Ravindran A/L Sivasubramaniam v Ramesh A/L Rajaratnam (22NCC-344-10/2015)

The plaintiff‟s claim is for a sum of RM10 million. It is a purely monetary claim. This sum according to the plaintiff, has been loaned to the defendant pursuant to the latter‟s request over a period of time.

The plaintiff claimed that both parties subsequently executed a personal loan agreement evidencing the RM10 million owed by the defendant. He then made a demand on the sum owed. The defendant‟s denial of the monies allegedly owed culminated into this suit. 2 Facts

The plaintiff and defendant were no strangers to each other. They have been friends since their youth in the eighties. Back then they used to meet up socially, being the close friends that they were.

Their friendship culminated into a business relationship. It was a symbiotic one, as the plaintiff was a businessman, and the defendant an accountant. Back then, the defendant was an executive director at PriceWaterHouseCoopers Malaysia, one of the big four auditors in the world. The defendant however ceased being a director in 2006 and turned to doing business on his own.

This relationship turned sour. The plaintiff claimed that he had loaned RM10 million to the defendant, and that the defendant had reneged on his promise to pay him back. The plaintiff‟s claim is premised on a document titled „Personal loan‟ dated 17 May 2009, which documented the alleged RM10 million loan. The plaintiff also claimed that the personal loan document had been duly executed by the defendant. The defendant denies this. This in essence is the subject matter of this suit.

A brief history of how the sum of RM10 million had come about may be useful. The plaintiff claimed that the defendant wanted to acquire some shares in a company called Malaysian Merchant Marine Berhad („MMMB‟). This was in 3

This acquisition he was told would enable the defendant to obtain a controlling stake. The defendant had sought for the plaintiff‟s assistance to purchase the shares on his behalf, to which the latter agreed. [7] The plaintiff proceeded to purchase some 30 million shares of MMMB in the open market. The plaintiff claimed that the defendant had agreed to pay him back within two weeks. The defendant was eventually made the Vice President and also the Chief Executive Office of MMMB. The defendant‟s plan had worked. [8] However, the plaintiff claimed that the defendant was not able to pay him back and had asked the plaintiff to sell off the shares in the open market in order to recover the monies spent. The plaintiff did just that but was only able to recover about RM6.6 million, as the price of the MMMB shares had plummeted since he purchased it. [9] The plaintiff claimed that he had shown a statement evincing the losses that he had suffered, and that the defendant had acknowledged and agreed to pay him back. [10] It did not stop there. According to the plaintiff, the defendant had in 2008 managed to persuade him to purchase two oil tankers from a company called Syarikat Kosmo Resources Sdn Bhd, and then sell them to MMMB. The defendant claimed that the proceeds could be used to resurrect 4 MMMB,and that the money be used to repay the plaintiff. Again, the plaintiff agreed. [11] The plaintiff paid a deposit of RM1 million for the oil tankers. The defendant however failed to complete the purchase within the stipulated time period, which resulted in the deposit of RM1 million forfeited by the seller. [12] This still was not the end, as the defendant had managed to convince the plaintiff to put up another RM1 million to activate again the purchase of the oil tankers. Again the plaintiff acquiesced, and paid up another RM1 million as deposit. Yet again the defendant‟s plan turned awry. The sale did not go through, which ended up in the plaintiff losing his deposit for the second time. [13] By this time, the plaintiff claimed to have been owed RM10 million in total by the defendant. On the 17 May 2007, the defendant invited the plaintiff to come over to his house after dinner. The defendant had also invited their mutual friend named P. Deveinderan („PW6‟) to join them. [14] The defendant, according to the plaintiff, had prepared the „Personal Loan‟ document dated 17 May 2009. It was a simple five paragraph document which the plaintiff claimed was signed by him, the defendant and PW6 as a witness. The personal loan document is reproduced below:- 5 [15] The defendant had denied signing the document and claimed that the document was fabricated. The document was initially marked as „ID-20‟. 6 [16] It is the plaintiff‟s case that the defendant had failed to pay pursuant to the personal loan agreement when a demand was made by him. Issues to be tried [17] The following were the agreed issues by both parties:-

Whether the plaintiff has spent at least RM10 million at the defendant‟s request and on the defendant‟s undertaking to repay the plaintiff.

Whether there was a personal loan dated 17 May 2009 executed between the plaintiff and the defendant.

If so, whether the defendant had undertaken to repay the sum of RM10 million through a personal loan dated 17 May 2009 executed by the plaintiff and the defendant.

Whether the present action is barred by limitation.

Whether the present action amounts to an abuse of the court‟s process. [18] I shall address them in turn. 7 Findings [19] Having read the written submissions by both parties and considering the evidence adduced at trial, I have concluded that the primary issue is whether there was a personal loan agreement dated 17 May 2009 executed by the plaintiff and the defendant, and whether the defendant has failed to pay pursuant to the terms of the personal loan agreement. [20] The personal loan agreement if established, would prove issue (a), as the personal loan agreement was a consequence of monies advanced by the plaintiff to the defendant. This finding will establish the conclusion for issues (a) to (c). [21] The defendant‟s pleaded defence was that the personal loan agreement was fabricated, and that the plaintiff‟s claim was in any event time barred, and an abuse of the court‟s process. [22] The plaintiff had called two other witnesses other than himself, to prove the authenticity of the personal loan agreement. They were Lim Yok Chaw (PW4), and as mentioned earlier the plaintiff and defendants mutual friend, PW6. [23] PW4 is an expert document examiner. He had been assigned by the plaintiff‟s solicitors to examine an original copy of the personal loan agreement. He had also prepared 8 a report entitled „Signature Verification Report‟ dated 20 August 2017, which was exhibited in his affidavit affirmed on the 29 August 2017 [enclosure 56]. The defendant conversely did not appoint nor call any expert to testify. [24] PW4 had utilised the defendant‟s specimen signatures in the affidavits that he had affirmed previously, to analyse what had been alleged as the defendant‟s signature in the personal loan agreement. PW4 concluded that the signature in the personal loan agreement was that of the defendant‟s. [25] It was suggested by the defendant‟s counsel during cross-examination that his report would have been more complete, had he been given the other copies of the agreement to inspect. PW4 had in response disagreed with the suggestion and maintained his findings. [26] I am mindful of the tenet that evidence by handwriting experts are only opinion evidence and not conclusive; see PP v Mohamed Kassim Bin Yatim [1977] 1 MLJ 64. It is primarily the court‟s duty to make a finding of fact, and not beholden to the expert‟s findings. Nevertheless, an expert‟s opinion carries weight, and may be considered. [27] PW4‟s report was not credibly challenged. That is not surprising, given that the defendant did not produce any expert to challenge it. It did not matter whether there were two or three other similar agreements. All PW4 had to ascertain was whether the signature in the personal loan 9 agreement that he inspected was that of the defendant‟s. Despite learned counsel for the defendant counsel‟s incessant cross-examination, I did not find them, with respect, to have credibly challenged PW4‟s report or testimony. [28] I am satisfied, given PW4‟s expertise, that his conclusion is correct. Furthermore, the defendant did not deny outright that the signature was his, nor did he claim that it was forged. To merely state that it looked like his signature is a feeble attempt to disclaim. I will elaborate on this point later. [29] PW6, the common friend of both litigants, claimed to have signed as a witness in the personal loan agreement in the presence of the plaintiff and defendant. He did not however witness the plaintiff and defendant signing the agreement. [30] I have given due consideration to the evidence of PW6. Although he was called as the plaintiff‟s witness, he did not come across as one that would testify in favour of the plaintiff. He appeared to be impartial. After all, he had nothing to gain. I accept his testimony that he had signed the agreement as a witness, and that what seemed to be the plaintiff and defendant‟s signatures were already there when he signed it. [31] It was uncontroverted that the defendant was the one who had summoned the plaintiff and PW6 over to his house. The fact that PW6 was asked to sign the personal loan 10 agreement in the presence of both the plaintiff and defendant, could only mean that the personal loan agreement existed in the form that it was presented in this suit, and that both the plaintiff and defendant wanted PW6 to witness their signatures. [32] The defendant had questioned the authenticity of the agreement. In his witness statement, the defendant claimed that he did not recall signing the agreement. Under cross-examination, he admitted signing some documents on the day concerned, but not the agreement. When confronted with what has been claimed to be his signature on the personal loan agreement, the defendant stated that it appeared to be his signature but stop short of admitting that it was. The following was what transpired during crossexamination:- So you are claiming that the document, I would show it to you now, which appears at page 52 and

Can you look at Enclosure 66, Mr Ramesh? Perhaps I will show you the original. This is the document that you are claiming is fabricated and does not contain your signature. Isn‟t that right, Mr. Ramesh? Ramesh: No, it is not right. So what are you claiming? 11 Ramesh: I am saying that this is the first time I am seeing the original. The copies here, there are on page 49. Mr Ramesh, can I stop you there. Perhaps we will make it clearer. Look at the document which I have given you, the original, look at the second page. Is that your signature? Ramesh: The second page appears to be my signature. Appears to be. So you are not sure? Ramesh: I am not sure but it appears to be, the second page. [33] When pressed further, the defendant kept shifting his position. He was either denying having signed the personal loan agreement, or deny owing the plaintiff RM10 million. At the same time, he did not deny owing the plaintiff some money, save that it was not for RM10 million. At one point in time, he even agreed that it was possible that he had signed the personal loan agreement. [34] The defendant was evasive during cross-examination. He had refused to answer directly even the most direct questions. The following are merely some examples of the exchanges between learned counsel for the plaintiff and the defendant:- 12 Ramesh: I did not recall signing a Personal Loan document. So you could have signed it. You can‟t remember. You could have signed it? Ramesh: I could have gone to the moon. ............ Very well, we will leave it at that. Now signing an IOU or a document that says that you owe somebody 10 million, this is a serious matter, isn‟t it Mr Ramesh? Ramesh: I believe so. Yes and once you sign it or if it is shown that you signed it, it is what it says isn‟t it, that you do owe 10 million bucks? Ramesh: I do not know the legal position, Mr Siva because you are going into a legal area. But I am talking to you as a person who claims to be cautious, who comes from an accounting background that unless you owed the money, you would not sign a document that said you owe 10 million dollars, would you? 13 Ramesh: There is a probability that I was deceived into signing it Mr. Siva. Alright, ok. We will leave it at that. You have not alleged in your Defence, Mr Ramesh that you were deceived into signing the loan document, have you? Ramesh: I cannot recall now. [35] He was skirting around with most of the questions directed to him by the learned counsel for the plaintiff. He was in fact constantly „shifting the goal post‟. Credit is due to the learned counsel for the plaintiff, Mr. S. Sivaneindiren, for being remarkably patient and courteous. [36] The defendant‟s defence was inconsistent with his statement of defence and testimony in court. I have observed the defendant closely during the course of the trial. His demeanour was in contrast to the plaintiff, whose disposition was that of an honest person. [37] It is my finding that the personal loan agreement is authentic and admits it as an exhibit marked “P-20”. [38] It is also my finding that the agreement is a promissory note, as it had satisfied the provisions of s. 88(1) of the Bills of Exchange Act 1949. The contents of the agreement are unequivocal. Under this agreement, the defendant had 14 acknowledged owing the plaintiff RM10,000,000.00 and that it is repayable on demand. [39] To conclude on issues (a) to (c), I find that the plaintiff has disbursed RM10 million at the defendant‟s request. I also find that the plaintiff and defendant had executed the personal loan agreement dated 17 May 2009 where the defendant has agreed to pay back the plaintiff RM10 million. [40] The next issue is whether the plaintiff‟s claim is time barred. It was a term of the personal loan agreement that the amount was due on demand. [41] The plaintiff had in his witness statement stated that he had made the demand on the defendant orally sometime in November 2009. This suit was filed on 28 October 2015 and would be time barred on 1 November 2015. [42] The defendant however claimed that the plaintiff had made the demand orally in July or September 2009. The plaintiff denied this vehemently when pressed incessantly by the learned counsel for the defendant. The following is an excerpt of the cross-examination by the learned counsel for the defendant on the plaintiff:- SBL: Ok, fine. I take your word for it. Now I am going back to the earlier pressure for interest, I put it to you that, since there is no interest payable, you cannot actually ask for interest and you actually made a 15 demand right? That‟s my stand that I am putting it to you. Then in your answer to Question 93, you said, „Sometime in November 2009‟, you made an oral demand. So, I am putting it to you that the so-called oral demand sometime made in November 2009 is only a continuation of the demand for interest which is actually a demand for payment that you made in September 2009. Agree? Ravi: It‟s not true, I never made a demand in September. [43] I am more inclined to believe and accept the plaintiff‟s testimony. Compared to the defendant, the plaintiff was resolute and firm when being crossed throughout the trial. With respect, I am unable to fathom the approach taken by the defendant on this issue. The position taken when cross-examining the plaintiff is at variance with their pleaded defence. The defendant denied the existence of the loan but at the same instance also denied that a demand had been made. [44] I would nevertheless concur with the plaintiff‟s solicitors‟ submission, that alternatively, the writ itself was a valid notice; see Malayan Banking Berhad v Lim Chee Leng [1985] 1 MLJ 214 (FC). In view of this finding, the defendant‟s defence that the plaintiff‟s claim is time barred fails. 16 [45] The personal loan agreement has fulfilled all the criteria of a promissory note as set out under S. 88(1) Bills of Exchange Act 1949, in that:-

it is an unconditional promise in writing

made by one person to another and signed by the person giving it, and

it requires the addressee to pay on demand, or at a fixed or determinable future time, a sum of certain money to a specified person. [46] The final issue now is whether the plaintiff‟s claim is an abuse of the court‟s process. The plaintiff had previously filed a suit against the defendant through a Kuala Lumpur High Court Suit No. D-22NCC-909-2010. This suit was filed on the 10 May 2019. [47] The previous suit too was based on the personal loan agreement. A judgment in default of appearance was initially entered against defendant on the 26 May 2010. This judgment however was subsequently set aside by consent on the 27 July 2010 through the defendant‟s application. The plaintiff was ordered to serve the writ of summons and statement of claim within fourteen days from the 27 July

The writ was never served, and subsequently expired on 10 November 2010. These facts were undisputed. [48] The plaintiff candidly admitted that he had agreed to take up the offer of an alleged debt collector by the name of Mr. Goh 17 Jee Kou to recover the debt from the defendant. It was agreed that Mr. Goh would take up 20% of the debt if he was successful. The plaintiff had as such left it to Mr. Goh who then proceeded to file the previous suit. [49] The notes of proceedings for the previous suit show that the writ had expired, and that the plaintiff‟s application for a renewal of the writ was dismissed by the court. [50] The defendant contended that the plaintiff had failed to comply with the directions given by the court in the previous suit to serve the writ of summons and statement of claim on the defendant, and that this non-compliance and the filing of this suit amounted to an abuse of the court‟s process. [51] I agree with the plaintiff‟s solicitors‟ submission that the plaintiff was not given an ultimatum, or a pre-emptory order to serve the writ in the previous suit. He was very much entitled to abandon the previous suit and take up this new suit. [52] The Federal Court had similarly in Pembinaan dan Pemaju Mahasiswa v ASM Development [2003] 4 MLJ 633 (FC) held that it would not be an abuse of process, where when a litigant is given choices of abandoning the previous suit, proceeding with it, or to file afresh. The court there drew a distinction between a pre-emptory order and one that is not. 18 [53] In this case, it was manifest that there was no pre-emptory order made in the previous suit. The plaintiff had a choice to either proceed to serve the writ of summons on the defendant within the stipulated time period or otherwise. There was no pre-emptory order to sanction the plaintiff in the event that he had failed to serve the writ of summons within the stipulated time period. [54] In any event, this argument is devoid of merits, as the defendant had prior to this trial made an application to strike out this suit based on two grounds, namely that the plaintiff‟s claim is time barred, and that it had amounted to an abuse of the court‟s process. Although the defendant was successful at the High Court level, the plaintiff‟s subsequent appeal to the Court of Appeal was allowed. [55] The defendant is as such estopped from now litigating this issue again. The Court of Appeal‟s ratio in the case of Hartecon JV Sdn Bhd v Anor v Hartela Contractors Ltd [1996] 2 MLJ 57 is instructive. The Court of Appeal there held that a party could not raise an issue which had already been decided at an interlocutory stage or appeal. Gopal Sri Ram JCA (as his lordship then was) who delivered judgment for the appellate court held:- “The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties 19 to re-agitate the matter again at a subsequent stage of the same proceedings.” …… “We cannot over emphasize the proposition 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.” [56] I therefore hold that the defendant‟s contention that the plaintiff‟s claim was time barred and an abuse of the court‟s process unmeritorious and must fail. Conclusion [57] The plaintiff has successfully proven his claim against the defendant. The plaintiff‟s claim under paragraph 24(a) and

of the Re-Amended Statement of Claim are allowed. The defendant is to pay the sum of RM50,000.00 as costs to the plaintiff subject to allocatur. Dated: 12 June 2018. -sgd- (Mohamed Zaini Mazlan) Judge Kuala Lumpur High Court (Commercial Division) 20 Counsel for the plaintiff S. Sivaneindiren and Joyce Pang [Messrs Cheah Teh & Su] Counsel for the defendant S. Selva Balan, R. Suresh and Balasundram [Messrs R. Suresh & Associates]