian C Jilid 2I pages 1282 – 1283

When the Defendant still failed to pay the sum of RM1,570,469.00 or any sum thereof, PW1 lodged a police report as well as issued a letter of demand enclosing all the five invoices. There was no response from the Defendant to the letter of demand. Evidence of the Defendant Testimony of DW1 20. The Defendant’s [DW1] testimony comprised mainly of denial of his involvement with the works on the House and the Office. He testified that James engaged PW1 to undertake the works on the House for the purpose of buying it. He does not own the property at Subang Bestari and it belonged to his wife’s [DW3] family business. He was not involved in the agreement between the Plaintiff and James. All the supervision and progress of the work on the House and the Office were liaised by DW3 who would update him on the progress. Testimony of DW3 21. DW3 is the wife of the Defendant. She testified that there was an agreement for the works on the House and the Office between the Plaintiff and James in the form of a Letter of Understanding prepared by PW1 and signed by PW1 and James in her presence as a witness. See, RR Bahagian C Jilid 2I pages 1278 -1281.

Due to the nature of James’s work which required him to be based in Indonesia most of the time, she was asked by James to supervise the progress of the works. 7

Upon completion of the works on the House and the Office, PW1 issued the letter at page 17 of Bundle C attached with three receipts [which were not admitted as exhibit]. See: Bahagian C Jilid 2I pages 1289-1291.

DW3 testified that PW1 had affirmed two statutory declarations each annexed with an official receipt issued by the Plaintiff, stating that full payment for the works on the House and the Office had been paid by James to the Plaintiff. See: RR Bahagian C Jilid 2I pages 1282 and 1284.

The Plaintiff’s claim has no basis as James had fully paid for the works on the House and the Office. Testimony of DW2 26. DW2 is a Commissioner for Oath and he testified that PW1 had affirmed the statutory declarations before him. Testimony of DW 4 27. DW4 is a police sergeant who is a colleague and a friend of the defendant. He testified that at the request of DW3, he handed over cash of RM35,000.00 to PW1 in the House at Bandar Utama and PW1 signed the acknowledge of receipt dated 21.9.2014. See: RR Bahagian C Jilid 2I page 1288. Court’s determination

Whether it was the Defendant who engaged the Plaintiff to carry out the works at the House and the Office? 8

Whether the Plaintiff had completed the renovation works at the

It is regrettable that we do not have the benefit of a full written grounds of the learned trial Judge who has since retired. In this rehearing exercise, we shall make our finding based on the undisputed facts and the evidence on record.

It is evidently clear from the testimony of the Defendant and DW3 that the works on the House and the Office had been completed by the Plaintiff.

DW3 admitted in her witness statement that the works had been carried out and completed on the House and the Office.

What about the renovation for the storage area for your teak wood collection? There was not much work to be done. Ng Thian Hong had completed the renovation works pertaining to storage area within two weeks upon starting it. [Underline added] See: Jilid 2F page 1004 at Q&A 17 [last paragraph]:

In the Defendant’s Amended Defence at Jilid 1 at page 59 at paragraph 4.3, the Defendant pleaded:

4.3 Plaintiff sememangnya telah melakukan kerja-kerja ubahsuai berkenaan Rumah defendant. 9

The Plaintiff had explained why the invoices were issued in the name of James and not the Defendant. His explanation is not incredulous regard being had to the following.

It is in evidence that the Defendant and his wife, DW3, are the joint-proprietors of the House. Both are currently living in the House.

In our considered view, the very fact of the Defendant and DW3 living in the House is inconsistent with their assertion that James wanted to buy the House from them and James wanted to have the House renovated on his own expenses before he actually purchased it. Both of them did not object to James’s proposal to renovate the House. After the renovation, James had made full payment for the works.

It is the common testimony of the Defendant and DW3 that they intended to sell the House and move to DW3’s house at Lavender Height. DW3 testified that during the renovation of the House, she and the Defendant moved out and temporarily lived with her other brother, Richard.

Given that the House was to be sold to James and James had allegedly paid in full for the works, it begs the question why the Defendant and DW3 moved back to the House after the works had completed and enjoyed the works done on the House. Shouldn’t the House be transferred to James? There is no explanation from the Defendant why until today the House is still in his name and DW3’s, and why it has not been transferred to James. The Defendant has not adduced an iota of evidence to show that the House was to be sold to James and that James was permitted to renovate the house before the actual purchase. James was not called as a witness for the defence. 10

It is the Defendant’s testimony that he was surprised when he discovered PW1’s police report against him alleging that he did not pay the Plaintiff for the works done on the House and the Office. He was surprised because he did not have any dealings with PW1 over the works on the House and the Office.

It is significant to note that surprised as he was by PW1’s police report, the Defendant did not write to or meet with PW1 who was a close family acquaintance to withdraw the police report and enclosed the three receipts [pages 14-17 Bundle C] to show that James had in fact made full payment for the works. He also did not write to PW1 enclosing the two statutory declarations and the official receipts attached thereto to show that James had made full payment for the works done at the two premises.

We find the nonchalance of the Defendant to PW1’s police report is inconsistent with one who claimed not being involved in the works done by the Plaintiff on the House and the Office.

PW1 testified that he had posted a letter of demand enclosed with the five invoices to the Defendant at no 44, Jalan BU 3/7, Bandar Utama, Petaling Jaya Selangor. He produced a Pos Laju posting receipt [RR Bahagian C Jilid 2I at page 1276] which showed the correct name and address were stated. There was no response from the Defendant

The Defendant averred in his witness statement that he had never seen the Plaintiff’s letter of demand. 11

It is highly improbable for the Plaintiff’s letter of demand not to have been posted as alleged by the Defendant. Section 3 of Postal Services Act 2012 states: For the purpose of this Act, “delivery”….means:

leaving the postal article with the addressee….according to the usual manner of delivering postal article to that addressee, and…delivery to the proprietor….shall be deemed to be delivery to the addressee.

In Pewira Habab Bank Bhd v Sehatian Development Sdn Bhd [1994] 1 CLJ 394, the High Court dealt with section 3 of the old Post office Act 1947 which is pari materia with section 3 of the new Postal Services Act

The learned Judge Dr. Zakaria M. Yatim J held: Counsel for the plaintiff submitted that the letters of demand were properly served on each of the defendants by AR registered post. In support of her submission, she referred to s. 3 of the Post Office Act 1947 and the Post Office Rules 1947. …….. Counsel of the plaintiff referred to the definition of "delivery" in s. 3 of the Post Office Act 1947. Section 3 defines "delivery" as follows: the delivery of a postal article at the house or office of the addressee, or to the addressee or to his servant or agent or other person considered to be authorised to 12 receive the article according to the usual manner of delivering postal articles to the addressee or to a box provided, pursuant to the rules made under s. 24, on or contiguous to any premises or the compound thereof for the receipt of postal articles bearing the address of those premises,... shall be deemed to be delivery to the addressee. In view of the above definition, I am of the view that the AR registered letters sent to the third and fourth defendants at their respective addresses were deemed to be delivered to them. …….. In R v. The Westminster Unions Assessment Committee [1917] 1 KB 832 the Court held: that delivery to the post office of a letter containing a notice properly addressed and prepaid as directed by s. 65 raises a presumption that the notice has been received by the addressee; that this is not merely a presumption of fact until the contrary is shown, but is a presumption of law which cannot be rebutted by showing that in fact the notice had not been received [emboldened for emphasis].

Thus, as rightly submitted by learned counsel for the Respondent, by law, the Plaintiff’s letter of demand enclosing all the five invoices which had been sent by Certificate of Posting, is deemed to have been delivered to the Defendant. 13

Other than a bare denial of receipt of the Plaintiff’s letter of demand, the Defendant has not offered any explanation why the letter of demand properly addressed to the House address was not received by the Defendant as alleged.

The five invoices listed down in detail description of the type of renovation, the places renovated, the materials used and the invoices of purchases of materials for the works. See: RR Bahagian C Jilid 2G pages 1034 -1041, 1042 – 1045, 1046 – 1047, 1029 – 1031 and 1032 and 1033.

The Defendant did not dispute the contents of the letter of demand and the five invoices enclosed therewith. If indeed the Defendant was at all material time not involved in the works on the House and the Office and that the agreement was between the Plaintiff and James as alleged, “it is reasonable to expect a prompt and vigorous denial”, per Edgar Joseph Jr. J in Tan Cheng Hock v Chan Thean Soo [1987] 2 MLJ 479-487 referred to in Bank Kerjsama Rakyat Malaysia Bhd v BramptonHoldings Sdn Bhd [2015] 4 CLJ 635.

It is our considered view that when the Defendant’s nonchalance to PW1’s police report is viewed together with his failure to raise a prompt and vigorous denial to the letter of demand and to inform the Plaintiff that the agreement for the works was in fact between the Plaintiff and James and that James had made full payment for the entire works as per the statutory declarations and the official receipts attached thereto, combined with the fact that the Defendant and DW3 are now living in the House enjoying the benefit of the works done thereon, it all probability it was the Defendant who had engaged the Plaintiff to do the works on the House and the Office. 14

Section 71 of the Contracts Act 1950 states:

Obligation of person enjoying benefit of non-gratuitous act Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

There are four conditions which must be satisfied to establish a claim under section 71 of the Contracts Act 1950, viz:

Must be lawful.

Must be done for another;

Must not be intended to be done gratuitously;

Must be such that the other person enjoys the benefit of the act or the delivery.

We are satisfied that the Plaintiff has satisfied the four conditions and proved the claim under section 71 of the Contracts Act 1950.

The Defendant tried to refute the Plaintiff’s claim by relying on the Letter of Undertaking [RR Bahagian C Jilid 2I pages 1278 -1281], the statutory declaration dated 10.4.2015 in respect of the House and the annexed Official receipt/Full payment in the Plaintiff’s letterhead [RR Jilid

PW1 admitted to signing the two statutory declarations and the Plaintiff company’s letters annexed thereto. He explained that he did so upon the request of the Defendant who convinced him with the tale of frozen account and to get paid was for PW1 to issue Plaintiff company’s letters with his signatures and with the dates and the amount to be inserted.

PW1 explained in cross-examination that before DW3 brought him to see the Commissioner for Oath, both DW3 and the Defendant told him that the purpose of the statutory declaration was for the purpose of making payment as the Defendant’s account was frozen and for James to take out the money from his account. See: RR Bahagian C Jilid 2C Page 447/ page 60 of the NOP and page 448/Page 70 NOP.

PW1 admitted that he signed the Letter of Undertaking as a blank document.

DW3 testified that on 8.4.2014, PW1 came to meet James and her with the Letter of Undertaking that he had prepared.

DW3 disagreed when it was put to her that the Letter of Undertaking was a blank document and that PW1 put his signature and affix his thumb print on them and the contents were inserted later.

Counsel for the Plaintiff in cross-examining DW3 had pointed out numerous discrepancies and inconsistencies appeared in the Official 16 Receipt/Full Payment annexed to the statutory declaration [RR Bahagian C Jilid 2I pages 1283 and 1285] and the payment schedule in the Letter of Undertaking [RR Bahagian C Jilid 2I pages 1280] as well as in the alleged three receipts [RR Bahagian C jilid 2I pages 1289, 1290 and 1291] and the acknowledgment of cash payment of MR35,000.00 on 21.9.2014 [RR

The details of the above inconsistencies are found in the Appellant’s written submission for the Respondent at paragraph D, paragraph 70 to 82, pages 27-34.

DW3 was not able to explain the discrepancies because she was not privy to the purported payment arrangement between PW1 and James and she insisted that these documents were prepared by PW1, which PW1 disputed.

Given that the documents relied on by the Defendant are disputed documents as to contents and since it is the Defendant’s assertion that it was James who engaged the Plaintiff to do the works and James had paid for the entire works, the burden rests upon the Defendant to call James to come to Court to tell the Court the mode of payments and to produce the receipts issued by the Plaintiff to James for the payments that James had made.

James is a key witness but he was not called to testify. DW3 said James was in Indonesia and unable to attend court due to his medical condition. It is a bare statement with no proof of any attempts being made to call him and no medical certificate was produced to show so called “medical condition” which prevented James from attending Court to testify. 17

Under the circumstance, the adverse inference under section 114(g) of Evidence Act 1050 is invoked against the Defendant for failing to call James to testify.

We are mindful of the Defendant’s submission that in the annual financial statement and the audited account of the Plaintiff for year ending 2015, there was no mention of the amount of RM1,570,469.00 being a debt incurred by the Plaintiff. This goes to show that James had fully settled the payment for the work.

It is our view that mere omission of stating RM1,570,469.00 as debt of the Plaintiff in the Plaintiff’s annual statement of account does not mean that no debt is owing.

The Defendant also raised the issue of recusal in the Memorandum of Appeal. The Defendant contended that the trial Judge ought to be recused because of the bias she showed on two matters, that is, the frozen account issue and the religious issue.

It is on record that the learned trial Judge had dismissed the Defendant’s recusal application and the Defendant appealed against that decision. Meanwhile the trial proceeded to conclusion and the decision delivered by the trial Judge.

Regards being had to the above, we are of the considered view that the issue of recusal is now an academic exercise and it serves no purpose for us to deliberate on it. 18

It is our considered view that the Defendant has failed to discharge the burden of proof that has been shifted to him.

For all the reasons aforesaid, it is our unanimous decision that the Plaintiff has proved their claim on the balance of probability and are entitled to judgment on the claim. Accordingly, we see no merit in the Defendant’s appeal and hereby dismiss it. The decision of the High Court is affirmed. Dated: 28th of June 2019 Sgd YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellants : S. Schrishanthini [MURALI B PILLAI & ASSOC (KUALA LUMPUR)] For Respondents : Vishnu Kumar [JS PILLAY & MOHD HAAZIQ (PETALING JAYA)] Notice: This copy of the court’s reasons for judgment is subject to editorial revision.