Sheela A/P George v 1. ) Radzali Bin Ahmad Koldi (BA-22NCvC-529-12/2024)

RADZALI BIN AHMAD KOLDI (NO. K/P: A2240557) …DEFENDAN PERTAMA

MAYBANK ISLAMIC BERHAD (NO. PENDAFTARAN SYARIKAT: 787435-M) …DEFENDAN KEDUA

The Plaintiff, who is the administratrix of her late father’s estate, has a valid grievance in commencing the present action. The Plaintiff’s late father, through a Sale and Purchase Agreement 18/08/2025 10:07:13 BA-22NCvC-529-12/2024 Kand. 45 dated 2 March, 2000 bought a house from the 1st Defendant for the sum of RM92,000.00.

To partially finance the purchase, the Plaintiff’s late father obtained a loan from the 2nd Defendant in the sum of RM25,000.00, with an additional RM463.00 imposed for takaful charges. The agreed repayment period was 15 years, with monthly instalments of RM245.00. By a letter dated 4 May 2018, the 2nd Defendant informed the Plaintiff’s late father that the loan had been fully settled and invited him to meet with the bank to discuss the release of the original title to the house.

To date, the title remained in the name of the vendor, namely the 1st Defendant, prompting the Plaintiff to commence the present action in seeking for the title of the house to be registered in the Plaintiff’s name. The Plaintiff has named two Defendants, Radzali bin Ahmad Koldi (the vendor) and Maybank Islamic Berhad (the lender) as the 1st and 2nd Defendants respectively.

This decision concerns a Notice of Application in Enclosure 12, that is, the 2nd Defendant’s application for the Plaintiff’s Amended Statement of Claim against it to be struck out pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012.

The predominant issue is whether this is a proper case for this Court to exercise it discretion to strike out the Plaintiff Amended Statement of Claim against the 2nd Defendant. The Plaintiff’s Claim against the 2nd Defendant

Based on the Amended Statement of Claim (in Enclosure 7), the Plaintiff’s claim against the 2nd Defendant is premised on the cause of action of negligence. The Plaintiff alleged that the 2nd Defendant was negligent in failing to take steps to transfer the original title of the house from the name of the 1st Defendant to the name of the Plaintiff’s late father.

The particulars of negligence of the 2nd Defendant can be broadly summarized as follows:

failure to deal with the issue as to why the said house was not transferred into the name of the Plaintiff’s late father and failure to register the Plaintiff’s late father as owner;

failure to inform the Plaintiff’s late father prior to the settlement of the loan;

failure to register a charge;

failure to complete the documentation for the transfer of ownership prior to making payment of the loan sum to the 1st Defendant; and

failed to complete the documentation following the regular process of a Sale and Purchase Agreement.

Plaintiff prayed for the 2nd Defendant to bear the cost of transfer, general damages amounting to RM200,000.00 and special damages amounting to RM5,000.00. The 2nd Defendant’s Contentions in Support of Its Striking Out

As noted, the 2nd Defendant’s application was made pursuant to Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012 and was premised on the following grounds: • That the Plaintiff has no reasonable cause of action against it and the claim is frivolous and vexatious and abuse of court process; • That it is not the duty of the 2nd Defendant to take steps to transfer the title of the house from the name of the 1st Defendant to the Plaintiff’s late father; • That pursuant to Clauses 1, 4 and 5 of the Sale and Purchase Agreement, it is for the 1st Defendant, the Plaintiff’s late father and Messrs Panneer & Co being solicitors acting for the Plaintiff’s late father in the sale and purchase transaction, upon completion of the sale and purchase transaction, to take steps and ensure that the title is to be transferred from the name of the 1st Defendant to the name of the Plaintiff’s late father; • That the Plaintiff is bound by the four corners of the Sale and Purchase Agreement (Wong Yee Boon v Gainvest Builders (M) Sdn Bhd MLJU 1970). The 2nd Defendant averred that “nowhere in the Sale and Purchase Agreement states that it is the duty of the 2nd Defendant to ensure that the title is to be transferred from the name of the 1st Defendant to the Plaintiff’s late father; • That the 2nd Defendant was not a party to the Sale and Purchase Agreement and as such, there was no duty for the 2nd Defendant to make sure that the title is transferred from the name of the 1st Defendant to the Plaintiff’s late father; • That the 2nd Defendant has merely given a loan to the Plaintiff’s late father to part finance the purchase of the house and in accordance with the documentation pertaining to the loan given, “it was never agreed between the 2nd Defendant and the Plaintiff’s late father that it shall be the 2nd Defendant’s duty to ensure that the name on the title is changed from the 1st Defendant to the Plaintiff’s late father”; and • That based on the above and following the principles enunciated in the case of Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd [1993] 3 MLJ 36, “it is obvious that the Plaintiff has no cause of action against the 2nd Defendant and this is a fit and proper case to be struck off.

The crux of the 2nd Defendant’s contention was that all matters pertaining to the registration of ownership into the Plaintiff’s late father’s name are set out in the Sale and Purchase Agreement of which the 2nd Defendant is not privy and those rights and obligations as set out in the Sale and Purchase Agreement “has nothing to do with the 2nd Defendant”. The Plaintiff’s Case in Opposing this Striking Out Application

The Plaintiff’s challenge to the 2nd Defendant’s application is based primarily on the grounds that first, the loan has been fully settled by the Plaintiff’s late father; second, the title remains in the 1st Defendant’s name; and third, the 2nd Defendant has violated the National Land Code in respect of transfer of ownership and creation of charge.

The Plaintiff also averred, inter alia, that: • The 2nd Defendant owes a fiduciary duty to the Plaintiff; • The Estoppel Doctrine is applicable; • This application is an afterthought; • There are complex questions of fact that warrant trial; • The 2nd Defendant failed to act in good faith; and • The relief sought can be granted if proven.

The main case relied by the Plaintiff is Bank Kerjasama Rakyat Malaysia Berhad v Emcee Corporation Sdn Bhd [2003] 2 AMR 177; [2003] 1 CLJ 625; [2003] 2 MLJ 408; [2003] 1 MLRA 7. Reliance was also made to the case of Bank Islam Malaysia Bhd v Adnan Bin Omar [1994] 3 CLJ 735; [2022] MLRHU 542 [1994] MLJU 221; [1994] 2 MLRH 63.

The Plaintiff refuted the allegation that her action was frivolous, vexatious or an abuse of the process of the court, arguing that such is only the case if “terdapat elemen niat jahat atau percubaan menyalahgunakan kuasa Mahkamah untuk tujuan yang tidak sah”. However, in this action initiated by the Plaintiff, it was argued that “Plaintif mempunyai tujuan yang sah, iaitu untuk menyempurnakan pemilikan harta pusaka si mati”. The Decision of this Court

In determining whether this application in Enclosure 17 ought to be allowed, this Court is bound to adhere to the well-established principles governing this aspect of practice and procedure. In determining whether the threshold for the striking out of a claim has been met, this Court has examined the pleadings (in the case of Order 18 rule 19(1)(a)) and the pleadings and evidence before the court (in the case of in the case of Order 18 rule 19(1)(b) and/or (d)).

On the argument by the Plaintiff that the 2nd Defendant has failed to register a charge, this Court finds this argument as lacking merit. Having examined the terms of the Sale and Purchase Agreement and the Letter of Offer dated 16 June, 2000, it is evident that the 2nd Defendant was entitled to select the form of security it deemed appropriate. The entry of a private caveat to protect its interests was neither irregular nor objectionable.

This Court has also considered the cases referred to and relied upon by the Plaintiff and is of the considered view that these cases are distinguishable and do not support the Plaintiff’s contention within the context of this striking out application.

Furthermore, this Court agrees with the 2nd Defendant that the grounds of estoppel, afterthought, and failure to act in good faith are irrelevant to the determination of the present application.

On the whole, this Court is of the considered view that the 2nd Defendant has satisfied the threshold set out under Order 18 rule 19(1)(a), (b), and/or (d) of the Rules of Court 2012.

Accordingly, the application in Enclosure 17 is allowed, with costs of RM8,000.00 awarded to the 2nd Defendant. Dated: 3 August, 2025 sgd (CHOONG YEOW CHOY) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsel: For the Plaintiff : K. Bagia Sri Devi a/p Krishnamoorthi (Messrs The Law Offices of Sri Bagia & Associates) For the for 2nd Defendant : Saladin bin Mohd Yasin (Messrs Saladin & Associates)