Sk Majumas Sdn Bhd v Muhammad Alif Bin Jalil (AP-A72NCvC-14-08/2024)

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

STANDARD CHARTERED BANK MALAYSIA BERHAD STANDARD CHARTERED SAADIQ BERHAD 21/09/2025 20:45:14 AP-A72NCvC-14-08/2024 Kand. 26 S/N zNuHODT9mk6zsIuy6/ygHw

BANK KERJASAMA RAKYAT MALAYSIA BERHAD … GARNISHEES GROUNDS OF JUDGMENT (Enclosure 19) INTRODUCTION [1] For the purpose of this judgment, the parties will be referred to as the Plaintiff and the Defendant. Where necessary in the context of the garnishee proceeding, the Plaintiff is the judgment creditor and the Defendant is the judgment debtor. [2] This is an appeal by the plaintiff. The appeal arises after this Court refused to allow the Plaintiff’s ex parte application in Enclosure 19. The ex parte application was brought under Order 49 of the Rules of Court 2012 (‘ROC’). The Plaintiff sought an ex parte garnishee order nisi against 26 banks as listed in the application (‘garnishees’). [3] Upon hearing, I dismissed the Plaintiff’s ex parte application and my reasons are set out below. BACKGROUND [4] On 17.10.2024, judgment in default of appearance was entered against the Defendant (Enclosure 7). The judgment sum was RM 23,671.94. S/N zNuHODT9mk6zsIuy6/ygHw AP-A72NCvC-14-08/2024 3 of 10 [5] The Defendant has not satisfied the judgment sum. No application to set aside the judgment has been filed. [6] On 18.06.2025, the Plaintiff filed an ex parte application under Order 49 ROC (Enclosure 19). The Plaintiff listed 26 banks as garnishees. A supporting affidavit was filed (Enclosure 20). The order sought to require the garnishees to show cause why any debt due or accruing due from them to the Defendant should not be applied in satisfaction of the judgment debt of RM 23,671.94 obtained by the Plaintiff against the Defendant. This ex parte application concerns only the first stage of garnishee proceedings namely the order nisi. [7] During the hearing of the application, the Court asked the learned counsel for the Plaintiff’s whether the application complied with the requirements of Order 49 ROC. This was because the affidavit did not contain any facts showing that the 26 garnishees were indebted to the Defendant nor did it state the sources of the deponent’s information or grounds for belief. [8] Learned counsel for the Plaintiff relied on the Court of Appeal decision in TESCO Stores (M) Sdn Bhd v Ananda Kumar Krishnan [2017] 5 CLJ 315 (‘TESCO Stores’). He submitted that according to the Court of Appeal, the ‘modern approach’ permits all financial institutions to be listed as garnishees and it is then for the banks to show cause whether they hold any monies for the Defendant. He further argued that this is not a ‘fishing expedition’ but an efficient mechanism to facilitate the enforcement of civil judgments. S/N zNuHODT9mk6zsIuy6/ygHw AP-A72NCvC-14-08/2024 4 of 10 [9] After considering the application, the supporting affidavit and oral submissions, this Court dismissed the Plaintiff’s ex parte application with no order as to costs. [10] Dissatisfied with this decision, the Plaintiff has now appealed to the Taiping High Court. PRINCIPLES [11] The relevant provisions of Order 49 ROC read as follows: “49. Garnishee proceedings

Attachment of debt due to judgment debtor (O. 49 r. 1)

Where a person (who is referred to as "the judgment creditor" in this Order) has obtained a judgment or order for the payment of money by some other person (who is referred to as "the judgment debtor" in this Order), not being a judgment or order for the payment of money into Court, and any other person within the jurisdiction (who is referred to as "the garnishee" in this Order), is indebted to the judgment debtor, the Court may, subject to the provisions of this Order and of any written law, order the garnishee to pay the judgment creditor the amount of any debt due or accruing due to the judgment debtor from the garnishee, or so much thereof as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.

An order in Form 97 under this rule shall in the first instance be an order to show cause, specifying the time and place for further consideration of the matter, and in the meantime attaching such debt as mentioned in paragraph

(1), or so much thereof as may be specified in the order, to answer the judgment or order mentioned in that paragraph and the costs of the garnishee proceedings. S/N zNuHODT9mk6zsIuy6/ygHw AP-A72NCvC-14-08/2024 5 of 10

In this Order, “any debt due or accruing due” includes a current or deposit account with a bank or other financial institution, whether or not the deposit has matured and notwithstanding any restriction as to the mode of withdrawal.

Application for order (O. 49 r. 2) An application for an order under rule 1 shall be made ex parte by a notice of application supported by an affidavit in Form 98-

identifying the judgment or order to be enforced and stating the amount remaining unpaid under it at the time of the application; and

stating that to the best of the information or belief of the deponent the garnishee (naming him) is within the jurisdiction and is indebted to the judgment debtor and stating the sources of the deponent's information or the grounds for his belief.”. (Emphasis added). [12] The procedure under Order 49 ROC was explained by Suriyadi FCJ in Malaysian International Trading Corporation Sdn Bhd v RHB Bank Bhd [2016] 2 CLJ 717 and the principles may be summarised as follows:

Nature of garnishee proceedings:

Garnishee proceedings are a form of post-judgment execution.

(ii) They allow a judgment creditor to attach debts owed by third parties (garnishees) to the judgment debtor.

The process has two stages: S/N zNuHODT9mk6zsIuy6/ygHw

Garnishee Order Nisi; and

(ii) Garnishee Order Absolute.

Requirements under Order 49 r.2 ROC:

Application must be made ex parte by notice of application.

(ii) Must be supported by affidavit in Form 98.

(iii) The affidavit must: • identify the judgment and the unpaid sum; • state that the garnishee (named) is within jurisdiction and owes money to the judgment debtor; and • state the source of information or grounds for belief.

Burden on the judgment creditor:

The onus lies on the judgment creditor to show some credible evidence that the garnishee owes a debt to the judgment debtor.

(ii) A mere assertion is insufficient.

Binding effect of order nisi: S/N zNuHODT9mk6zsIuy6/ygHw

Once a garnishee order nisi is granted and served, the debt is frozen in the hands of the garnishee.

(ii) The garnishee cannot lawfully pay the debtor and must hold the funds until further order. ANALYSIS/DECISION [13] Applying the above principles, it is my judgment that the Plaintiff’s ex application does not comply with the requirements of Order 49 ROC. [14] The Plaintiff named 26 banks as garnishees but the supporting affidavit did not contain any statement that the Defendant maintained accounts or held funds with these banks. Neither was there any reference to the source of the deponent’s information or the basis of her belief. [15] The Court cannot simply issue a garnishee order nisi against all 26 banks unless the Plaintiff identifies the source of information or states the grounds for the belief that the Defendant holds accounts with those 26 banks. The Plaintiff must first undertake reasonable inquiries or investigations to identify where the Defendant maintains accounts. Such evidence may include, for example, previous bank statements, admissions by the Defendant or other reliable information. Regrettably none was provided here. [16] A Plaintiff who applies ex parte for a garnishee order nisi must produce some ‘credible information’ that the Defendant has an account with the named garnishee. The law does not permit a Plaintiff to go on a S/N zNuHODT9mk6zsIuy6/ygHw AP-A72NCvC-14-08/2024 8 of 10 fishing expedition by naming every bank in the hope that one may hold the Defendant’s account. [17] If such attempts were to be entertained, all banks, finance companies and any financial institutions in the country would be forced to peruse and respond to numerous garnishee orders issued by the hundreds of courts in the country. This would materially prejudice the smooth functioning of banking and commerce. The list of potential abuses could go on. This is precisely why courts have consistently warned against fishing expeditions. [18] It is the onus of the Plaintiff to do proper investigation before filing a garnishee application. Credible evidence must first be obtained to identify the bank or institution where the Defendant actually has an account. Only then can a proper application be filed under Order 49 ROC. [19] The Plaintiff relied heavily on the Court of Appeal decision in TESCO Stores. Having considered the judgment, I find that the Plaintiff’s reliance is misplaced. [20] In TESCO Stores, the Court of Appeal was dealing with an appeal after a full hearing of garnishee proceedings where evidence from both parties had been heard and the judge had already found that a debt was due. The Court of Appeal’s observations on the burden of proof were made in that context and did not dispense with the requirement under Order 49 rule 2 ROC that the applicant must first state the grounds of belief or source of information showing that the judgment debtor has an account with the named garnishee. The decision does not support the proposition that a Plaintiff may, at the ex parte stage, list all banks in the S/N zNuHODT9mk6zsIuy6/ygHw AP-A72NCvC-14-08/2024 9 of 10 country and require them to show cause without first producing some credible evidence. Accordingly, I am unable to accept the Plaintiff’s submission that TESCO Stores endorses such a ‘modern approach’. [21] In my view, to interpret TESCO Stores as allowing blanket orders against all banks would encourage abuse of court process. It would also impose unnecessary burdens on financial institutions and disrupt commercial operations. [22] Here the Plaintiff listed 26 banks as garnishees. Most of these banks are not even within the jurisdiction of this Court as they do not have any branches in Selama. Yet all were named without any basis being disclosed in the affidavit. In my view, such a blanket approach cannot be justified under Order 49 ROC. The Court requires at least some credible material linking the Defendant to a particular bank before an order nisi may be issued. CONCLUSION [23] For these reasons, this Court finds that the Plaintiff’s ex parte application (Enclosure 19) is without merit. The Plaintiff failed to comply with Order 49 rule 2 ROC. Accordingly, the Plaintiff’s ex parte application (Enclosure 19) is dismissed. There will be no order as to costs. Dated: 21.09.2025 signed (PRABAKARAN RAJOO) Magistrate Magistrate Court Selama Perak Darul Ridzuan S/N zNuHODT9mk6zsIuy6/ygHw AP-A72NCvC-14-08/2024 10 of 10 List of Counsel For the plaintiff: Mr. Kee Soo Hong [Messrs Kee & CK Ooi] No. 18, Jalan Wawasan 4, Taman Wawasan Jaya, 34200 Parit Buntar, Perak. S/N zNuHODT9mk6zsIuy6/ygHw