Shashi Raj A/L Mohan v 1. ) Dato Rosal Azimin Bin Ahmad (WA-22NCC-68-02/2025)

DATO’ ROSAL AZIMIN BIN AHMAD …DEFENDANTS (IC No.: 750113-10-5355)

TETUAN SHAMSUDDIN & CO (Disaman sebagai suatu firma guaman)

[Enclosure 12 Striking out of claim against D2]

The defendants applied to strike out the plaintiffs’ Writ and Statement of Claim [“SOC”] against the 2nd defendant [“D2’]

The basis for the striking out is that the plaintiff pleaded in the SOC-i. That the debt is owed by the 1st defendant [“first defendant or D1”] - [and not D2] - to the plaintiff. [See SOC at paragraphs 5 and 6]; ii. The loan monies were merely deposited into the client’s account of D2. [See SOC at paragraph 7]; iii. Representations were made by D1 [and not D2] to the plaintiff that D1 would repay the monies. [See SOC at paragraph 9]; and iv. D1 only repaid part of the loan. [See SOC at paragraph 12].

On 21-10-2025, 1 allowed the striking out by D2 as no cause of action is pleaded against D2.

On 03-11-2025, the plaintiff filed a Notice of Appeal to the Court of Appeal. These are my Grounds of Decision. Parties

The plaintiff and D1 are Malaysian citizens.

D2 is Tetuan Shamsuddin & Co (Sued as a law firm). D2 is a law firm. Background Facts

The plaintiff submitted in his Written Submissions Enclosure 25 as follows- i. The first defendant approached the plaintiff and requested a loan in the sum of RM 2,500,000.00 (“Principal Sum”). [paragraph 9]; ii. It was represented to the plaintiff, by the first defendant, that the Principal Sum would be utilised for investment purposes and would subsequently be returned to the plaintiff. [paragraph 10]; iii. The first defendant requested that the Principal Sum be disbursed and deposited by the Plaintiff to the client account of the second defendant’s firm (“Client Account”). [paragraph 10]; iv. Based on various representations given by the first defendant, the plaintiff transferred the Principal Sum into the second defendant’s Client Account. [paragraph 11]; v. The transfer of the Principal Sum were made pursuant to the plaintiff’s reliance on the various representations given by the first defendant to the plaintiff, that the Principal Sum would be duly returned to the plaintiff on a specific date. [paragraph 12]; and vi. The first defendant, via his email dated 28-02-2022 to the plaintiff [“Confirmation Letter”] [paragraph 14]– a. Acknowledged receipt of the Principal Sum from the plaintiff; b. Acknowledged that the first defendant had taken the Principal Sum from the plaintiff; c. Agreed to return/refund the Principal Sum within a period of four (4) months, i.e. on or before the end of June 2022; and d. Acknowledged that the Confirmation Letter remains valid until the first defendant has fully paid and/or settled the amount owed to the plaintiff.

The plaintiff alleged D1 failed to repay the whole sum. D1 alleged he had repaid the whole sum.

The plaintiff filed this suit against D1 and D2. Striking out application

The defendants applied to strike out the plaintiffs’ Writ and SOC against D2 pursuant to Order 18 rule 19(1)(a) (b), (c) and (d) of the ROC 2012. The law on striking out under Order 18 rule 19 ROC 2012

Order 18 rule 19 ROC 2012 needs no introduction to the litigation bar. It reads as follows-Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

A plaintiff resisting a striking out application will invariably rely on the 1993 case of Bandar Builder Sdn Bhd & 2 Ors v United Malayan Corporation Bhd [1993] 4 CLJ 7, SC [“Bandar Builder”] at 11 e – h, where Mohamed Dzaiddin bin Hj Abdullah SCJ [delivering judgment of the court] said-The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it “obviously unsustainable” (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA). It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA.). The authorities further show that if there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 3 (which is in para materia with our O. 33 r. 2 Rules of the High Court) (Hubbuck v. Wilkinson) (supra). The Court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable. [Emphasis added]

As to how a court can be “satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable”, the following principles distilled from decided cases are useful- i. Whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but that when the case argued on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success. [See Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 CLJ 257, CA [“Pengiran Othman Shah Pengiran Mohd Yusoff”], per Siti Norma Yaakob JCA] ii. Where the affidavit evidence discloses a dispute of facts, such facts must be analysed and if they are found to be inconsistent with undisputed contemporary documents or inherently improbable in themselves, the court is entitled to reject those facts and proceed upon the undisputed contemporaneous documentary evidence. A trial of the action will not add anything more. [See Pengiran Othman Shah Pengiran Mohd Yusoff, per Siti Norma Yaakob JCA and Tan Ah Tong v Perwira Affin Bank Bhd & Ors [2002] 5 MLJ 49; [2002]1 AMR 102; [2001] 7 CLJ 500, HC [“Tan Ah Tong”], Abdul Malik Ishak J]. iii. The court must submit the evidence to critical examination. If that leads to the conclusion that the action could not possibly succeed it should be struck out. [See Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1, Privy Council, per Lord Diplock]

In 2019, the Federal Court in Tony Pua Kiam Wee v Government of Malaysia and another appeal [2019] 12 MLJ 1, FC [“Tony Pua Kiam Wee”] said- [39] It may well be the case that a claim is pleaded in such a manner that the factual matrix is scandalous or so frivolous or vexatious that it can give rise to no other inference than that it is wholly indefensible or unsustainable. This would be plainly discernible on the face of a claim. Such pleas or averments would fall for striking out under one of the other limbs of O 18 r 19 and/or the inherent jurisdiction of the court. [Emphasis added]

In Tan Ah Tong, Abdul Malik Ishak J struck out a writ under Order 18 rule 19 of the previous Rules of the High Court 1980. His Lordship after a wide-ranging survey of the jurisprudence said-On striking out, the Court of Appeal speaking through Siti Norma Yaakob JCA (now FCJ) succinctly laid down the law in the case of Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v. Karambunai Resorts Sdn

Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 CLJ At pp. 265 to 266 of the report, her Ladyship in refined words had this to say: The discretionary power to dismiss an action summarily under O. 18 r. 19 and under the inherent jurisdiction of the court is a drastic power which should only be exercised in plain and obvious cases, as the effect of the exercise of such a power is to shut out the plaintiff altogether from pursuing his claim. (See Tractors (M) Bhd v. Tio Chee Hing [1975] 2 MLJ 1). Whether a case is plain or obvious does not depend upon the length of time it takes to argue the case, but that when the case argued on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success. (See Mckay & Anor v. Essex Area Health Authority & Anor [1982] 2 QB 1166; [1982] 2 All ER 771; [1982] 2 WLR 890). When a question of law becomes an issue, this in itself will not prevent the court from granting the application, for as long as the court is satisfied that the issue of law is unarguable and unsustainable, it may proceed to determine that question. (See Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400). Likewise, where the affidavit evidence discloses a dispute of facts, such facts must be analysed and if they are found to be inconsistent with undisputed contemporary documents or inherently improbable in themselves, the court is entitled to reject those facts and proceed upon the undisputed contemporaneous documentary evidence. Finally, at p. 273 of the report, her Ladyship rounded it up by saying: As for the issue of law raised against the fourth respondent, since that can be determined from the undisputed documentary evidence, a trial of the action will not add anything more to what has already been canvassed before the trial judge and before us. If anything at all, if this suit proceeds to trial it will be with the hope that something may turn up at the trial but in the light of the affidavit and documentary evidence, we found that the respondents have no case to answer. Again, on striking out, Lord Diplock had this to say in Tractors Malaysia Bhd v. Tio Chee Hing [1975] 2 MLJ 1: The power to dismiss an action summarily without permitting the plaintiff to proceed to trial is a drastic power. It should be exercised with the utmost caution. Had the matter depended upon the contents of the Statement of Claim alone, their Lordships would have been loath to differ from the opinion of the Federal Court that, despite imperfections in drafting (which however might have been capable of cure by amendment) the Statement of Claim, at any rate as respects some of the claims to alternative relief, did raise questions of law that were sufficiently arguable to justify proceeding to trial. In refusing to submit the evidence to critical examination, however, the Federal Court erred in law. This makes it necessary for their Lordships to state briefly the facts disclosed by the evidence which, in their view, lead to the conclusion that the new action could not possibly succeed. and, clearly, there was a need in the present exercise to submit the evidence to critical examination. [Emphasis added] Is an agent liable for a contract entered into by his principal?

The law is clear that in the absence of any contract to that effect, an agent is not personally liable for the sums incurred by his client the principal based on section 183 of the Contracts Act 1950.

There are only three presumptions that an agent is personally liable. These are where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad, or where the agent does not disclose the name of his principal, or where the principal, though disclosed, cannot be sued.

The only way for the agent to avoid the operation of the three presumptions would be to contract out of the presumption of such personal liability either by way of express words, or by implication or inference from documents used, other evidence and surrounding circumstances. [See page 1179 of Pollock & Mulla’s Indian Contract and Specific Relief Acts (11th edition, Vol.2), the Supreme Court case of Medicon Plastic Industries Sdn. Bhd. v Syarikat Cosa Sdn. Bhd. [1993] 3 CLJ 344 SC and the Court of Appeal case of Exquisite Merge (M) Sdn. Bhd. v Life Publishers Bhd [1997] 3 CLJ 493 CA].

Section 183 of the Contracts Act 1950 reads as follows- Section 183. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary Such a contract shall be presumed to exist in the following cases:

where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

where the agent does not disclose the name of his principal; and

where the principal, though disclosed, cannot be sued.

Peh Swee Chin SCJ in the Supreme Court case of Medicon Plastic Industries Sdn. Bhd. v Syarikat Cosa Sdn. Bhd. [1993] 3 CLJ 344 at 346 held as follows: “Section 183 states the well-known ordinary rule of no personal liability for an agent, but this rule is subject to quite a few exceptions one of which is s. 183(a). If one reads and re-reads this proviso (a), it will still mean unmistakably that personal liability will attach to the agent as a matter of statutory presumption when a person is an agent acting on behalf of a principal in respect of a contract in regard to sale and purchase of goods from the principal who is resident abroad. This presumption of personal liability arises when the above elements are proved.” [Emphasis added]

Although limbs [b] and [c] of section 183 of the Contracts Act 1950 used the word “and”, it was clarified by the Court of Appeal in the case of Exquisite Merge (M) Sdn. Bhd. v Life Publishers Bhd [1997] 3 CLJ 493 that each of the limbs stands by itself. Mahadev Shanker JCA held as follows- “Each of the presumptions in s. 183(a), (b) and (c) stands by itself. Where a contract is being concluded by two parties, both within Malaysia, the rule is that if one of them is known by the other to be contracting as an agent then he cannot sue or be sued on the contract… In each of the three situations in s. 183 the law will presume that such a contract exists…” [Emphasis added] Court’s Analysis

Based on the above law, I remind myself while a striking out application should not be lightly granted based on Bandar Builder, I must scrutinise the plaintiffs’ case and the affidavit evidence and if “a claim is pleaded in such a manner that the factual matrix is scandalous or so frivolous or vexatious that it can give rise to no other inference than that it is wholly indefensible or unsustainable” [See Tony Pua Kiam], I should and must strike out the suit.

In my view, this is a suitable case to strike out the suit against D2 for the reasons below. i. The pleaded case of the plaintiff in the SOC and the plaintiff’s written submissions as set out above clearly show the agreement for the loan and the promise to repay were all between the plaintiff and D1 only; ii. The first defendant’s Confirmation Letter for the loan was sent on his personal email account and not on D2’s email account. [See plaintiff’s Affidavit Enclosure 6 PDF page 13]; iii. The first defendant’s Confirmation Letter was sent on D1’s letter head and not on D2’s letterhead. [See plaintiff’s Affidavit Enclosure 6 PDF page 15]; and iv. The only involvement of D2, pleaded by the plaintiff, is to receive the monies sent by the plaintiff. At best, D2 is only an agent for D1 to receive the monies. It is not the pleaded case of the plaintiff that the plaintiff is a stakeholder for the monies and had breached stakeholder’s duties. [See Statement of Claim Enclosure 2]. Based on section 183 of the Contracts Act 1950, D2 as an agent is not personally liable for the sums incurred by D1 the principal.

In conclusion, I am satisfied the plaintiffs’ claim against D2 is frivolous or vexatious to justify a striking out of the writ based on the principles in Bandar Builder.

I therefore allow the striking out of the claim against D2 with costs of RM 7,000 subject to allocatur. Dated: 10th November 2025 …………(signed)……………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Jasneeta Bhullar. Azmi Fadzly Maha & Sim (Kuala Lumpur) Counsel for 1st and 2nd defendants: Haris bin Md Nor. Adnan Sharida & Associates (Bandar Baru Bangi) CASES REFERRED TO: 1) Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274. 2) Bandar Builder Sdn Bhd & 2 Ors v United Malayan Corporation Bhd [1993] 4 CLJ 7, SC. 3) Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 MLJ 400. 4) Exquisite Merge (M) Sdn. Bhd. v Life Publishers Bhd [1997] 3 CLJ 493 CA. 5) Hubbuck v. Wilkinson [1899] 1 QB 86. 6) Medicon Plastic Industries Sdn. Bhd. V. Syarikat Cosa Sdn. Bhd. [1993] 3 CLJ 344 SC. 7) Norma Yaakob JCA and Tan Ah Tong v Perwira Affin Bank Bhd & Ors [2002] 5 MLJ 49; [2002]1 AMR 102; [2001] 7 CLJ 500, HC. 8) Pengiran Othman Shah Pengiran Mohd Yusoff & Anor v Karambunai Resorts Sdn Bhd (formerly known as Lipkland (Sabah) Sdn Bhd) & Ors [1996] 1 CLJ 257, CA. 9) Tony Pua Kiam Wee v Government of Malaysia and another appeal [2019] 12 MLJ 1, FC. 10) Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1. 11) Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA. LEGISLATION REFERRED TO: 1) Rules of Court 2012 Order 18 rule 19(1)(a) (b), (c) and (d). BOOKS REFERRED TO: 1) Pollock & Mulla’s Indian Contract and Specific Relief Acts page 1179 (11th edition, Vol.2).