Seah Kok Heng v Khoo Chooi Poh (P-04(IM)(NCVC)-354-07/2018 & P-04(IM)(NCVC)-362-07/2018)

1 DALAM MAHKAMAH RAYUAN MALAYSIA Dl PUTRAJAYA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: P-04(IM)(NCVC)-354-07/2018 [DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG RAYUAN SIVIL NO.: PA-12ANCVC-11-04/2017 MAHKAMAH SESYEN DI GEORGE TOWN DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN NO. PA-A52NCVC-61-06/2016 2 ... PLAINTIF ... DEFENDAN] DIDENGAR BERSAMA DALAM MAHKAMAH RAYUAN MALAYSIA Dl PUTRAJAYA (DALAM BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: P-04(IM)(NCVC)-362-07/2018 [DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG RAYUAN SIVIL NO.: PA-12ANCVC-69-12/2017 3 MAHKAMAH SESYEN DI GEORGE TOWN DALAM NEGERI PULAU PINANG, MALAYSIA GUAMAN NO. PA-A52NCVC-61-06/2016 ... PLAINTIF ... DEFENDAN CORAM: HAMID SULTAN BIN ABU BACKER, JCA HANIPAH BINTI FARIKULLAH, JCA KAMALUDIN BIN MD SAID, JCA Hamid Sultan Bin Abu Backer, JCA (Delivering Judgment of the Court) 4 GROUNDS OF JUDGMENT [1] There are two appeals before us relating to the same properties in issue, arising from the Sessions Court. Both appeals are the defendant’s appeal in principle, challenging the summary judgment and the subsequent enforcement of the said judgment. [2] Appeal ‘No. 354’ is related to delivery of a vacant possession and recovery of the outstanding rental for the above premises. In this appeal, the plaintiff/respondent as a landlord had obtained summary judgment. The appellant/defendant’s appeal in the High Court was dismissed and hence the current appeal. [3] The appeal ‘No. 362’ is related to the appellant/defendant’s application to strike out the writ of possession and the Bailiff’s Notice of Seizure and Inventory, based on the summary judgment. The application was dismissed by the Sessions Court. On appeal to the High Court, it was dismissed and hence this appeal by the appellant/defendant. [4] What is interesting and unique about this case is that the issue as who is the owner of the two properties in relation to the title had already been decided by previous proceedings and affirmed by the Court of Appeal. However, what has not been decided is the defendant’s equitable interest in the said properties which were operated as a boutique hotel, says the defendant’s counsel. Thus, the learned counsel attempts to distinguish a rem and a personam action. 5 [5] Both the matter came up for appeal on 20-3-2019. To our mind, the triable issues that the defendant had raised was quite unique and needed further consideration and in consequence, we reserved judgment. [6] The brief facts and grounds of the judgment of the learned High Court Judge in the appeal ‘No. 354’ has been placed in a rudimentary manner before us and it reads as follows: “Brief Facts

1. Plaintiff is the registered proprietor and landlord of the subject property i.e. premises No. 38 and 40 at Jalan Pintal Tali, Penang situated on Lot 289.

2. Plaintiff filed an application against the defendant in Session Court for delivery of vacant possession and recovery of the outstanding rental for the above premises.

3. The plaintiff then filed an application for summary judgment.

4. On 13.4.2017, the Session court granted the plaintiff’s application and the vacant possession. Defendant filed an appeal to the High Court against the decision of the Sessions Court.

5. On 22.6.2018, the High Court Judge dismissed the appeal. On 16.7.2018, Defendant filed an appeal to the Court of Appeal against the decision of the High Court. Judgment by the High Court Judge (HCJ)

6. The HCJ found that there is no merits in the appeal and dismissed the appeal. The reasons are as follows: 6 Jurisdiction of the Session Court Judge 7. The learned counsel for the defendant contended that defendant in his statement of defence had pleaded a challenge to the plaintiffs title to Lot

289. Therefore, they contended since it is an issue which relates to one of immovable property, the SCJ has no jurisdiction to determine the issue by virtue of limitation imposed by Section 69 of the Subordinate Courts Act 1948 (SCA 1948).

8. The HCJ of the view that the learned counsel for the defendant had not factor in the operability of Section 66 of the SCA 1948. It is germane to note that it is the defendant who had raised the issue of the plaintiff's title to Lot 289 in his statement of defence and by doing so, the defendant himself was caught within the exceptions under section 66 (1) of the SCA 1948.

9. After considered all the authorities by parties, the HCJ of the view that the issue pertaining the jurisdiction of the SCJ has no merit. Res Judicata and Issue Estoppel 10. The basis of the plaintiff's claim against the defendant is the 2nd tenancy agreement dated 5.6.2013 whereas the crux of the defendant defence is that the defendant is not a tenant but the beneficial owner of Lot 289.

11. In the present appeal, the essence of the triable issue raised by the defendant is that he is the beneficial owner of Lot 289 and not the tenant as claimed by the plaintiff.

12. After examining the appeal record, the HCJ found that pursuant to the sale and purchase agreement dated 8.9.2009, Lot 289 was transferred to the plaintiff (1/2 shares), Chan Chee Leong (1/4 shares) and Emily Khoo Sook Lin (1/4 shares) on 10.2.2010. Subsequently, both Chan Chee Leong and Emily Khoo Sook Lin executed the memorandum of transfer (Form 14A) on 19.4.2012 to transfer their respective 14 share in Lot 289 in favor of plaintiff. 7 The memorandum of private search on Lot 289 reveals that the transfer for Lot 289 from Chan Chee Leong and Emily Khoo Sook Lin to the plaintiff was registered on 4.6.2012.

13. The defendant defaulted in his rental payments and the plaintiff had two notices of demand, dated 4.1.2016 and 14.1.2016 sent to the defendant to claim for outstanding rental. The defendant made some partial payments but still in default of the outstanding rental.

14. The defendant then entered a private caveat dated 21.2.2016 against Lot 289 claiming that he has an interest in Lot 289 as the purchaser and he has paid the 10% deposit to the vendor (Daphne Choy Gaik Choo) towards the purchase.

15. The plaintiff then commenced an action at the Penang High Court to remove the private caveat entered by the defendant on Lot 289 vide originating summons no. PA-24NCVC-301-03/2016. The HCJ (YA Puan Hadhariah Syed Ismail) had allowed the application to remove the caveat. The defendant had appeal to the Court of Appeal against the decision of the High Court. The Court of Appeal dismissed the appeal and affirmed the decision of the High Court.

16. Based on the premise, the HCJ opined that in the present appeal, the issue of ownership of Lot 289 has been ventilated by the parties in the Originating Summons and decided by the High Court. This decision was later affirmed by the COA in appeal no. P-02(NCVC)(A)-2263-12/2016.

17. Prior to the hearing of the present appeal, the defendant had earlier applied (Encl. 12) for stay of execution before this court to stay the execution of the judgment of the Session Court in allowing the plaintiff's application for summary judgment. The High Court had dismissed the Defendant's 8 application for stay. Defendant's appeal to the Court of Appeal in Appeal No. P-04(IM)(NCvC)-340-08/2017 was dismissed by COA.

18. In the present appeal, the High Court too retains no exceptions. The findings of the COA in dismissing the defendant application for stay of execution on issue of estoppel and res judicata is binding on this court and as a matter of upholding the hierarchical system.” [7] The Memorandum of Appeal for appeal ‘No. 354’ read as follows: “1. The learned High Court Judge erred in law and in fact in dismissing the Appellant's Notice of Appeal against the summary judgment granted by the Sessions Court on 13.4.2017, and in so doing would appear to make a finding that the transfer of the subject property to the Respondent, Chan Chee Leong and Emily Khoo Sook Lin is conclusive as against the Appellant, thereby disregarding the undisputed fact that the said transfer was a result of the Letter of Nomination dated 26.8.2009 and the Sale and Purchase Contract dated 5.8.2009 between Daphne Choy Gaik Choo as vendor and the Appellant as purchaser.

2. The learned High Court Judge erred in law and in fact in finding that the issue of ownership of the subject property has been ventilated by the parties in the Originating Summons for the removal of the private caveat lodged by the Appellant and affirmed by the Court of Appeal, and in so doing failed to appreciate that a caveat is not a cause of action but a mere statutory notice or relief for the interim preservation of immovable property pending the determination by the Court of the caveator's claim to title.

3. The learned High Court Judge erred in law and in fact in holding that the threshold of proof in respect of the issue of ownership would remain the same and is not differentiated by the nature of proceedings, and in so doing failed to appreciate that the burden of proof on the issue whether the Appellant had a 9 caveatable interest is entirely different from the burden of proof on the issue of whether the Respondent is entitled to summary judgment for vacant possession in the face of the triable issues raised by the Appellant.

4. The learned High Court Judge erred in law and in fact in holding that the Appellant was caught within the exception under Section 66(1) of the Subordinate Courts Act 1948, in so doing failed to appreciate that the 'competence or the duty of the Sessions Court to dispose of the whole matter in controversy, so far as relates to the demand of the plaintiff and any defence thereto', does not enable the Sessions Court to allow summary judgment in the face of triable issues which are not in dispute, nor does it affect the relief which the Sessions Court has no jurisdiction to award.

5. The learned High Court Judge erred in law and in fact in holding that the issue of want of jurisdiction of the Sessions Court is devoid of merit, and in so doing failed to appreciate that the Appellant's counterclaim is clearly beyond the jurisdiction of the Sessions Court and hence, had not been addressed and remains pending to date.

6. The learned High Court Judge erred in law and in fact in holding that the Court is bound by the doctrine of stare decisis in that the Court of Appeal had dismissed the Appellant's Notice of Motion for interim stay of the summary judgment on grounds of issue estoppel and res judicata, and in so doing failed to appreciate that the issues raised in the caveat proceedings, do not in law raise any issue estoppel or res judicata nor do they affect the triable issues raised in the proceedings before the Sessions Court.

7. The learned High Court Judge erred in law and in fact in holding that the Appellant had failed to raise any triable issues and that there is no merit in the appeal, and in so doing failed to appreciate that the Defence and Counterclaim itself does raise triable issues not only in respect of the Respondent's claim for 10 vacant possession, but also in respect of the Respondent's claim for arrears of rental.

8. The learned High Court Judge erred in law and in fact in dismissing the Appellant's Notice of Appeal and in so doing failed to appreciate that in the light of the triable issues, the Appellant is entitled in law to challenge the very claim for arrears of rental and the tenancy agreement itself by way of viva voce evidence to disclose the very nature of the transactions as between the Respondent and the Appellant. CONCLUSION

9. The learned High Court Judge erred in law and in fact in failing to appreciate that the said summary judgment should not have been allowed where there are serious triable issues as to whether the Respondent and his family members are indeed mere nominees of the Appellant, more so in the light of the undisputed Letter of Nomination dated 26.8.2009.” [8] The brief facts and grounds of judgment of the learned High Court Judge in Appeal ‘No. 362’ read as follows: “Brief facts of case

1. Plaintiff is the registered proprietor and landlord of the subject property i.e. premises No. 38 and 40 at Jalan Pintal Tali, Penang.

2. Defendant claimed to be the de facto owner and/or bona fide purchaser for value of the subject property and/or as occupier with equitable interest.

3. On 13.4.2017, Plaintiff obtained Summary Judgment for arrears of rental and vacant possession. On 22.5.2017, Plaintiff obtained an order for leave 11 to issue execution. On 5.6.2017, Plaintiff filed a Writ of Possession for the judgment sum amounting to RM126,809.59.

4. On 2.5.2017, Defendant filed a Notice of Application for stay of execution of the Summary Judgment and it was dismissed by the Session Judge on 1.8.2017. On 2.8.2017, the High Court had dismissed the Defendant's application for stay. Defendant's appeal to the Court of Appeal in Appeal No. P-04(IM)(NCvC)-340- 08/2017 was dismissed on 13.3.2018. (Defendant's application to set aside the COA's decision on grounds of coram failure (Defendant appealed for YA Datuk Nallini and YA Dato' Zabariah to recuse but was dismissed) and for the appeal to be reopen and reheard by different panel was dismissed by COA on 15.11.2018).

5. On 31.7.2017, Defendant filed a Notice of Application to strike out the Writ of Possession dated 5.6.2017, the Bailiff's Notice dated 20.7.2017 and the Notice of Seizure and Inventory.

6. On 3.8.2017, Plaintiff had executed the said Writ of Possession, the Bailiffs Notice and the Notice of Seizure and Inventory.

7. On 12.12.2017, the Sessions Judge dismissed the Defendant's application to strike out the Writ of Possession, the Bailiff's Notice and the Notice of Seizure and Inventory. Defendant filed an appeal to the High Court against the decision of the Sessions Court.

8. On 3.7.2018, the High Court Judge dismissed the appeal. On 23.7.2018, Defendant filed an appeal to the Court of Appeal against the decision of the High Court. 12 Alasan Keputusan HMS

9. Writ Pemilikan bertarikh 5.6.2017, Notis Bailif bertarikh 20.7.2017 dan Notis Penyitaan dan Inventori adalah perintah Mahkamah yang sah.

10. Mahkamah tiada kuasa untuk mendengar semula perkara yang sama dan prinsip 'functus officio'terpakai.

11. lsu yang sama telah didengar di Mahkamah Tinggi dalam rayuan berkaitan penangguhan perlaksanaan Penghakiman Terus dan telah ditolak. Alasan Keputusan HMT Alasan (i) - Isu Penghakiman Terus tidak di ekstrak dalam bentuk yang ditetapkan iaitu Borang 75, Aturan 42 Kaedah 5 KKM 2012.

12. Penghakiman Terus mula berkuatkuasa dari tarikh ianya ditarikhkan iaitu pada 13.4.2017. Penghakiman telah difailkan oleh Plaintif pada 21.4.2017 dan dimeteraikan.

13. Permohonan Defendan telah menjadi akademik kerana Writ Pemilikan, Notis Bailif dan Notis Penyitaan dan Inventori telah dilaksanakan dengan sempurna pada 3.8.2017 dan milikan kosong telah diserahkan kepada, plaintif pada 3.8.2017.

14. Defendan juga telah merayu terhadap Penghakiman Terus yang dikatakan tidak mematuhi Aturan 46 Kaedah 4. Defendan tidak dibenarkan untuk approbate dan reprobate. Ini menunjukkan tindakan mala fide oleh Defendan untuk memprejudiskan proses perlaksanaan Plaintif. 13

15. Isu ketidakpatuhan Aturan 46 Kaedah 4 juga tidak ditimbulkan semasa proses perlaksanaan dan semasa Penghakiman diserahkan kepada Defendan. Defendan kini di estop dari mencabar Penghakiman tersebut. Alasan (ii) - Isu samada Kebenaran untuk perlaksanaan diperolehi melalui misrepresentasi fakta bahawa terdapat Penghakiman yang diekstrak menyebabkan Writ Pemilikan tidak dimeteraikan menurut Aturan 46 Kaedah 4(a)(i) yang seterusnya menyebabkan Writ Pemilikan, Notis Bailif dan Notis Penyitaan dan Inventori adalah tidak sah

16. Isu ini telah diputuskan oleh Mahkamah Tinggi dalam permohonan Defendan untuk penggantungan perlaksanaan pada 2.8.2017.

17. Penghakiman Terus telahpun difailkan pada 21.4.2017 dan dimeteraikan. Oleh itu Penghakiman adalah teratur.

18. Isu ini juga tidak ditimbulkan semasa Penghakiman diserahkan kepada Defendan. Defendan kini di estop untuk menimbulkan isu tersebut.

19. Rayuan Defendan di Mahkamah Tinggi untuk penggantungan perlaksanaan telah ditolak pada 4.10.2017 dan isu-isu yang sama telah diputuskan. Oleh itu, prinsip estoppel, res judicata dan functus officio terpakai.

20. Writ Pemilikan, Notis Bailif dan Notis Penyitaan dan Inventori adalah teratur dan sah. 14 Isu (iii) - Isu samada Defendan adalah pemilik beneficial premis No. 38 dan 40 tersebut.

21. Defendan menyatakan telah membelanjakan wang yang banyak untuk mengubahsuai premis tersebut sehingga menjadi satu premis yang tidak boleh dipisahkan dari segi struktur dan fungsi.

22. Isu pemilikan benefisial ini telah diputuskan oleh Mahkamah Rayuan. Oleh itu Defendan di estop dari membangkitkan isu yang sama. Alasan (iv) - Isu Writ Penyitaan dan Penjualan tidak dimeteraikan mengikut Aturan 45 Kaedah 1.

23. Isu ini tidak dibangkitkan di Mahkamah Sesyen semasa perlaksanaan Writ tersebut. Defendan tidak boleh merayu terhadap isu yang tidak ditimbulkan di Mahkamah Sesyen.

24. Aturan 45 Kaedah 3(4) KKM tidak menghalang penggunaan Writ Pemilikan untuk perlaksanaan penghakiman dalam bentuk bayaran kewangan.

25. Bailif dibenarkan untuk membuat perlaksanaan ke atas harta Defendan untuk melaksanakan penghakiman untuk wang sejumlah RM126,809.56 yang diperintahkan dibayar kepada Plaintif.” [9] The Memorandum of Appeal for appeal ‘No. 362’ reads as follows: “NON-COMPLIANCE WITH RULES OF COURT 2012

1. The learned High Court Judge erred in law and in fact in dismissing the Appellant's Notice of Appeal against the decision of the Sessions Court dated 12.12.2017 in dismissing the Appellant's Notice of Application to 15 strike out the Writ of Possession granted by the Sessions Court on 5.6.2018 for recovery of vacant possession of premises Nos. 38 and 40, Jalan Pintal Tali, Penang (subject property), and for the recovery of arrears of rental, including double rental in the sum of RM110,000.00, together with interest and costs, and in so doing failed to appreciate the following:- - that the Leave To Issue Writ of Possession dated 22.5.2017 and the Writ of Possession itself dated 5.6.2017 had been obtained without a sealed Judgment for vacant possession being extracted as prescribed under Order 42 rule 5 of the Rules of Court, 2012; - that in the absence of a judgment in Form 75 as prescribed under Order 42 rule 5 of the Rules of Court, 2012, and extracted following the Order of the Sessions Court dated 13.4.2017 allowing the Respondent to enter final judgment against the Appellant, the Writ of Possession dated 5.6.2017 had not been sealed in compliance with Order 46 rule 4(4)(a)(i) of the Rules of Court, 2012; - that in the light of the provisions of the Rules of Court, 2012, a subsidiary legislation, the Writ of Possession dated 5.6.2017, the Bailiff Notice dated 20.7.2017 and the 'Notis Penyitaan Dan Inventori’ dated 20.7.2017 issued by the Court Bailiff are invalid for purposes of recovery of vacant possession of the subject property and for the sum of RM126, 809.59 pursuant to the Writ of Possession; - that in the absence of a final judgment for vacant possession as prescribed under Order 42 rule 5 of the Rules of Court, 2012, the leave to issue Writ of Possession and the execution of the Writ of Possession on 3.8.2017 are indeed an abuse of process of the Court; and - that in the absence of a Writ of Seizure and Sale as prescribed under Order 45 rule 1 of the Rules of Court, 2012, for purposes of recovery of arrears of 16 rental, let alone any praecipe filed for Writ of Seizure and Sale, the execution of the Notice of Seizure and Inventory for the recovery of arrears of rental on 3.8.2017 is an abuse of process of Court. VIOLATION OF APPELLANT'S PROPRIETARY RIGHT IN ADJOINING PROPERTY

2. The learned High Court Judge erred in law and in fact in failing to appreciate that the Writ of Possession dated 5.6.2017 is in violation of the Appellant's proprietary right in premises No. 42, Jalan Pintal Tali, Penang on Lot No. 290 (the adjoining property) in that the recovery of possession of the subject property could not be effected given the following:-

(ii) that the Appellant's access to the 2nd and 3rd floors of the adjoining property is dependent upon access through the subject property having regard to the following undisputed facts:- - the party walls on the ground floor, 1st floor, 2nd floor and roof-top separating the adjoining property from the subject property had been substantially removed; - the staircase in the adjoining property had been altered and provides access to the first floor only, and that the second floor and roof-top thereof are only accessible via the reconstructed staircase in premises No. 40, Jalan Pintal Tali, Penang (part of the subject property); 17 - the rooms on the 1st floor and 2nd floor of the adjoining property had been renovated and extended into the floors of premises No. 40, Jalan Pintal Tali, Penang (part of the subject property); and - the staircase in premises No. 38, Jalan Pintal Tali, Penang (part of the subject property) had been removed altogether and that the 2nd floor and the roof-top are only accessible via the said reconstructed staircase in premises No. 40, Jalan Pintal Tali, Penang (part of the subject property). DAMAGING CONSEQUENCES ON INTEGRITY HERITAGE BOUTIQUE HOTEL AND APPELLANT'S CLAIM

3. The learned High Court Judge erred in law and in fact in failing to appreciate that the said Writ of Possession would not only have damaging consequences on the integrity of the heritage boutique hotel situated on both the subject property and adjoining property, but the equitable considerations in favour of the Appellant's claim to be the beneficial owner and/or bona fide purchaser for value of the subject property. SESSIONS COURT'S DECISION REFLECTING RESPONDENT'S CONTENTIONS

4. The learned High Court Judge erred in law and in fact in failing to appreciate that the Sessions Court in dismissing the Appellant's Notice of Application to strike out the said Writ of Possession had accepted the contentions raised by the Respondent notwithstanding that the contentions are misconceived in law and without merit for the following reasons that contrary to the Respondent's contention, the Notice of Application is not academic as at all material times of the execution of the Writ of Possession, Notice of Seizure and Inventory and the Bailiff's Notice on 3.8.2017, the Notice of Application to strike out the said Writ of Possession filed on 31.7.2017 was then pending and subsisting; 18 - that contrary to the Respondent's contention, an order for leave to enter final judgment is not an order nor judgment for vacant possession in Form 75 as prescribed under Order 42 rule 5 of the Rules of Court, 2012, and accordingly is not only in breach of the requirement of a final judgment or order for vacant possession for leave to issue Writ of Possession, but is in violation of the Practice Direction No. 4 of 2010; - that contrary to the Respondent's contention, the decisions of the Sessions Court, the High Court and the Court of Appeal in refusing stay of execution of the summary judgment, do not in any way validate the wrongful execution process nor do they nullify the Appellant's Notice of Application to strike out the Writ of Possession; - that contrary to the Respondent's contention, the Sessions Court is not 'functus officio' and would have the necessary jurisdiction to hear the Notice of Application to strike out the Writ of Possession; and - that contrary to the Respondent's contention, the issue as to whether the Respondent is entitled or justified to enforce the Writ of Possession is a live issue, and had not been previously determined or concluded by the High Court. ISSUES OWNERSHIP AND TITLE AND QUESTIONS JURISDICTION

5. The learned High Court Judge erred in law and in fact in failing to appreciate that the said Writ of Possession should not have been issued, given that there are pending and unresolved issues of ownership and title to the subject property and questions of jurisdiction of the Sessions Court vis-a-vis the jurisdiction of the High matters involving immovable property. 19 EXTRANEOUS MATTERS

6. The learned High Court Judge erred in law and in fact in allowing Counsel for the Respondent to include in her submission, matters which had no bearing on the Writ of Possession, including the following:- - the decisions and/or findings of the High Court in response to the issues or contentions raised by the Respondent when removing the caveat lodged by the Appellant on the subject property under Originating Summons No. PA- 24NCVC-301-03/2016, notwithstanding that the caveat is not a cause of action and had no bearing on neither the summary judgment nor the Writ of Possession; - post facto matters and decisions in respect of the dismissal by the Court of Appeal of the interim stay of the summary judgment and the Appellant's appeal against the High Court's refusal of stay of the summary judgment, and the dismissal by the High Court of the Appellant's Writ action against the Respondent and his family members under Penang High Court Civil Suit No. PA-22NCVC-92-05/2017, notwithstanding that the contentious or triable issues raised therein had not been determined by the Court of Appeal or the High Court. CONCLUSION

7. The learned High Court Judge erred in law and in fact in failing to appreciate that the said Writ of Possession is clearly without basis and an abuse of the process of Court in the face of the non-compliance of the relevant Rules of Court, 2012 and the severity or gravity of the contentious or triable issues raised, and in so doing failed to address or consider adequately the grounds or representations raised on behalf of the Appellant.” 20 [10] We have read the appeal records and the able submissions of the parties. After having given much considerations to the submissions of the respondent, we take the view that the appeal should be allowed. Our reasons inter alia are as follows:

(ii) We have read the submission of the learned counsel for the respondent which is anchored on indefeasibility doctrine. Indefeasibility doctrine may be good for rem rights but not for personam rights as personam rights will relate to relief as to damages and compensation. To put it mildly, rem right is related to who is the owner of the property. Personam right among others may relate to suitable compensation or damages, etc. as the case may be.

(iii) Even if we are wrong in our analysis and view, we take the view that this is a fit and proper case for the trial court to have invoked Order 14 rule 3 of Rules of Court 2012 (RC 2012) and ordered a trial of the claim. [See United Merchant Finance Berhad v. Majlis Agama Islam Negeri Johor [1992] 2 AMR 1561]. 21

(iv) Order 14 rule 3(1) of RC 2012 states:

3. “Judgment for plaintiff (O. 14, r. 3)

(1) Unless on the hearing of an application under rule 1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.” [11] There are a number of cases which had dealt with similar provision like Order 14 rule 3(1) of RC 2012 in Malaysia as well as outside the country. They are as follows:

1. In that case the plaintiff, a customer of the defendant, claimed that the defendant wrongly paid out on the cheques, which were purported to be issued by the plaintiff. On the facts it became evident that the cheques were duplicate copies fraudulently printed with the same serial numbers as the genuine and unused cheques supplied by the defendant. However, the signatures on the cheques were declared by expert evidence to have been traced from genuine signatures. The court held that the circumstances and audacity with which the fraud was carried out and the absence of an explanation by the directors of the plaintiff constitute 'some other reason' for a trial in terms of O. 14 r. 3(1). Further, the court stated that the circumstances disclosed called for further investigation.” [12] We take the view that both appeals must be allowed with costs. The writ action must be fixed for trial. We hereby order so. Dated: 03 October, 2019 sgd (DATUK DR. HJ. HAMID SULTAN BIN ABU BACKER) Judge Court of Appeal Malaysia. 24 Note: Grounds of judgment subject to correction of error and editorial adjustment etc. Counsel for Appellant: Mr. M. Thayalan [with Chong Jun Min] Messrs. Thayalan & Associates Advocates & Solicitors No. 24 (First Floor) Penang Street 10200 PULAU PINANG. [Ref: S133/2 & 132/2/SKH/2018/t/csh] Counsel for Respondent: Ms Karin Lim Ai Ching [with Tan May Xia] Messrs. Presgrave & Mathews Advocates & Solicitors 1st Floor, 2 Lebuh Pantai 10300 PULAU PINANG. [Ref: KLAC/TMX/20160336]