WA-22NCC-863-12/2024
High Court of Malaysia13 Aug 2025
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“l Guarantee is an independent and co-extensive obligation under sections **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 5 of 12 79–81 of the Contracts Act 1950, unaffected by the JDS proceedings. D] WHETHER THE JID WAS REGULARLY OBTAINED”
“ith 3Lyon’s liability. The Plaintiff was entitled to pursue concurrent remedies. The principle in Azlin Azrai bin Lan Hawari v. United Overseas Bank (M) Bhd [2017] 5 MLJ 43 (COA) and section 8 of the Debtors Act 1957 makes clear that a JDS order does not bar other forms of execution. The Court of Appeal clearly held, i”
“hamed Hassan) v. Selina Chong bt **Note : Serial number will be used to verify the originality of this document via eFILING portal Page 6 of 12 Abdullah (Isteri Mendiang Hassan bin Ahmad, Si Mati) [2024] MLJU 1826, that a minor clerical error causing no prejudice does not vitiate regular proceedings.”
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Page 1 of 12 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DI DALAM WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN DAGANG) GUAMAN SIVIL NO.: WA-22NCC-863-12/2024 ANTARA SIM CHENG YOUNG (No. K/P: 670908-10-5287) … PLAINTIF DAN DATUK WIRA RANJEET SINGH SIDHU (No. K/P: 700201-03-5371) … DEFENDAN GROUNDS OF JUDGMENT (Enclosure 16)
1
This was the Defendant’s application under Order 13 rule 8 of the Rules of Court 2012 to set aside the Judgment in Default (“JID”) entered on 24.3.2025 in favour of the Plaintiff for RM4,369,520.55 (Enclosure 16) (“this Application”), being the amount guaranteed by the Defendant pursuant to a Personal Guarantee dated 6.9.2024 (“the Personal Guarantee”).
2
The Personal Guarantee was executed by the Defendant, who is a Director of 3Lyon Holdings Berhad (“3Lyon”), to secure payment of the sum due under a Consent Judgment dated 17.5.2024 (“Consent Judgment”) in Suit No. BA-22NCC-171- 12/2023 (“Suit 171”). In Suit 171, Sim Cheng Young (the Plaintiff herein) had sued 3Lyon, Datuk Wira Ranjeet Singh Sidhu (the Defendant herein), one Dato’ Haji Che Pin bin Samsudin, and Datuk Manibalan Kutty a/l Ragavan. The Consent Judgment was recorded between the Plaintiff and 3Lyon, whereby 3Lyon agreed to pay the Plaintiff the sum of RM 4,369,520.55 on or before 31.5.2024, with no order as to costs and without prejudice to the Plaintiff’s claim against the remaining Defendants.
3
Following 3Lyon’s failure to pay, the Defendant offered the Personal Guarantee to forestall immediate enforcement of the Consent Judgment in Suit 171. The Plaintiff agreed to forbear execution proceedings until 30.11.2024 on the Defendant’s undertaking to pay by that date. No payment was made, leading to this action and the entry of the JID on 24.3.2025. A]
4
In this Application the Defendant seeks to set aside the JID on grounds that: i) he was unaware of the proceedings and JID until 24.4.2025; Page 3 of 12 ii) the JID is irregular owing to a defect in the affidavit of service; iii) the Consent Judgment had been varied by a Judgment Debtor Summons (“JDS”) order against 3Lyon, precluding further enforcement; and iv) he has a bona fide defence that the Personal Guarantee lacks consideration and was obtained mala fide.
5
The Plaintiff opposes, contending that service was regular, the Personal Guarantee is valid and supported by forbearance as consideration, and that no defence on the merits has been shown. B]
6
The Defendant avers that he was not informed by his former solicitors, Messrs Irene Wong Chambers, of the filing of the Writ and hence failed to enter an appearance. He argues that the Affidavit of Service (Enclosure 9) is defective as it refers to service on “4.3.2024” when the Writ is dated 13.12.2024, rendering the JID irregular.
7
He further contends that the JDS order obtained against 3Lyon varied the Consent Judgment, relying on Mohd Kamal Omar v. United Overseas Bank (Malaysia) Bhd & Other Page 4 of 12 Appeals [2018] 5 CLJ 657, and that the Plaintiff cannot concurrently enforce against him under the Personal Guarantee. He also claims absence of consideration and alleges mala fide conduct in pursuing both 3Lyon and himself. C]
8
The Plaintiff in his Affidavit in Reply (Enclosure 19) asserts that the Writ and Statement of Claim were personally served on the Defendant on 4.3.2025 at the Shah Alam High Court and acknowledged by him. The wrong year in the affidavit is said to be a typographical error, later rectified by an Affidavit of Correction (Enclosure 18). The JID and subsequent service were likewise duly acknowledged (Enclosure 15).
9
The Plaintiff submits that the Personal Guarantee was executed voluntarily with full knowledge and supported by valid consideration, namely the Plaintiff’s forbearance from enforcement until 30.11.2024. The Plaintiff relied on the following cases: Osman bin Abdul Ghani & Ors v. United Asian Bank Bhd [1987] 1 MLJ 27 (SC), EON Bank Bhd (previously known as Oriental Bank Bhd) v. Mohd Yunus bin Alias & Ors [2010] 9 MLJ 587, and Chong Yoong Choy v. UOL Factoring Sdn Bhd [1996] 1 MLJ 421 (COA).
10
The Plaintiff further argues that the Personal Guarantee is an independent and co-extensive obligation under sections Page 5 of 12 79–81 of the Contracts Act 1950, unaffected by the JDS proceedings. D]
11
On the affidavit evidence, I find that service of the Writ and Statement of Claim was duly effected on the Defendant personally on 4.3.2025, acknowledged in writing (Enclosure 9 & 19 [Exhibit SS-2]). The JID was served and likewise acknowledged on 24.4.2025 (Enclosure 15). This can clearly be seen from the handwritten acknowledgment in the Plaintiff’s solicitors’ cover letter dated 19.12.2024 which states: “ACCEPTED SERVICE 4.3.2025 [signed] @ High Court of Shah Alam NCVC 11” (own emphasis added)
12
The reference to “2024” in the Affidavit of Service was plainly a typographical error, corrected by the Affidavit of Correction (Enclosure 18). Such clerical slips do not invalidate otherwise proper service. The principle is well settled in PP v. Chean Hua Sey [2008] 9 CLJ 657 and applied in Putri Shazana bt Megat Abdul Rahim (Wakil bagi majoriti Waris Waris Kadim Yang Sah Bagi: Harta Pusaka Si Mati, Siti Katijah bt Shaik Said: Harta Pusaka Si Mati Harris bin Hassan, Pentadbir dan Wakil Sah Bagi Harta Pusaka Si Mati Budi Kartini bt Mohamed Hassan) v. Selina Chong bt Page 6 of 12 Abdullah (Isteri Mendiang Hassan bin Ahmad, Si Mati) [2024] MLJU 1826, that a minor clerical error causing no prejudice does not vitiate regular proceedings.
13
Accordingly, I hold that the JID was regularly obtained, and the Defendant must therefore show a defence on the merits before the Court may exercise its discretion under Order 13 rule 8 ROC 2012. E] WHETHER THE JDS ORDER VARIED OR EXTINGUISHED
14
The Defendant’s reliance on Mohd Kamal Omar (supra) is misplaced. That case concerned premature execution before the payment date had lapsed and involved the same parties bound by the judgment. In contrast, the payment under the Consent Judgment in the present case was long overdue when the Personal Guarantee was invoked. The JDS order merely prescribed the mode of payment by instalments by 3Lyon and did not vary or extinguish the substantive judgment debt arising from the Consent Judgment.
15
In this regard paragraphs 3 and 4 of the Personal Guarantee clearly state as follows: “In exchange for this personal guarantee, you agree not to proceed with Judgment Debtor Summons dated 7.6.2024 against director or officer of 3Lyon and/or any enforcement proceedings against any of the Page 7 of 12 Defendants in the Action, and to keep the Action in abeyance until after 30 November 2024. I undertake to ensure the full payment of the said amount by no later than 30 November 2024, should 3Lyon fail to make the required payment. In the event that 3Lyon does not fulfil its payment obligations, I will make payment of the RM4,369,520.55 by the specified date. (own emphasis added)
16
Further, the Defendant’s obligation under the Personal Guarantee is independent and co-extensive with 3Lyon’s liability. The Plaintiff was entitled to pursue concurrent remedies. The principle in Azlin Azrai bin Lan Hawari v. United Overseas Bank (M) Bhd [2017] 5 MLJ 43 (COA) and section 8 of the Debtors Act 1957 makes clear that a JDS order does not bar other forms of execution. The Court of Appeal clearly held, inter alia, that “JDS is no bar to proceedings in execution” and “an order to pay by installments of a judgment debt does not prevent the execution of a judgment”.
17
In any event, the enforcement of a Personal Guarantee does not constitute execution of the Consent Judgment but rather the exercise of an independent contractual right vested in the Plaintiff to recover the sum which 3Lyon had undertaken to pay. The following passages from the Court of Appeal in Chong Yoong Choy (supra) is instructive and directly applicable to the present case: Page 8 of 12 “The answer to counsel’s second argument is to be found in the very guarantee which his client executed. Under cl 1 of that document, the appellant expressly undertook the obligations of a principal debtor. So it really does not matter what happened between the assignor (Prebore) and the debtor (Gunung Mewah). As far as the respondent is concerned, it entered into the factoring arrangement, encouraged, no doubt, by the appellant’s promise to play the role of surety as well as principal debtor, thereby assuring the respondent that he would answer the debtor’s default. Ought the appellant, having so encouraged the respondent to act, be permitted now to assert that the promise he gave, and upon the strength of which the respondent acted, is unenforceable for any number of reasons? We believe that justice and conscience move for a negative response to that question. It would, in our judgment, be entirely inequitable and unconscionable to permit the appellant to pursue such a course.” (own emphasis added)
18
Hence, this ground fails. F] WHETHER THE PERSONAL GUARANTEE IS SUPPORTED
19
The Defendant contends that the Personal Guarantee lacks consideration as the Plaintiff had already enforced the Consent Judgment. The evidence and correspondence, however, show Page 9 of 12 that the Plaintiff agreed to suspend enforcement until 30.11.2024 in reliance upon the Defendant’s undertaking. Such forbearance from immediate enforcement constitutes good consideration in law (Osman bin Abdul Ghani (supra)).
20
The Defendant, as Director of 3Lyon, was fully aware of the company’s default and voluntarily assumed personal liability. Applying sections 79–81 of the Contracts Act 1950 and the authorities of EON Bank (supra) and Chong Yoong Choy (supra), the Personal Guarantee is a binding and enforceable obligation. G] WHETHER THERE EXISTS A BONA FIDE DEFENCE ON
21
The Defendant’s allegation of mala fide conduct is unsubstantiated. The Plaintiff’s pursuit of both the principal debtor and the guarantor is expressly permitted by law and by the terms of the Personal Guarantee. No evidence of fraud, unfairness, or abuse of process has been shown.
22
Having found that the JID was regularly obtained, I have also addressed in the foregoing paragraphs each of the Defendant’s asserted defences, namely the alleged irregular service, the effect of the JDS order, the issue of consideration, and the allegation of mala fides. These defences, having been fully considered, disclose no bona fide or triable issue. They Page 10 of 12 are either technical in nature or contradicted by the documentary evidence. The Defendant’s failure to act promptly and the absence of any credible explanation for his non-appearance further militate against the exercise of discretion in his favour. H]
23
For the reasons stated, I dismissed this this Application in Enclosure 16 with costs. Dated this 27th day of October, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) JUDGE HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA Page 11 of 12 COUNSEL FOR THE PLAINTIFF : Alwin Rajasurya (Sabreena Binti Mohd Sab and Fatin Nadzirah Binti Hasan together with him) Messrs Alwin Rajasurya Unit 1305, Amcorp Tower, Amcorp Trade Centre, 18, Persiaran Barat, 46050 Petaling Jaya, Selangor Darul Ehsan Tel: 03-76137605 Email: general@arlegal.my COUNSEL FOR THE DEFENDANT : Pramjit Kaur Messrs Mann & Associates No. 57-2, Jalan Bandar Rawang 1, Pusat Bandar Rawang, 48000 Rawang, Selangor Darul Ehsan Tel: 03-60926300 Email: mann@mannadvocates.com LEGISLATION / RULES CITED Rules of Court 2012 ▪ Order 13 rule 8 Contracts Act 1950 ▪ Section 79 ▪ Section 80 ▪ Section 81 Debtors Act 1957 ▪ Section 8 Page 12 of 12
1
Azlin Azrai bin Lan Hawari v. United Overseas Bank (M) Bhd [2017] 5 MLJ 43
2
Chong Yoong Choy v. UOL Factoring Sdn Bhd [1996] 1 MLJ 421
3
EON Bank Bhd (previously known as Oriental Bank Bhd) v. Mohd Yunus bin Alias & Ors [2010] 9 MLJ 587
4
Mohd Kamal Omar v. United Overseas Bank (Malaysia) Bhd &
5
Osman bin Abdul Ghani & Ors v. United Asian Bank Bhd [1987]
6
PP v. Chean Hua Sey [2008] 9 CLJ 657
7
Putri Shazana bt Megat Abdul Rahim (Wakil bagi majoriti Waris Waris Kadim Yang Sah Bagi: Harta Pusaka Si Mati, Siti Katijah bt Shaik Said: Harta Pusaka Si Mati Harris bin Hassan, Pentadbir dan Wakil Sah Bagi Harta Pusaka Si Mati Budi Kartini bt Mohamed Hassan) v. Selina Chong bt Abdullah (Isteri Mendiang Hassan bin Ahmad, Si Mati) [2024] MLJU 1826
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