(iv) CIMB No. 029969 30.6.2024 350,000.00 Total 1,400,000.00 [collectively referred to as the “said cheques”] [6] When the Plaintiff subsequently deposited the said cheques into his bank account at Public Bank Berhad, the said cheques were all dishonoured and returned by Public Bank Berhad with a remark “Drawer Sign Differs”. S/N ZxHx2/wZfk2mOua8ZS5hCg The Plaintiff’s Claim [7] The Plaintiff avers that he was surprised that the Defendant had issued the said cheques with differing signatures. Reference was made to photographs exhibited in the Plaintiff’s affidavit which show the Defendant signing the Settlement Agreement and the said cheques. The background of those photographs appears to be the interior of a restaurant. [8] The Plaintiff highlighted the final paragraph of the letter dated the Settlement Agreement that states: [9] Besides pleading breach of the Settlement Agreement, the Plaintiff pleaded his claim under the Bills of Exchange Act 1949, based on the fact that the said cheques are bills of exchange, relying more specifically on Sections 55 and 57 read together with Section 73 of the said Act. This was pleaded in para [10] of his Statement of Claim, as follows: [10] Learned counsel for the Plaintiff submitted that there is no triable issue in this case as the Plaintiff does not deny having signed the Settlement Agreement and issued the said cheques to pay the Defendant a total sum of RM1,400,000 – which had been dishonoured. S/N ZxHx2/wZfk2mOua8ZS5hCg [11] In his submissions, learned counsel for the Plaintiff referred to Sections 55, 57 and also S.73 of the Bills of Exchange Act, 1949 which states that a cheque is a bill of exchange drawn on a banker payable on demand. The Defendant’s Affidavit-in-reply [12] In his affidavit-in-reply, the Defendant attempts to raise triable issues by referring to a Loan Agreement dated 26th September 2017 made between the Plaintiff and several parties. The Defendant was not a party to that agreement. [13] The Defendant went on to allege that the Plaintiff forced him (“Plaintif memaksa saya”) to enter into a settlement agreement to settle the outstanding loan under the earlier loan agreement. He further alleged that he entered into the Settlement Agreement due to the Plaintiff forcing him to do so. A screenshot of the exact words in his affidavit, with the words “paksaan Plaintiff” underlined by him to emphasise it, is pasted below: [14] It was further contended in the Defendant’s affidavit that there would be unjust enrichment if the Plaintiff’s claim is to be allowed because the parties had allegedly signed a second settlement agreement dated 5th October 2023, a copy of which is exhibited and marked as “AA-2” in the Defendant’s affidavit-in-reply. S/N ZxHx2/wZfk2mOua8ZS5hCg Analysis of Facts And Law [15] Even though the judgment of the Supreme Court in Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400 on applications for summary judgment was written by Mohamed Azmi SCJ more than three decades ago, it continues to provide invaluable guidance to this day. First, the erudite judge reminded us that the issue raised by a defendant must not only be an issue but it must be a triable issue. Secondly, Azmi SCJ explained that a judge hearing an Order 14 application has a duty to assess and reject assertions or denials in a defendant’s affidavit which are equivocal, or lacking in precision or are inconsistent with undisputed contemporary documents or are inherently improbable, thereby rendering the issues raised by a defendant as not triable. The above principles are gleaned from the following passages from the judgment of Azmi SCJ: “In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the court. 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 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. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in 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.” [16] The Defendant did not dispute the fact that he did write the letter dated 26th May 2023 (which contains the Settlement Agreement) to the Plaintiff setting out his offer for a settlement of the Plaintiff’s claim against S/N ZxHx2/wZfk2mOua8ZS5hCg him. The Plaintiff avers that he signed at the bottom of the said letter to accept the terms proposed by the Defendant. The Plaintiff accepted the Defendant’s term that a payment of RM1,400,000 shall be full and final settlement of all existing claims, meaning that any further claims that the Plaintiff might have had against the Defendant are waived. A screenshot of that paragraph is pasted below: [17] Further, I noted from the images of the said cheques which were exhibited in the Plaintiff’s affidavit that they are cheques bearing the Defendant’s name as the account holder, i.e. issued from the personal account of the Defendant. [18] Fortunately for the Plaintiff who had the foresight of taking photographs (see exhibit “CT-4” in the Plaintiff’s affidavit dated 3rd January 2025) of the Defendant signing the Settlement Agreement and the said cheques in a place which appears to be a restaurant, the Defendant is not denying that it was his signature at the bottom of the letter (which is the Settlement Agreement) or denying his signatures on the said cheques which were drawn in favour of the Plaintiff as the payee. Those photographs prevented the Defendant from extricating himself. [19] The Defendant’s affidavit contains allegations of coercion, of being forced into the Settlement Agreement and issuing his cheques. However, there was neither any particulars of coercion nor any explanation whatsoever as to how the Plaintiff had allegedly coerced or forced him (see screenshot of his plea in para [14] above) to act against his free will. S/N ZxHx2/wZfk2mOua8ZS5hCg [20] With respect, surely a senior advocate & solicitor – whom the Defendant is – who had allegedly been compelled under threat of violence to sign a Settlement Agreement and issue cheques amounting to RM1,400,000 in a restaurant, would have seen fit to head for the nearest police station to lodge a police report as soon as he could leave the premises. As at the date of hearing of the Plaintiff’s application for summary judgment, there was no police report lodged by the Defendant. There was also no civil suit filed by the Defendant to invalidate the Settlement Agreement or the said cheques. Lastly, no counterclaim has been filed by the Defendant in this civil suit. [21] The legal position in Malaysia regarding cheques is the same as in the United Kingdom and most Commonwealth countries. S.73 Bills of Exchange Act 1949 states that a cheque is a bill of exchange drawn on a banker payable on demand, and that except as otherwise provided in the said Act itself, the provisions of that Act applicable to a bill of exchange payable on demand are applicable to a cheque. [22] I hold that the provisions of s.55(1)(a) of the Bills of Exchange Act 1949 – which are self-explanatory – are applicable to the said cheques which are bills of exchange. It states as follows: “(1) The drawer of a bill by drawing it:-