Straits Capital Corporation Sdn Bhd v Coral Cresh Sdn Bhd (WA-22NCC-228-06/2017)

the sum of RM7,007,233.12 (amended from original figure RM8,073,710.08) being the unpaid sum due and owing to 30 the Plaintiff calculated as at 5/9//2017 (amended from original figure 30/11/2016) under the Loan Agreement No.SCTL/011/14 dated 1/6/2014;

default interest at the rate of 8% per annum calculated day to day from 1/10/2017 (amended from original figure 35 1/12/2016) until date of full settlement;

costs of the application to be paid by the Defendant to the Plaintiff; and 2

any further and other relief deemed fit and proper by the 5 Court. [2] For the purpose of this application I am satisfied the preliminary requirements have been complied with i.e. (i) the defendant has entered appearance; (ii) the statement of claim must have been 10 served on the defendant; and (iii) the affidavit in support of the application must comply with the requirements of r.2 of O.14 of the ROC 2012. Upon these considerations being satisfied, the plaintiff will have established a prima facie case and it comes entitled to judgment and the burden shifts to the defendant to satisfy the Court why 15 judgment should not be given against him (per George Seah FJ in National Company For Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ (Rep) 283 at p.285 e-f) & Cempaka Finance Bhd v Ho Lai Ying (trading as KH Trading) & Anor [2006] 2 MLJ 685 (FC) at 689 [5]). 20 [2.1] It is also trite law that in a claim for summary judgment the burden is on the defendant to raise triable issues though a complete defence need not be shown; the determination of whether an issue is triable or not must necessarily depend on the facts or the law arising in each case as disclosed in the affidavit evidence before the Court 25 (per Mohamed Azmi SCJ in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 at p.408 A-B and further on the same page E-F, the Supreme Court held - “Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or 30 other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable.” 35 3 5 Brief Facts [3] The Plaintiff is a licensed money lender and the parties had entered into a Loan Agreement No.SCTL/011/14 dated 1/6/2014 10 (‘Loan Agreement’) whereby the Plaintiff has agreed to lend the sum of RM8,000,000.00 to the Defendant (exh.A-1, Affidavit in Support affirmed by Syed Salehudidn bin Syed Abdullah affirmed on 6/9/2017). 15 [4] The salient terms of the Loan Agreement are as follows: “1. Instalment Repayment The instalment repayment in this Agreement shall be due any payable without demand the first of which is to be made on the 15th day of July 20 2014 (date of the first repayment) and thereafter on the 15th day at the end of each and every subsequent 3-month until the expiration of the said twenty four (24) months from the date hereof.

Default 25

If default is made in the repayment upon due date of any sum of instalment payable to the Lender under this Agrement, whether in respect of principal or interest, the Lender shall be entitled to charge simple interest ion the unpaid sum of instalment which shall 30 be calculated at the rate of eight per centum (8%) per annum from day to day from the date of default in repayment of the sum of instalment until that sum of instalment is paid, and any interest so charged shall not be reckoned for the purposes of this Agreement as part of the interest charged in respect of the loan.

The interest shall be calculated in accordance with the following formula:- R = 8/100 x D/365 x S 40 Where “R” represents sum of interest to be paid “D” represents the number of days in default “S” represents the sum of monthly instalment, which is overdue. 4

Security 5 In consideration of this Agreement the Borrower agrees to lodge with the Lender security as specified in Section 11 of the First Schedule (the “Security”) and the Security shall be for the duration of the repayment. 10 The First Schedule Section No. Item Particulars 5. Interest rate Twelve per centum (12%) per annum.

Number of instalment repayments

quarterly instalment repayments.

Amount of each instalment repayment Two Hundred and forty thousand (RM240,000.00) per quarter.

Mode of repayment The first instalment repayment to commence on 15th July 2014.

Amount of final instalment repayment The full Principal Sum together with any accrued interest payable calculated according to Section 5 therein. ” [5] In consideration of the loan granted by the Plaintiff to the 15 Defendant, the Defendant as the registered land owner for a property known as GRN 50593, No. Lot 58581, Mukim Batu, Daerah Kuala Lumpur (‘the Defendant’s property’) had charged to the Plaintiff as a security. 20 [6] Furthermore, third parties charge on the land known as Hakmilik GRN 50585, No. Lot 58573 all located in the Mukim Batu, Daerah Kuala Lumpur (‘the properties’) were also charged to the Plaintiff as additional security. 25 [7] The Plaintiff had disbursed the sum of RM8,000,000.00 to the Defendant pursuant to the terms and conditions of the Loan Agreement. However, the Defendant has failed to pay the instalments 5 and interest in the period specified in the Loan Agreement to the 5 Plaintiff. Accordingly, the Plaintiff has instructed his solicitors to issue Notice of Demand for the outstanding balance of RM8,073,710.08 as at 30/11/2016 together with the default interest of 8% against the Defendant (exh.A-3, Affidavit in Support of the Plaintiff). 10 [8] I have perused the Plaintiff’s Statement of Claim, the Defendant’s Defence, the Plaintiff’s Reply to the Defence, the Plaintiff’s Affidavit in Support, the Affidavit in Reply of the Defendant affirmed by Lim Sue Beng on 25/9/2017, the Affidavit in Reply of the Plaintiff affirmed on 12/10/2017 by the same deponent of the 15 Plaintiff’s Affidavit in Support and the Submissions of the Plaintiff and the Defendant. I find the sole purported issue which is raised by the Defendant is the Plaintiff has not denied receiving the sum of RM1,000,000.00 paid by the Defendant on 28/6/2017 but failed to take this amount into account and thus the amount claimed by the 20 Plaintiff against the Defendant is not accurate. Findings [9] The Defendant disputed that it owed the Plaintiff the sum of RM8,073,710,00 as alleged by the Plaintiff in para 11 of the Plaintiff’s 25 Affidavit in Support. Vide paragraph 11 of the Defendant’s Affidavit in Reply, the Defendant averred that its last payment to the Plaintiff was RM1,000,000.00 made on 28/6/2017 and exhibited a cheque for the said sum made payable to the Plaintiff and a payment voucher dated 28/6/2017 with the said cheque details of MBB 530994 being 30 repayment of the Loan Agreement (exh.LSB-1). 6 [10] In para 11 of the Plaintiff’s Affidavit in Reply, the Plaintiff 5 admitted that the Defendant had paid the RM1,000,000.00 on 28/6/2017 as acknowledged by the Plaintiff, including other payments from the Defendant as follows: “Saya menyatakan selanjutnya bahawa Defendan telah membayar RM1,620,000.00 kepada Plaintif dari Januari sehingga September 10 2017 dan pembayaran tersebut adalah termasuk RM1,000,000.00 yang dibayar oleh Defendan kepada Plaintif pada 28.06.2017. Saya menyatakan bahawa jumlah RM1,000,000.00 tersebut, RM80,000.00 pada 03.07.2017, RM70,000.00 pada 01.08.2017 dan RM70,000.00 pada 05.09.2017 adalah dibayar selepas Plaintif memfailkan tuntutan 15 melalui Mahkamah Tinggi Kuala Lumpur Writ Saman No:WA-22NCC- 228-06/2017 pada 16.06.2017. Oleh yang demikian, ia merupakan satu pengakuan Defendan terhadap tuntutan yang difailkan dan Defendan juga telah mengakui bahawa terdapat jumlah hutang masih belum dijelaskan. Maka itu, Defendan adalah masih bertanggungan untuk 20 menyelesaikan baki keberhutangan tersebut yang berjumlah RM7,007,233.12 setakat 05.09.2017”. (Emphasis added) The Plaintiff exhibited the Statement of Account for the unpaid amount outstanding of RM 7,007,233.12 as at 5/9/2017 in exh.A-4, 25 Plaintiff’s Affidavit in Reply. [11] Based on the Affidavit evidence it is undisputed that the Plaintiff has released the sum of RM8,000,000.00 to the Defendant who has admitted its indebtedness to the Plaintiff by exhibiting exh.LSB-1, the 30 cheque and payment voucher for the amount of RM1,000,000.00 as payment towards the amount owing under the Loan Agreement. [12] Based on the Statement of Account, exh.A-1, I find the Plaintiff has acknowledged and taken into account the payment of 35 RM1,000,000.00 made on 28/6/2017 including further payments of the Defendant as stated in para 11 of the Plaintiff’s Affidavit in Reply. I find the Statement of Account, exh.A-1 of the Plaintiff showing the sum of RM7,007,233.12 as at 5/9/2017 which remained outstanding 7 is a correct and true reflection of the amount owing by the Defendant 5 as the Defendant did not challenge the said Statement of Account. In this regard learned Plaintiff Counsel had before the decision was delivered made an oral application to amend as follows: “(a) Amend encl.1, writ at “judgment claim” at para (a) from RM8,073,710.08 to RM7,007,233,12 as at “5/9/2017” instead of 10 “30/11/2016”. Para (b) from “1/12/2016” to “6/9/2017”;

in para (b) of writ date of “1/12/2016” to “1/10/2017”;

Encl.2 - Statement of Claim - 15 i) para 12(a) – the amount of “RM8,073,710.08” ro “RM7,007,233,12 as at “5/9/2017” instead of “30/11/2016”. ii) para 12(b) – “1/12/2016” to “1/10/2017””. 20 The learned Defendant Counsel objected to the amendments submitting that it ought to be by way of an application. I allowed the oral amendments as I agreed with the Plaintiff Counsel there is no prejudice caused to the Defendant as it is based on the Statement of Account, exh. A-1, Plaintiff’s Affidavit in Reply which has taken into 25 account the payment of RM1,000,000.00 which the Defendant alleged was not accounted for and no prejudice has been occasioned to the Defendant. [13] For completeness I wish to refer to 2 matters alleged by the 30 Defendant in the Defendant’s Affidavit in Reply which in my view are mere afterthoughts. Firstly, the Defendant alleged that the Plaintiff did not issue and neither did it receive the Notice of Demand from the Plaintiff. I find this is a non issue as the Plaintiff has exhibited the demand letter from its solicitor, Messrs. Othman Hashim & Co. dated 35 22/12/2016 claiming from the Defendant the amount of 8 RM8,073,710.08 as at 30/11/2016 together with default interest as 5 per exh.A-3, Plaintiff’s Affidavit in Support. Secondly, the Defendant alleged that it has no knowledge of the terms and conditions of the Loan Agreement which was not explained to the Defendant. In my judgment the Defendant’s allegation is negated and is devoid of any merit based on the 10 following:

On the Loan Agreement which the Defendant has entered and which is not disputed, I observed that 2 Directors of the Defendant, Lim Cheng Pow, NRIC No.420401-71-5375 and Lim Sue Beng, NRIC No.641119-10-6073 signed on behalf of the Defendant (‘the 15 Borrower’ under the Loan Agreement). Immediately thereafter there is this statement attested by an advocate and solicitor which expressly states - “I, do solemnly and sincerely declare that I have explained the terms of this Agreement to the Borrower and it appears to me that the Borrower 20 has understood the nature and consequence of this Agreement”. There is nothing on affidavit to show that the Defendant disputed this fact.

The Defendant has not denied receiving the loan sum and in 25 fact made payment of RM1,000,000.00 to the Plaintiff towards the repayment under the Loan Agreement which the Plaintiff has taken into account. By its very own conduct the Defendant is now estopped from asserting the non-explanation of the terms and conditions of the Loan Agreement. 30 Conclusion [14] For the foregoing reasons, I find the Defendant has not raised any triable issue which merited a trial. I allowed the Plaintiff’s 9 application (encl.7) for summary judgment to be entered against the 5 Defendant in terms of prayers (a) and (b) as amended and prayer (c), costs of RM2,000.00 to be paid by the Defendant to the Plaintiff. Dated: 6/3/2018 10 SGD. (LAU BEE LAN) Judge 15 Counsel for the Plaintiff: Encik L.K. Tan together with Cik Yap Jia Yien Messrs Othman Hashim & Co. 20 Advocates & Solicitors 6th Floor, Wisma Kah Motor No.566, Batu 3 ½, Jalan Sultan Azlan Shah 51200 Kuala Lumpur 25 Counsel for the Defendant: Cik Nik Nurul Atiqah binti Nik Yusof 30 Messrs Faizah, Lim & Associates Advocates & Solicitors Mezzanine & 1st Floor No.212, Jalan Sultan Azlan Shah 51200 Kuala Lumpur 35