Shashidra Raj A/L Ghandi Rajan @ Shashiraaj A/L Ghandirajen v Yow Man Kong @ Senthil Kumar (BA-22NCvC-255-07/2020)

In the course of managing this case in preparation for trial, I scrutinized the pleadings filed, as well as the documents of the respective parties. I had reservations whether the reliefs prayed for by the Plaintiff could be sought in the present suit.

I was of the view that the suit can be disposed of summarily on a point of law and directed parties to address me on the issue whether the Plaintiff’s suit for the reliefs set out in paragraph 48 of the Statement of Claim can be maintained, based on the facts pleaded and the undisputed documents filed. 01/04/2024 13:51:01 BA-22NCvC-255-07/2020 Kand. 67 S/N 9bAvkDVwvUyS9noxvrsKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2

A history of litigation preceded the present suit. I do not need to concern myself with the merits of the antecedent suits, save to state the undisputed facts.

On 19.11.2014, to resolve a dispute over the sale and purchase of property between the Plaintiff’s parents and the Defendant, a Settlement Agreement was entered into between the parties. The terms inter alia stipulated that the Plaintiff and his parents acknowledge that an amount of RM 1,300,000.00 was due and owing to the Defendant. Of the amount owing, a sum of RM 850,000.00 was subsequently paid, leaving a balance sum of RM 450,000.00 still unpaid.

Simultaneous with the execution of the Settlement Agreement, the Plaintiff together with his parents and the Defendant also entered into a friendly loan agreement on 19.11.2014. The Plaintiff and his parents agreed that they were to repay the sum of RM 450,000.00 in five monthly instalments, the first was to commence on the date of the Settlement Agreement, i.e 19.11.2014, and the last instalment was to be paid on 19.4.2015. However, the Plaintiff and his parents defaulted in their obligations to repay the said sum.

Premised on their default, on 16.7.2015 the Defendant filed a suit in the Kuala Lumpur Sessions Court vide Suit No: B52NCC-510- 07/2015 (“Suit 510”) against the Plaintiff and his parents to recover the sum of RM 450,000.00. S/N 9bAvkDVwvUyS9noxvrsKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

Subsequent to filing the suit, the Plaintiff applied for summary judgment of its claim. The application was however dismissed by the Sessions Court on 4.12.2015. The Defendant appealed to the High Court against the decision.

On 17.6.2016, the High Court of Kuala Lumpur allowed judgment to be entered against the Plaintiff and his parents for the sum of RM 450,000.00 with interest at 5% from 21.5.2015 until full settlement.

The Plaintiff and his parents then appealed to the Court of Appeal, but were unsuccessful. Their appeal was dismissed on 13.2.2017. The dismissal of the appeal meant that the Defendant had succeeded in his suit filed in the Sessions Court.

Consequent upon the decision in Suit 510 and his failure to pay the judgment sum, the Plaintiff was adjudicated a bankrupt on 9.3.2017. He attempted to set aside the adjudication order through various court proceedings but failed.

Meanwhile, notwithstanding the finality of Suit 510, on 1.6.2018, the Plaintiff’s parents filed a suit against the Defendant in the High Court of Shah Alam vide Suit No. BA-22 NCVC-275-06-2018 (“Suit 275”) to set aside the decision of the Sessions Court in Suit 510 on the grounds that the Defendant had concealed the fact that he was an unlicensed moneylender. It was alleged that the Sale and Purchase Agreement upon which the parties executed the Settlement Agreement, was in fact a moneylending transaction. S/N 9bAvkDVwvUyS9noxvrsKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Consequently, the judgment in Suit 510 was illegally obtained on these grounds.

After obtaining the requisite sanction from the Director General of Insolvency to prosecute this action, the Plaintiff then filed the present suit. Upon a perusal of his Statement of Claim, it would appear that his cause of action is similar to that of his parents in Suit 275. He alleged that the decision in Suit 510 was procured by fraud as the Defendant failed to disclose that the purported Sale and Purchase Agreement which his parents entered into with the Defendant was in fact a moneylending transaction. In addition, the Defendant was, at the material time, an unlicensed moneylender, hence the Settlement Agreement entered into, and upon which Suit 510 was premised, cannot be enforced.

On 10.2.2022, Suit 275 was decided by the learned Judicial Commissioner of the High Court at Shah Alam after a full trial of the matter. He ruled in favor of the Plaintiff’s parents by setting aside the judgment of the Sessions Court in Suit 510.

The Defendant appealed to the Court of Appeal. On 12.12.2022, the Court of Appeal allowed the appeal and set aside the decision of the learned Judicial Commissioner. The effect of the decision is that the decision in Suit 510 is maintained. S/N 9bAvkDVwvUyS9noxvrsKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

From the Statement of Claim in the instant suit, it is clear that the Plaintiff seeks to set aside the judgment in Suit 510 on grounds of fraud, by relying on the events in the litigation process. In the circumstances, I was of the view that it would be expedient to resort to the provisions of Order 33 to dispose of the present suit, the relevant provisions are set out below, Time of trial of questions or issues (O. 33, r. 2)

The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated. Determining mode of trial (O. 33, r. 3)

(1) In every action begun by writ, an order made at the pre-trial case management shall determine the mode of trial; and any such order may be varied by a subsequent order of the Court made at or before the trial.

In any such action, different questions or issues may be ordered to be tried by different modes of trial and one or more questions or issues may be ordered to be tried before the others. S/N 9bAvkDVwvUyS9noxvrsKA Dismissal of action after decision of preliminary issue (O. 33, r. 5)

If it appears to the Court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just. [16] The above provisions taken cumulatively, allows me to direct this suit to be determined by answering the issue posed whether the Plaintiff’s suit is maintainable based on his own pleadings. I also directed counsels to file written submissions to address the question posed. [17] As Suit 510 had been conclusively determined, I was of the preliminary view that the principle of res judicata applied to bar the Plaintiff’s claim. I was also of the view that the decision on the question, if answered affirmatively, would effectively dismiss the suit filed by the Plaintiff. Analysis and decision of this court [18] In determining the question posed, I had considered the pleadings filed, particularly the Statement of Claim and the relevant cause papers which were included in the Defendant’s Bundle of Documents. As they are court documents, there ought not to be any dispute on the contents, which speaks for itself. S/N 9bAvkDVwvUyS9noxvrsKA [19] Reverting to the Statement of Claim, the crux of the Plaintiff’s cause of action is contained in paragraphs 45 and 46. For ease of reference, the paragraphs are set out below (based on the English translation filed by the Plaintiff),

The Plaintiff will contend that the Judgment dated 17- 2-2016 against the Plaintiff’s father and mother and the Plaintiff is irregular, null and void and unenforceable as it was obtained by fraud, deception and undue influence of the Defendant and by concealing the fact that the Plaintiff’s father had paid interest amounting to RM 363,000. PARTICULARS OF FRAUD OF THE DEFENDANT a) Failing to plead in the said Sessions Court suit that the Settlement Agreement dated 19-11-2014 was entered into pursuant to an alleged Loan Agreement for RM 600,000 where interest was charged at the rate of RM 33,000 a month; b) Failing to inform the Sessions Court that the Defendant had charged interest on the said loan in contravention of the Money Lenders Ordinance 1951; c) Failing to disclose in the Sessions Court suit that the Defendant had charged and received the sum of RM 363,000.00 as interest from the Plaintiffs; S/N 9bAvkDVwvUyS9noxvrsKA d) Entering Judgment for RM 450,000.00 without disclosing that the Defendant had received RM 363,000.00; e) Lodging a Caveat on the said property wherein the Defendant has falsely alleged he had given a loan of RM 1.5 million to the Plaintiffs; f) Misleading the High Court and Court of Appeal by failing to disclose that the Settlement Agreement was based on an illegal money-lending transaction of RM 600,000.

The Plaintiff contends that the Judgment dated 17-2- 2016 in the said Sessions Court suit ought to be set aside pursuant to Section 44 of the Evidence Act 1950 and the Inherent Jurisdiction of the Honourable Court on the grounds that the same was obtained by deliberate fraud and deception practiced upon the Sessions/High Court and Court of Appeal. [20] The Plaintiff has cited the provisions of section 44 of the Evidence Act, 1950 as its legal basis for its cause of action. Section 44 provides, Fraud or collusion in obtaining judgment or incompetency of court may be proved S/N 9bAvkDVwvUyS9noxvrsKA

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 40, 41 or Evidence 45 42, and which has been proved by the adverse party, was delivered by a court not competent to deliver it or was obtained by fraud or collusion. [21] The above provision recognizes a cause of action commenced to impeach a judgment on grounds of fraud or collusion. In Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang Darul Makmur & Anor [2016] 3 MLJ 1, the Federal Court explained that the requisite proof of fraud if section 44 is relied on, is as follows, Our view is that the fraud of which s 44 of the Act speaks refers to an actual fraud and not constructive fraud ie fraud practised by the other side must have prevented the respondents from placing their case before the court. [40] The fraud must be actual positive fraud, a meditated and intentional contrivance to keep the parties and the court in ignorance of the decree by the contrivance (see Patch v Word). [41] The earlier judgment cannot be impeached or set aside on a mere general allegation of fraud. It must be shown with sufficient details how, when, where and in what way the alleged fraud was committed. [22] The Federal Court further held that where a challenge in reliance on section 44 of the Evidence Act 1950 is mounted, it is inappropriate to summarily dismiss the Plaintiff’s suit on a striking out application as the issue of fraud which may raise difficult questions of law ought to be tested and determined at a trial. S/N 9bAvkDVwvUyS9noxvrsKA [23] Whilst I am guided by the principles enunciated, they apply only if the factual matrix of the Plaintiff’s case falls within its application. I am of the view that the Plaintiff’s reliance on section 44 is wholly misconceived for the following reasons. [24] Firstly, the Plaintiff’s particulars of fraud are absurd. The Plaintiff has pleaded various failures on the part of the Defendant, which is premised on his failure to disclose various aspects of the illegal moneylending transaction. It makes no sense for the Defendant to disclose that he was involved in an illegal moneylending transaction. That would only cause his claim to be defeated. I find the particulars of fraud, in the manner it was framed, to be preposterous. [25] Secondly, the Defendant had, at all material times taken the position that parties entered into a Settlement Agreement based on the dispute over a Sale and Purchase Agreement of a property. As far as the Defendant was concerned, in Suit 510, he sued on the breach of the Settlement Agreement. There was no reason for the Defendant to disclose that the Sale and Purchase Agreement entered into with the Plaintiff’s parents resembled that of a moneylending transaction. [26] Thirdly, even if the particulars of fraud as pleaded can be excused for its lack in drafting, I am of the view that issues pertaining to illegal moneylending transaction ought to have been raised in Suit

In other words, these issues belonged to the domain of Suit 510. S/N 9bAvkDVwvUyS9noxvrsKA [27] Having perused the affidavit filed in opposition to the application for summary judgment in the Sessions Court, I found the Plaintiff to have in fact raised the moneylending issue even if he did not specifically state the illegality point. It is not now open for the Plaintiff to attempt to resurrect the moneylending point albeit illegality when Suit 510 had already been determined with finality in the Court of Appeal. [28] This then brings me to the application of the res judicata principle. The judgment of the Federal Court in Orchard Circle Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Ors [2021] 1 CLJ 1 is particularly instructive on the where it held, [80] The thrust of the doctrine is to prevent a party from re-litigating an issue or a defence which has already been determined (known as cause of action estoppel or issue estoppel) or which could have previously been litigated. The latter principle had been established in the case of Henderson v Henderson (1843) 3 Hare 100) and ensured, as a matter of important public policy, the finality of judgments so as to prevent a party from being vexed twice and a waste of judicial resources. As it is not always easy to identify where one concept begins and another ends, Lord Sumption (in delivering the unanimous judgment of the Supreme Court) in the Virgin Atlantic case gave some clarification to the term with identifying the six principles which make up the doctrine, which are:

a party is prevented from bringing subsequent proceedings to challenge an outcome that has already been decided (cause of action estoppel); S/N 9bAvkDVwvUyS9noxvrsKA

if a claimant succeeds in the first action and does not appeal the outcome, he may not bring a subsequent action on the same cause of action (ie to recover further damages);

the doctrine of merger treats a cause of action as having been extinguished once judgment has been provided and accordingly the claimant’s only right is the judgment itself;

a party may not bring subsequent proceedings on an issue that has already been determined (issue estoppel);

a party may not bring subsequent proceedings which should and could have been dealt with in earlier proceedings (the ‘Henderson v Henderson principle’); and

there is a general procedural rule against abusive proceedings. [29] The illegality point which the Plaintiff now attempts to raise is caught by the issue estoppel principle best expressed by Wigram VC in the case of Henderson v Henderson (1843) 3 Hare 100 at p 115 as follows, The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence might have brought forward at the time. (See also : Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189). [30] The Plaintiff could have raised the illegality point in Suit 510 when the Defendant sued on breach of the Settlement Agreement. If he S/N 9bAvkDVwvUyS9noxvrsKA failed to do so for reasons best known to himself, he cannot now attempt to raise it by vexing the Defendant in a different suit. This court cannot countenance litigation being brought in instalments. [31] I now refer to the reliefs sought in paragraph 47 of its Statement of Claim as follows:- a) an Order that the Judgment dated 17-2-2016 of the Sessions Court at Kuala Lumpur (Writ No. B52NCC- 510-07/2015) against the Plaintiff be set aside; b) an Order and Declaration that the Settlement Agreement dated 19-11-2014 be set aside; c) an Order and Declaration that the signature of the Plaintiff in the Settlement Agreement dated 19-11- 2014 is not that of the Plaintiff; d) an order for assessment of damages be made against the Defendant; e) an order for exemplary and/or aggravated damages be made against the Defendant; f) costs on an indemnity basis; g) further and/or other relief this Honourable Court deems fit and just. S/N 9bAvkDVwvUyS9noxvrsKA [32] Reliefs in paragraph (b) and (c) pertain to matters which should have been raised in Suit 510. The Plaintiff cannot be allowed a second bite at the proverbial cherry to ventilate an issue he ought to have raised, but failed. The facts upon which he alleged illegality are clearly matters within his knowledge at the time of Suit 510. To allow him to do so at this stage would be tantamount to an abuse of the process of the court, which the principle of res judicata was intended to avoid. [33] The Court of Appeal has since delivered its grounds of judgment in the Suit 275 filed by the Plaintiff’s parents. In reversing the judgment of the High Court which did not consider res judicata applicable, the Court of Appeal found otherwise. Justice Hadhariah (JCA) held, [79] It cannot be denied that the issue of loan transaction and illegal moneylending now raised by the respondents are so clearly part of the subject matter of litigation and so clearly could have been raised in Suit 150. The Sale and Purchase Agreement, the Settlement Agreement as well as other documents were in the possession of the respondents. The respondents had legal representation. It was well within the respondents’ knowledge as to what are the payments for when they paid the appellant. They knew whether or not the payments are payments for interest charged by the appellant. Knowing fully well that a litigant had only one opportunity to put forward their case, the respondents had an opportunity to plead illegality. They should have brought forward their case in whole in the earlier suit for the court to determine whether S/N 9bAvkDVwvUyS9noxvrsKA or not the impugned transaction is a genuine sale and purchase. But they chose not to plead illegality. The respondents also had the opportunity to amend their statement of defence before the summary judgment application is heard and disposed of. But they did not amend their statement of defence. Only after the previous judgment has been entered more than a year, the respondents filed this present suit accusing the appellant of misleading the earlier court for not telling it is illegal moneylending. Parties have gone through the legal process in the earlier suit right up to the Court of Appeal. The law says there must be finality in litigation. The law also say a party should not be vexed twice. The Previous Judgment is a final judgment. The appellant has been vexed twice. In the circumstances of the case, we hold estoppel by res judicata in the broader sense, applies. We cannot permit the respondents to re-open the same subject matter again. [34] The Court of Appeal thereupon held the suit filed by the Plaintiff’s parents to be an abuse of the process of the court. [35] Similarly, the Plaintiff’s conduct in filing the present suit having exhausted all his avenues available to him in Suit 510, is equally contumelious. In my view, he must not be allowed to prevent the Defendant from enforcing the judgment duly obtained. S/N 9bAvkDVwvUyS9noxvrsKA Conclusion [36] For the foregoing reasons, I find that the Plaintiff’s case, based on his pleadings, has no leg to stand on from the start. For this reason, I find it to be a waste of judicial time and resources if this matter were to proceed to trial. The question posed must be answered in the negative. The Plaintiff’s suit is not maintainable. [37] Consequently, the Plaintiff’s case is hereby dismissed with costs of RM 10,000 to be paid to the Defendant. Dated : 29th day of March 2024 -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Plaintiff : Mr. Perumal Sunderan Messrs. Y S Woo & Proctor Counsel Defendant : Miss. Satvinder Kaur Messrs. Satvinder K & Associates S/N 9bAvkDVwvUyS9noxvrsKA