Syarikat Abdul Ghaffar Trading Sdn Bhd v Al-Hirah Holdings Sdn Bhd (BL-12ANCC-1-01/2023)

The plaintiff in pursuant of their suit against the defendant, filed an application for Summary Judgment against the defendant before the Sessions Court which was allowed by the learned Sessions Court Judge (SCJ). The defendant hence appealed to this Court.

After perusing the written submissions filed by the respective parties and hearing counsels presenting further oral clarifications, this Court decided to dismiss the appeal of the defendant with the Summary Judgment against the defendant allowed to stand. The defendant feeling aggrieved by the decision of this Court has appealed further to the Court of Appeal.

The parties will be referred to as they were before the Sessions Court i.e plaintiff and defendant in the Judgment herein for the purpose of the appeal.

The documents referred to pertaining to this appeal are: i) Statement of Claim dated 01.07.2022; ii) Defence and Counter Claim dated 25.08.2022; S/N epfYT2l2DEy4zj7ynRelqA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 iii) Reply to Defence and Defence to Counter Claim dated 07.09.2022; iv) Notice of application for Summary Judgment dated 11.10.2022; v) Afidavit Sokongan Plaintiff affirmed by Muhamad Ali bin Jahabar on 11.10.2022; vi) Afidavit Balasan Defendan affirmed on 27.10.2022, vii) Afidavit Balasan Plaintif affirmed on 02.11.2022.

The prayers in the Statement of Claim are for: a) the sum of RM 507,481.20; b) interest at the rate of 5% per annum on the sum of RM 507,481.20 from 01/04/2022 until full settlement; c) late payment charges at the rate of 1.5% per month on the sum of RM 507,481.20 from 1/04/2022 until full settlement, d) cost of this action; e) such further and other reliefs as the Court deems fit.

The plaintiff and defendant are parties to an agreement for the sale of dates whereby the plaintiff sold dates to the sum of RM 642,481.20 which was received by the defendant with the defendant paying the sum of RM 135,000.00. S/N epfYT2l2DEy4zj7ynRelqA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

Arising from this, the plaintiff has instituted a claim for the balance which is claimed to be unpaid to the sum of RM 507,481.20 together with interest and cost.

The defendant however counter claims RM 61,196.40 averred to have been paid by the defendant to the plaintiff for dates unsold, transportation costs, storage and the plaintiff having reclaimed unsold dates worth RM 568,677.60, general damages to be assessed and cost.

The Director of the plaintiff affirms that the plaintiff sold to the defendant dates worth RM 642,481.20 between 01/04/2022 until 27/04/2022 with the defendant receiving the same.

The defendant made part payment to the sum of RM 135,000.00 leaving an unpaid balance of RM 507,481.20. The plaintiff avers that the defendant has no Defence to the claim.

The Defence of the defendant dated 25.08.2022 specifically in paragraphs 3 and 3.1 admit to the defendant receiving 9,393 cartons in 7 batches worth RM 642,481.20 with the defendant paying the sum of RM 135,000.00. S/N epfYT2l2DEy4zj7ynRelqA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The invoices and delivery orders sent to the defendant are proofs of the claim with the signed acceptance by the defendant being reflected in exhibits M-1, M-2, M-3 in the plaintiff’s affidavit in support.

The defendant received the dates in 9,393 cartons worth the sum of RM 642,481.20 via 7 deliveries with the defendant bearing the cost of transportation from a warehouse rented by the plaintiff at Selangor to the defendant’s warehouse at Penang.

Payment of RM 135,000.00 was made on the basis of consignment i.e with payment to be made only upon the buyer having sold the dates. It is the contention of the defendant that there are still 8,314 cartons of dates yet to be sold worth RM 568,677.60 hence the claim made is pre-mature since the transaction between the plaintiff and defendant is on a consignment basis.

Before proceeding further, this Court finds it most appropriate to revisit the governing principles pertaining to a Summary Judgment application. In the often-quoted case of Bank Negara Malaysia v Mohd Ismail & Ors (1992) 1MLJ 400 it was held by a majority decision of the Supreme Court that: S/N epfYT2l2DEy4zj7ynRelqA **Note : Serial number will be used to verify the originality of this document via eFILING portal 6

In an application under O.14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. A complete defence need not be shown. The defence set up need only show that there is a triable issue.

Under an O.14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such an assertion, denial or dispute is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or 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. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O.14 application. Deliberations of the Court [16] It is trite that in an appeal against a decision in an interlocutory application, in this guise being a Summary Judgment application, the appeal thereby is heard and determined on the basis of a re-hearing. [17] In deciding based on affidavit evidence the Court has a duty to carefully peruse through the averments and documents exhibited and this Court has performed such a task in arriving at this decision. Guidance is S/N epfYT2l2DEy4zj7ynRelqA derived from Wooley Development Sdn Bhd v Mikien Sdn Bhd [2008] 1 MLJ 585, in which it was held: “(2) When an issue of fact is raised in an affidavit opposing an application for summary judgment, the trial judge is thus duty bound not merely to accept it superficially and in a cursory manner. He is not bound to accept any allegation uncritically. In exercising his judicial discretion, the judge is obliged to critically examine any assertion of fact to determine if it were bona fide factual dispute worthy of determination at a full trial.” Receipt of invoices marked as M-1 [18] The defendant argues that the plaintiff has failed to produce invoices showing receipt of the dates by the defendant since the invoices produced bear the signature of a third party and without the defendant company’s chop. These are stated as in the Afidavit Jawapan Defendan:

3.3 Saya dinasihatkan oleh peguamcara Defendan dan menyatakan bahawa Plaintif gagal untuk membuktikan Defendan yang telah mengakuterima barang-barang kurma Plaintif tersebut berdasarkan invois-invois dan boring-borang penghantarserahan di Ekshibit M-1 yang jelas tidak menunjukkan akuterimaan oleh pihak Defendan. S/N epfYT2l2DEy4zj7ynRelqA

3.4 Saya selanjutnya menyatakan bahawa sekiranya tiada bukti dokumentari yang jelas menunjukkan akuterima barangan kurma Plaintif oleh Defendan mahupun Defendan telah mengakuterima invois-invois Plaintif, maka Defendan tidak terikat dengan terma-terma dan syarat-syarat invois Plaintif tersebut. [19] This Court’s attention however is attuned to these paragraphs in the Defence filed which states as below:

Defendan merujuk kepada perenggan 3 Penyataan Tuntutan Plaintif tersebut dan mengakui setakat Defendan telah menerima barang-barangan kurma daripada Plaintif yang kesemuanya bernilai RM 642,481.20 pada sekitar bulan April 2022 dan Defendan telah membayar Plaintif sebahagian daripada Harga barang-barangan kurma berjumlah RM 135,000.00 dan menafikan segala pengataan Plaintif dan meletakkan Plaintif di bawah beban bukti yang kukuh. Selanjutnya Defendan menyatakan seperti berikut:-

3.1 Plaintif telah menjual barangan-barangan kurma sebanyak 9,393 karton yang keseluruhannya bernilai RM 642,481.20 kepada Defendan melalui tujuh (7) penghantaran (batch) dan defendan telah menanggung kos pengangkutan untuk mengangkut barangan kurma Plaintif daripada sebuah Gudang swasta S/N epfYT2l2DEy4zj7ynRelqA di Negeri Selangor yang telah disewa oleh Plaintif untuk menyimpan barang-barangan kurma tersebut dan dihantar ke Gudang Defendan di Pulau Pinang.” [20] The figures mentioned in the 2 paragraphs are consistent with those stated in the Statement of Claim with the invoices in exhibit M-1 being sent/addressed to the defendant. [21] These 2 paragraphs in the pleaded Defence have clearly negated the argument put forth by the defendant. To now argue denial of receipt of the dates would be a departure from what is pleaded in the Defence which has acknowledged receiving dates worth the sum of RM 642,481.20 with part payment of RM 135,000.00 being made. [22] The Defence filed herein has not been amended and thus the defendant would be bound by the pleading. Numerous authorities, with one of them being Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357, have settled on the principle that a party, hereby being the defendant would be bound by its pleaded defence and cannot depart from it. [23] The argument of the defendant as put forward in opposing the Summary Judgment application is an apparent act by the defendant of approbating and reprobating the stand taken by the defendant and this not a position that is permissible to be taken. As decided in Cheah S/N epfYT2l2DEy4zj7ynRelqA Theam Kheang v City Centre Sdn Bhd & Other Appeals [2012] 2 CLJ 16: “In the other words of Sir Nicholas Browne-Wilkinson VC in Express Newspapers Pic v News (UK) Ltd and Others [1990] 3 All ER 376 at pp. 383 to 384: There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [24] Paragraphs 3 and 3.1 in the Defence also represent a judicial admission on the part of the defendant which should be taken cognisance of by the Court. Consignment issue [25] The defendant argues that the claim by the plaintiff is pre-mature as the transactions between the parties are on a consignment basis i.e with payment to be made only upon the defendant having sold the dates to buyers. [26] Upon a perusal of the documents produced, there is simply no basis for the defendant’s assertion as such. Not an iota of proof has been shown in the affidavit filed to show that the parties are bound by the S/N epfYT2l2DEy4zj7ynRelqA term of payment by consignment. Exhibit M-2 in the Afidavit Sokongan Plaintif which are the defendant’s payment documents do not state the amount of carton of dates that have been successfully sold to buyers hence negating the argument that payment is upon the defendant having sold the dates to buyers. [27] Furthermore paragraph 3.4 of the Defence states: “Defendan juga telah membayar RM 61,196.40 kepada Plaintif yang termasuk dalam jumlah bayaran RM 135,000.00 tetapi barangan kurma Plaintif untuk bayaran RM 61,196.40 termasuk dalam 8,314 karton barangan kurma Plaintif yang masih belum dijual tersebut. Defendan telahpun membuat sebahagian bayaran untuk barangan kurma Plaintif tersebut yang belum dijual.” [28] In reference to the excerpted paragraph, if truly the payment is on a consignment basis then surely the defendant would not pay the sum of RM 61,196.40 for dates yet to be sold. The documents in M-2 of the Afidavit Sokongan Plaintif and other documents before the Court again fail to state that the payment of RM 61,196.40 was made irrespective of the dates yet to be sold to buyers. [29] The term of cash payment basis in each invoice are neither objected to nor disputed by the defendant with the defendant having made part payment of RM 135,000.00 to the plaintiff. Since the delivery of the dates in the year 2021 until the filing of the Writ and Statement of S/N epfYT2l2DEy4zj7ynRelqA Claim, not a shred of evidence has been produced by the defendant to dispute the cash payment term stated in each of the invoices relating to the transaction. [30] To now aver that the payment is on a consignment basis rather than on a cash basis would fall foul of the principle of parole evidence rule as found under sections 91 and 92 of the Evidence Act 1950 which in essence states that when the terms of a contract have been agreed to by the parties and reduced into documentary form, then no evidence shall be given to prove the terms of the contract except the document itself. [31] In Choy May May & Ors v Prema Bonanza Sdn Bhd [2022] 8 CLJ 614 it was decided: “(iii) It is trite for contracting parties that no evidence can be given in proof of the contract’s terms, varying, adding to or subtracting from the terms of the written agreement: s.91 and s.92 of the Evidence Act 1950. See Tahan Steel Corp Sdn Bhd v Bank Islam Malaysia Bhd [2005] 1 SHLR 117, HC, that promises between parties must be referred to the contemporaneous documents. Small Holders Corp Sdn Bhd & Anor v Utusan Transport Sdn Bhd [1995] 1 LNS 223, HC, ruled that in the absence of vitiating factors, parties are bound to their bargain; see also Bank Islam Malaysia Bhd v Lim Kok Hoe & Anor And Other Appeals [2009] 6 CLJ 22; [2009] 6 MLJ 839, CA; Tan Ah Tong v Parveen Kaur [2012] 10 CLJ 159; [2011] 5 MLJ 428, CA. The Court will not assist in invalidating S/N epfYT2l2DEy4zj7ynRelqA an agreement that parties with common intentions had agreed to execute…” [32] The so-called consignment arrangement between the parties has never surfaced in any document initiating from the delivery of the dates in 2021 until it suddenly emerges in the defendant lawyer’s letters dated 23.08.2022 and 17.11.2022 which were after the filing of the Writ and Statement of Claim on 01.07.2022. This Court thus finds that the consignment arrangement was never part of the transaction and a mere afterthought on the part of the defendant. Non-issuance of debtor statement [33] This issue relates back to paragraphs 3 and 3.1 of the Defence. The defendant has clearly admitted to receiving dates worth RM 642,481.20 and has paid the plaintiff RM 135,000.00 as part payment. These averments by the defendant have put paid to the defendant’s argument that the non-issuance of any debtor statement has invalidated the claim and prejudiced the defendant. This issue is a non-starter based on the defendant’s own pleading. Conclusion [34] Based on those deliberations, this Court concludes that the learned Sessions Court Judge has not erred in arriving at her decision since no triable issues have been raised by the defendant. The appeal of the defendant is hereby dismissed with costs. S/N epfYT2l2DEy4zj7ynRelqA [35] The Summary Judgment application filed by the plaintiff and entered against the defendant is thus allowed to stand. Dated 15th June 2024. AZMI BIN ABDULLAH High Court Judge High Court of Malaya, Klang COUNSELS Counsel for the Plaintiff: Edvin Navis M/s Edvin Navis & Associates Advocates and Solicitors A-3-9, Avenue 8, Jalan 8/1, Seksyen 8, 46050 Petaling Jaya, Selangor. S/N epfYT2l2DEy4zj7ynRelqA Counsels for the Defendant: R. Thayalan Retanavalu M/s R. Thayalan & Co, C-08-07, Centum @ Oasis Corporate Park, No. 2, Jalan PJU 1A/2, Ara Damansara, 47301 Petaling Jaya, Selangor Darul Ehsan. S/N epfYT2l2DEy4zj7ynRelqA