Small Medium Enterprise Development Bank Malaysia Berhad v 1. ) Starfusion Sdn Bhd (WA-22NCC-571-11/2022)

STARFUSION SDN BHD [COMPANY NO: 200601014339 (734090-H]

BASIR BIN SHARIFF (NRIC No.:640805-10-7565)

SUDHIR BIN ABDUL RAHMAN (Passport NO.: S1530678E)

NIZARUDDIN BIN TAHIR (NRIC No.: 710126-01-6013) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] Enclosure (“Enc.”) 12 is the Plaintiff’s application for summary judgment pursuant to Order 14 of the Rules of Court 2012 (“ROC 2012”) against the Defendants. [2] Enc.12 was heard together with Enc. 10 which was the 2nd to 4th Defendants’ application to strike out the Writ and Statement of claim (“SOC”)

(ii) monthly repayment in the sum of RM1,500.00 for a period of 12 months (commencing in June 2017) and thereafter, the monthly repayment amount will be reviewed by the Plaintiff. [8] It is also not disputed that pursuant to the e-mail, D1 made payment of a sum of RM5,000.00 by Maybank Banker’s cheque no. 052512 dated 5.5.2017 (exhibit DD-3). [9] No furhter payment was received by the Plaintiff thereafter. [10] The Plaintiff terminated the Facility Agreement and recalled the entire total outstanding sum under the Facility vide the notice of termination cum demand dated 5.7.2017 to D1 and to the guarantors (exhibits DD-4 and DD-8). [11] As at 31.8.2022 there was a sum of RM1,005,941.01 due and owing by D1 to the Plaintiff pursuant to the Facility Agreement. [12] By two notices of demand dated 19.9.2022, the Plaintiff through its solicitors had demanded against D1, and D2 to D4 (exhibit DD-5 and DD-9) for payment of the said sum of RM1,005,941.01. [13] No payment was made, and hence this action was filed by the Plaintiff. The Defendants’ objections to summary judgment [14] In resisting summary judgment, the Defendants contended:

14.1 The Plaintiff’s action against D2, D3 and D4 is statutorily time barred;

14.2 The Plaintiff’s action is unsustainable and an abuse of the process of the Court;

14.3 The amount claimed is erroneous, excessive, exorbitant and unjust enrichment; and

14.4 The Defendants have a good defence on merits and there are issues to be tried. [15] After considering the rival position of the parties, in effect, the issues to me are:

15.1 Whether the action is time barred against all the Defendants? and

15.2 Whether the Defendants have succeeded in raising any triable issues or shown there ought for “some other reason to be a trial” of the Plaintiff’s claim Law on Summary Judgment Applications [16] As to the Court’s function in hearing an application under Order 14, it will be useful to recall the authoritative pronouncements of the Federal Court in National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220: “We think it appropriate to remind ourselves once again that in every application under Order 14 the first considerations are (1) whether the case comes within the Order and (b) whether the Plaintiff has satisfied the preliminary requirements for proceeding under Order 14. For the purposes of an application under Order 14 the preliminary requirements are:

the Defendant must have entered an appearance;

(ii) the statement of claim must have been served on the defendant; and

(iii) the affidavit in support of the application must comply with the requirements of Rule 2 of the Order 14. It is to be observed that a case is not within Order 14 (a) where no statement of claim has been served on the defendant; (b) where the indorsement on the writ includes a claim or claims outside the scope of Order 14 as coming within Rule 1(2); (c) where the affidavit in support of the application is defective, e.g. in omitting to state the deponent's belief that there is no defence to the claim or part to which the application relates; (d) where the application is made in an action against the Government [Order 73 Rule 5(1)]. If the Plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If, however, these considerations are satisfied, the Plaintiff will have established a prima facie case and he became entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him [see Order 14 Rules 3 and 4(1)].” [17] It is important to be reminded that in an O.14 ROC 2012 application for summary judgment, the Court must look at the matter as a whole, and ask itself whether the defendant has satisfied the Court that there is an issue or question in dispute which ought to be tried, and if he cannot, he has to show there ought for “some other reason to be a trial” of that claim or part of the claim pursuant to O. 14 r. 3(1) ROC 2012. [18] Where a defendant is able to demonstrate facts to show that he has raised a defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given leave to defend. This discretion lies with the judge. [19] It is also to be borne in mind that the defendant must raise an arguable issue that requires a trial in order to determine it: Voo Min En & Ors. v Leong Chung Fatt [1982] 2 MLJ 241. [20] In Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400, the Supreme Court succinctly summarized the approach to be taken in dealing with the affidavits: “Under O. 14 when a fact is asserted by one party and denied by another, and such denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or other statement by the same deponent or is inherently improbable in itself, the judge has a duty to reject such assertion or denial, thereby rendering the issue as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O.14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. Where the issue raised is solely a question of law without reference to any facts or where the facts are clear and undisputed, the court should exercise its duty under O 14. If the legal point is understood and the court is satisfied that it is unarguable, the court is not prevented from granting a summary judgment merely because 'the question of law is at first blush of some complexity and therefore takes a little longer to understand'. (See Cow v Casey 6 and European Asian Bank AG v Punjab & Sind Bank 7 at p 516.)” [21] The principle governing the exercise of power under O.14 of the Rules of Court 2012 was stated in Jacobs v Booth Distillery Co. [1901] 85 LT 262 where Halsbury LC observed: “People do not seem to understand that the effect of Order 14 is that, upon the allegation of the one side or the other, a man is not to be permitted to defend himself in court; that his rights are not to be litigated at all. There are something too plain for argument; and when there were pleas put in simply for the purpose of delay which only added to the expense, and where it was not in aid of justice that such things should continue, Order 14 was intended to put an end to that state of things, to prevent sham defences, from defeating the right of parties by delay, and at the same time causing great loss to the Plaintiff s who were endeavouring to enforce their rights.” [22] In Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464, it was held: “The general principle is where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence he ought to be given leave to defend (Saw v.Hakim 5 TLR 72). A Defendant should not be shut out from defending unless it is very clear indeed that he has no case in the action under discussion (Sheppards v. Wilkinson 6 TLR 13). The power to give summary judgment under O. 14 is “intended only to apply to cases where there is no reasonable doubt that a Plaintiff is entitled to judgment and where therefore it is inexpedient to allow a Defendant to defend for mere purposes of delay”. (Jones v.Stone [1894] AC 122). Where there is any serious conflict to matters of fact or where any real difficulty as to matters of law arises, summary judgment under O. 14 should not be granted. (Electric and General Corpn. v.Thomson-Houston Electric 10 TLR 103). But, however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable it will give final judgment (Cow v. Casey [1949] 1 KB 481). (See Percetakan Solai Sdn Bhd v. Kin Kwok Daily News Sdn Bhd & Anor [1985] CLJ (Rep) 632 at p. 637).” [23] The Defendants need only raise one triable issue to be given leave to defend — South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045; HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631; Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178. Findings and Decision of this Court [24] Following the requirements set out by the Federal Court in National Company for Foreign Trade (supra), I find on the facts of this case, the Plaintiff has satisfied the preliminary requirements that the Order 14 application has been properly filed, and thus have established a prima facie case, and became entitled to judgment. The burden has then shifted to the Defendants to satisfy the Court why judgment should not be given against them. [25] With the foregoing legal principles in mind, and having examined in detail the affidavits to see if 'there is a fair or reasonable probability of the Defendants having a real or bona fide defence’, I find that the issues raised by D1 are not triable issues or issues which warrant a trial. This Court finds that the Plaintiff’s claim against D1 is clearly incontestable and that it is a suitable case to be disposed of summarily (see Bank Negara Malaysia v Mohd Ismail (supra). [26] I deal with the issues raised by the Defendants. Triable issues? Whether the action is time barred against all the Defendants [27] D2 to D4 argued that, the Guarantee is an on demand guarantee. The Plaintiff in fact had sent 3 demand letters against the guarantors - (i) the 1st letter of demand is on 26.8.2008, (ii) the 2nd letter of demand is dated 15.2.2017; and

(iii) the demand dated 5.7.2017 which the Plaintiff relied on in this action as constituting the date when the cause of action against the Defendants arose is the 3rd demand which was issued after the Plaintiff filed Kuala Lumpur Sessions Court Suit No. WA-B52NCC-181-03/2017 ( 1st suit) on 22.3.2017 against the Defendants and later the 1st suit was withdrawn on 6.6.2017. [28] D2 to D4 postulated that there is an issue as to whether the first demand of 26.8.2008 or the second demand of 15.2.2017 was the real or operative demand to determine when the cause of action against the 2nd, 3rd and 4th Defendant arose and correspondingly the time from which any statutory time-bar under the Limitation Act 1953 had to be calculated. Citing Nik Che Kok @ Nik Soo Kok v Public Bank [2001] 2 CLJ 157 CA, D2 to D4 argued that time began to run from the earliest time at which the action could have been brought by the Plaintiff was when the Plaintiff issued the notice of demand dated 26.8.2008, payment was to be made 14 days from the date of 26.8.2008, the six years period had lapsed on 9.9.2014. The Writ filed only in November 2022 was thus statutorily time barred against D2 to D4. The following authorities were also cited in support: - i. Mok Hin Wah & Ors v UMB Bhd [1987] CLJ (Rep) 219 SC ii. Joseph Thambirajah v Bank Buruh (M) Berhad (2008) 2 MLJ 773 CA iii. Public Bank Berhad v Tan Sri Datuk Yacob b Hitam, Paramjit Singh Gill (unreported) iv. Affin Bank Bhd v Goh Hock Hai (2018) 9 CLJ 217 [29] D2 to D4 further submitted that as the Plaintiff had acknowledged at paragraph 8 of the Statement of Claim that the payment of RM5,000 was made by D1 on 19.5.2017, such a payment after the expiry of the limitation period does not bind D2 to D4 by reason of s. 28 (4) and (5) of the Limitation Act which reads: “(4) An acknowledgment of any debt or other liquidated pecuniary claim shall bind the acknowledgor and his successors but not any other person: Provided that an acknowledgment made after the expiration of the period of limitation prescribed for the bringing of an action to recover the debt or other claim shall not bind any successor on whom the liability devolves on the determination of a preceding estate or interest in property under a settlement taking effect before the date of the acknowledgment. [30] D2 to D4 further posited that the payment made by D1 was made without mandate from the Board of Directors and does not bind the guarantors. The RM5,000.00 payment made through D2 on behalf of D1 was made because he was pressured by the Plaintiff to do so, and also made due to misrepresentation by the Plaintiff after D2 inquired about the facilities and the payments made by the main contractor. [31] The Plaintiff countered that:

31.1 In its notice of demand dated 26.8.2008 against the Defendants, the Plaintiff demanded for payment of the arrears only; this demand was not a termination notice and as such not applicable for the purpose of computation of limitation period. After this demand, the Plaintiff received part payment totalling RM66,258.87 on 1.8.2011;

31.2 The 2nd letter of demand dated15.2.2017 issued to D1, D2 to D4 were issued by as SMEB Asset Management Sdn Bhd (SMEB), a distinct and separate entity from the Plaintiff. Due to restructuring of the Plaintiff, pursuant to an Order of the High Court dated 26.1.2015, SMEB was to have taken over part of the accounts belonging to the Plaintiff. SMEB filed the 1st suit against the Defendants. However, upon finalizing the restructuring exercise, both the Plaintiff and SMEB discovered that the Facility granted to D1 was not transferred to SMEB. As such, the 1st suit was withdrawn by SMEB with liberty to file afresh and the same was struck out by the Court with liberty to file afresh.

31.3 By email dated 28.4.2017, D2 made a proposal for upfront payment and repayment as alluded to at paragraph 7 above in and pursuant thereto, part payment in the sum of RM5,000.00 was made to the Plaintiff on 19.5.2017. The e-mail dated 28.4.2017 and 12.5.2017 wherein D2 informed the Plaintiff’s officer that he had delivered a cheque to the Plaintiff’s office are clear and unequivocal admissions or acknowledgement of the debt due and owing by D1 to the Plaintiff;

31.4 When no repayment of the outstanding loan amount as per the repayment proposal was received in June, pursuant to a notice of termination cum demand dated 5.7.2017 to D1 and D2 to D4 respectively, the Plaintiff had cancelled the Facility and terminated the Facility Agreement and demanded for the payment of the entire total outstanding sum under the Facility;

31.5 The six (6) years limitation period would have begun14 days after the demand of 5.7.2017, i.e. on 19.7.2017 and will only lapse on 19.7.2023. The suit herein, filed on 4.11.2022 was well within the 6 years limitation period.

31.6 Even if the cause of action accrued prior to 5.7.2017, the part payment of RM5,000.00 made by D1 and received by the Plaintiff on 19.5.2017 towards repayment of the Facility renders the right of action to have accrued afresh on 19.5.2017, limitation will only set in on 19.5. 2023 pursuant to s. 26(2) of the Limitation Act 1953 which reads:- “(2) Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment: Provided that a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder of the rent or interest then due, but any payment of interest shall have effect, for the purposes of this subsection only, as if it were a payment in respect of the principal debt.”

31.7 The cases cited by the Defendants are not applicable as they did not consider the issue and effect of a 'principal obligor/principal debtor clause'. In the instant case, the liability of D2 to D4 is that of a “principal obligor” / “principal debtor” and co-extensive with that of D1 and the Guarantee in Clause 14 provides it is continuing Guarantee for all moneys whatsoever now or from time to time owing to the Plaintiff by D1. Thus due to the 'principal obligor/principal debtor clause' for the purpose of determining the time of accrual of cause of action and limitation period are different from the principles of law that are applicable to an ‘on demand’ guarantee per se, citing in support Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd [2013] 1 CLJ 24; [2013] 1 MLJ 449 where the FC held that a principal obligor is primarily liable for the principal borrower's indebtedness to a lender and such a liability is not dependent or secondary to the liability of the principal borrower; a written demand is not necessary - Galvapole Industries Sdn Bhd v. Yang Fong M&E Engineering Trading Sdn Bhd & Anor [2022] 1 LNS 2699; Credit Corporation (M) Berhad v. Choi Sang & Anor [1989] 1 CLJ (Rep) 440; United Overseas Bank (Malaysia) Bhd v. Andrew Lee Siew Ling [2012] 3 CLJ 708; Ambank (M) Berhad (8515-D) v. Glorious Holidays Sdn Bhd & Ors (No. 2) [2012] 1 LNS 68 where in the later case, the High Court held in a situation where there is a principal debtor clause, the cause of action against the guarantor arises immediately upon the default to pay by the borrower and no demand on the guarantor is necessary. The writ itself is a demand. Therefore, notice of demand is irrelevant for the purpose of determining the time of accrual of the cause of action against D2 to D4;

31.8 The proviso to Section 28(5) of the Limitation Act does not apply as the part payment of RM5,000.00 was made during the period of limitation and not after the expiration of same. [32] Having considered anxiously the pleadings, averments in the parties’ affidavits, submissions, both written and oral, and viewed against the background of the events that had transpired right up to the issuance of the 5.7.2017 demand letter, I am of the view that D2 to D4 have raised a substantive legal issue on whether limitation has set in. In other words whether the action is time barred as a defence requires viva voce evidence and close investigation at trial, and not to be decided at this interlocutory stage based on mere affidavits on whether the limitation clock started ticking from 26.8.2008 or 5.7.2017 when the Plaintiff issued the notice of demand to D2 to D4. [33] Based on the same pleadings and evidence adduced before the court, I agree with the Plaintiff and find limitation has not set in against D1 when the suit was filed on 4.11.2022 since the last payment D1 made was on 19. 5.2017. The Plaintiff’s right of action against D1 accrued afresh on 19.5.2017 and will only be statutorily barred on 19.5.2023. [34] As adverted to earlier at paragraph 23, D2 to D4 need only raise one triable issue to be given leave to defend. Having found the defence of limitation is triable, it is thus not necessarily for me to consider the remaining issue against D2 to D4. Whether D1 has raised any triable issue? [35] D1 argued that the Certificate of indebtedness is not conclusive proof and tainted with irregularities. There is clear manifest error on the statement of account as the amount approved is RM490,505.62 only. The Plaintiff has not explained what is the CAJ charged and why there are 3 separate statement of accounts. Are these allegations enough to direct that there should therefore be a trial? [36] I think not. [37] The Plaintiff in rebuttal argued that:

37.1 The Facility granted by the Plaintiff to D1 comprised (i) Revolving Working Capital (“RWC”) of up to RM600,000.00; and (ii) Bank Guarantee in the sum of up to RM67,500.00.

37.2 The methods of financing of the revolving working capital facility are clearly spelt out in the Second Schedule of the Facility Agreement and Section 4.02 of the Supplemental Loan and Guarantee Facilities which provide, among others, as follows: - “RWC Facility

Disbursement of the RWC Facility shall be made subject to and in accordance with the terms and conditions contained in the Facility Agreement and provided the Plaintiff having received the written request from the First Defendant accompanied with the original letter of award and/or invoices (together with all purchase orders, delivery note for each invoices financed by the Plaintiff and/or other supporting documents, satisfactory to the Plaintiff).

(ii) Disbursement of the RWC Facility shall be made in the amount not more than eighty per centum (80%) of the net value of the purchase order/invoices/progress claim or such other rate as may be prescribed by the Plaintiff at its discretion from time to time.

(iii) Subject to the availability of balance of the RMC Facility not utilised, disbursement shall be on a revolving basis within the duration of the RWC Facility subject to the Plaintiff’s rights to disburse the same progressively at its absolute discretion.

(iv) The RWC Facility shall be disbursed up to the limit of RM600,000.00 only. The disbursement of the facility shall be up to the limit of RM300,000.00 only at any one time.”

37.3 The three (3) separate statement of account refers to the amount of RWC Facility approved and disbursed by the Plaintiff on each separate occasion at the request of D1 in accordance with the methods of disbursement of the RWC Facility as stated above. The limit of the RWC Facility is up to RM600,000.00. D1 may utilise the RWC Facility and request for disbursement up to the limit of RM600,000.00. In this case, the RWC Facility was utilised and disbursed as per the approved amount as stated in the three (3) separate statement of account. The Plaintiff submits that there is no conflict or contradiction as to the amount disbursed as alleged by the Defendants;

37.4 Repayment of the amount of facility disbursed is set out in Clause 3 (a) of the Facility Agreement read with Item 6 (1) of the First Schedule to the Facility Agreement which provide, among others, as follows: - “RWC Facility

The repayment of each of the disbursement of the RWC Facility together with the payment of interest and processing fee shall be made by way of deduction of the proceeds of contract received from the Contracting Party.

(ii) The Borrower shall repay from its own sources the RWC Facility amount disbursed in the event the Bank fails to receive payment stated in Item 6(1)(a)(i) above within Ninety (90) days from the date of disbursement of the RWC Facility.

(iii) In the event the Borrower fails to settle the RWC Facility amount or any part thereof (inclusive of interest and any other monies herein agreed to be paid) after the Ninety (90) day period from the date of disbursement of the same, the RWC Facility shall be deemed as in arrears and a penalty interest of one per centum (1.0%) per annum shall be imposed on the Borrower over and above the rate of interest stipulated in Item 7(a) herein calculated daily commencing on the first day after the expiry of the Ninety (90) day period.

(iv) In the event the Bank fails to receive payment from the Contracting Party and/or the repayment from the Borrower after One Hundred and Twenty (120) days from the date of disbursement of the RWC Facility or any part thereof, in such an event happening the Bank has the right at its sole discretion to take legal action against the Borrower for recovery of the arrears or all the balance of the RWC Facility then outstanding.”

37.5 All charges claimed are in accordance with the terms of the Facility Agreement and the Guarantee – see Clause 25.4 of the

37.6 Apart from making a bare allegation, the Defendants have not shown a manifest error in the Plaintiff’s statement of account which is conclusive evidence that the amount claimed against the Defendants is in fact due and payable pursuant to Clause 25.2 of the Facility Agreement which provides: - “25.2 Statement of Account It is hereby agreed that a statement of account in writing showing the indebtedness of the Borrower to the Bank duly certified by any Manager of the Bank or other duly authorised Officer of the Bank shall be binding and conclusive against the Borrower, its liquidators, receivers, persons deriving title and assigns that the balance or the amount thereby appearing is due from the Borrower to the Bank and payable on demand by the Borrower.”

37.7 In the case of Cempaka Finance Berhad v. Ho Lai Ying (berniaga atas nama KH Trading) & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544, the Federal Court held as follows: - “A certificate of indebtedness operates in the field of adjectival law. It excuses the plaintiff from adducing proof of debt. Such a certificate shifts the burden onto the defendant to disprove the amount claimed. In the instant case, the relevant cls. 27 and 7.03 of the loan agreement and guarantee agreement respectively are sufficiently clear. A clause of this nature has been described as a conclusive evidence clause. Such a clause has been held to be binding and valid by courts in Australia and England. In Dobbs v. National Bank of Australiasia [1953] 53 CLR 643, the Australian Court made the following observation which we think is instructive: - ... The bank could recover without the production of a certificate if, by ordinary legal evidence, it proved the actual indebtedness of the customer. But the (conclusive evidence) clause, if valid, enables the bank by producing a certificate to dispense with such proof. It means that for the purpose of fixing the liability of a surety, the customer's indebtedness may be ascertained conclusively by a certificate. ... But the manifest object of the clause was to provide a ready means of establishing the existence and amount of the guaranteed debt and avoiding an inquiry upon legal evidence into the debits going to make up the indebtedness. The certificate of indebtedness, exh. P3, issued in accordance with cls. 27 and 7.03 aforesaid, is lucid enough. There is nothing to indicate or suggest any manifest error on the face of the said certificate nor is any fraud shown”. [38] After evaluating the affidavits it appears to me plain that there was no response by the Defendants, in particular D1 to the Plaintiff’s letters of demand. It is noteworthy that there were no contemporaneous documents to lend a credible basis to any complaint about the Facility; not even when the repayment proposal was made by e-mail dated 28.4.2017 and 12.5.2017. D1 is thus estopped from denying its indebtedness and liability to the Plaintiff. The Defendants only complained about the statement of accounts after action herein was commenced. [39] The point here is, D1 or for that matter D2 to D4 were unable to show any manifest error to challenge the correctness of the Certificate/Statement of Indebtedness in exhibit DD-6 verifying the sums owing under the Facility at 31.8.2022. As such, I hold that the complaints now raised are bare assertions which do not constitute evidence and they cannot give rise to triable issues - Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers

(M) Berhad [1995] 3 CLJ 690. [40] Following Cempaka Finance, when a conclusive certificate of indebtedness is issued, such a certificate shifts the burden onto the Defendant to disprove the claim. The Plaintiff has no duty to particularise in detail the amount claimed. In my judgment, as D1 has not disproved the amount claimed, it should not be allowed to hide behind the bare allegations that it has made. As such, the conclusiveness of the indebtedness stands and D1 is liable to pay the amount stated therein. [41] Further, it is not disputed that D1 made the part payments as alluded to in paragraphs 6 and 8 above. These part payments were not paid on a ‘without prejudice’ basis. Part payments amount to an admission of indebtedness - CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 and Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906. The email dated 28.4.2017 proposing payment is irrefragably an aknowlegment of indebtedness which was followed up by the upfront payment of RM5,000 as proposed. [42] I am satisfied that no bona fide triable issue has been raised by D1 and I am not able to find anything relied upon by D1 that requires “closer investigation” or constitute there is “some other reason for trial” within the category of what Megarry J had in mind in Miles v Bull [1968] 3 All ER 632, page 637 to 638 as adopted by the Federal Court in United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657. [43] In Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183, the Supreme Court said at p. 185: “The underlying philosophy in the Order 14 provision is to prevent a plaintiff clearly entitled to the money from being delayed his judgment where there is no fairly arguable defence to the claim. The provision should only be applied to cases where there is no reasonable doubt that the plaintiff is entitled to judgment. Order 14 is not intended to shut out a defendant. The jurisdiction should only be exercised in very clear cases.” (emphasis added) [44] As against D1, it is my considered view that a trial will not throw any further light on the matter as all the issues canvassed in the application before the court are clear, and can be decided once and for all without going to trial. In this regard, I recall the crisp reminder of Vincent Ng J in Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368 is applicable: “.. No party in a proceeding is entitled to require the court to accord them valuable time of several days open court viva voce trial only upon mere or bare assertions in their affidavits…” [45] I have no reasonable doubt that the Plaintiff is entitled to summary judgment against D1. [46] For reasons given, I therefore exercised my discretion to enter summary judgment as prayed by the Plaintiff against D1 with costs subject to allocator. Dated: 13th August 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : S. Maniarasan (together with him, Nur Khairunnisa Adriana) Messrs Adam Abdullah & Mani For the Defendants : Hairulalias Shaari Messrs Putra Taulan & Faiq Azizan CASES REFERRED: National Company for Foreign Trade v Kayu Raya Sdn Bhd [1984] 2 MLJ 300; [1984] 2 CLJ 220 Voo Min En & Ors. v Leong Chung Fatt [1982] 2 MLJ 241 Bank Negara Malaysia v Mohd Ismail Ali Johor & Ors [1992] 1 MLJ 400 Southern Finance Bhd v Sun City Development Sdn Bhd & Anor [2006] 7 CLJ 464 South East Asia Insurance Bhd v Kerajaan Malaysia [1996] MLJU 642; [1998] 1 CLJ 1045; HSBC Bank Malaysia Bhd v Ng Tien Beng & Ors [2008] 9 CLJ 631; Stamford College Bhd v Iris Corp Bhd [2014] 8 MLJ 178 Nik Che Kok @ Nik Soo Kok v Public Bank [2001] 2 CLJ 157 Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd [2013] 1 CLJ 24; [2013] 1 MLJ 449 Galvapole Industries Sdn Bhd v. Yang Fong M&E Engineering Trading Sdn Bhd & Anor [2022] 1 LNS 2699 Credit Corporation (M) Berhad v. Choi Sang & Anor [1989] 1 CLJ (Rep) 440 United Overseas Bank (Malaysia) Bhd v. Andrew Lee Siew Ling [2012] 3 CLJ 708 Ambank (M) Berhad (8515-D) v. Glorious Holidays Sdn Bhd & Ors (No. 2) [2012] 1 LNS 68 Cempaka Finance Berhad v. Ho Lai Ying (berniaga atas nama KH Trading) & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544 Chen Heng Ping @ Tian Seow Hock & 5 Ors v. Intradagang Merchant Bankers

(M) Berhad [1995] 3 CLJ 690 CCG Concrete Constructions (M) Sdn Bhd v Rich Avenue Sdn Bhd [2000] 7 MLJ 46 Kris Heavy Engineering & Construction Sdn Bhd v Lewis & Co [2017] MLJU 906 Miles v Bull [1968] 3 All ER 632 United Merchant Finance Bhd v Majlis Agama Islam Negeri Johor [1999] 1 MLJ 657 Malayan Insurance (M) Sdn Bhd v Asia Hotel Sdn Bhd [1987] 2 MLJ 183 Suppuletchimi v Palmco Bina Sdn Bhd [1994] 2 MLJ 368 LEGISLATION/STATUTE: Order 14 of the Rules of Court 2012 Section 26(2), 28 (4) and (5) of the Limitation Act 1953