Valuable Concept Sdn Bhd v Personal Representative of the Estate of the Deceased Person, Salleh Bin Saring (CIVIL Suit No.: 52-16-02/2013)

This case concerns a continuing saga between the plaintiff and the defendant over a recovery of defaulted payment of an unsecured credit facility (the loan) that has been going on for almost a decade. The main suit commenced on 6.1.2011 and ended on 31.10.2013. The decision was given in favour of the plaintiff on 28.11.2013 (decision dated 28.11.2013). 2

At the material time, as far back in 2013, no notice of appeal was filed to the High Court against the decision dated 28.11.2013. Nor, did the plaintiff file any notice of application for leave to issue execution in respect of the same. The saga however takes a new turn on 22.11.2019 when the plaintiff initiated an enforcement proceeding to enforce the decision dated 28.11.2013 in this court.

The facts are in short compass. At the material time, the Plaintiff is a licensed moneylender company under the Moneylenders Act 1951 and Salleh bin Saring (the deceased defendant) is the registered owner of a piece of land held under PN 41638, Lot 20695, Pekan Dengkil, Daerah Sepang, Negeri Selangor (the said land).

At the deceased defendant’s application, the plaintiff granted the loan of RM220,000.00 to the deceased defendant pursuant to the Moneylending Agreement dated 22.9.2005. The deceased defendant had duly accepted the terms and conditions stipulated therein. The deceased defendant however defaulted payment.

The plaintiff then commenced action in the Sessions Court against the deceased defendant. The prayers sought for are reproduced verbatim: “Jumlah wang sebanyak RM239,800.00 setakat 22.3.3006;

Faedah pada kadar 18% setahun terhadap RM220,000 dari tarikh 23.3.2006 sehingga tarikh penghakiman; 3

Faedah pada kadar 8% setahun terhadap RM220,000 dari tarikh penghakiman sehingga tarikh penyelesaian penuh; …” [6] In the course of trial of the main suit, the deceased defendant passed away. The plaintiff then filed an application (Encl. 31) to substitute the deceased defendant. Counsel for the deceased defendant acceded to the application, with a condition, the intended substitution should be made without naming any persons to be the personal representative of the estate of the deceased defendant. On 9.10.2013, the Sessions Court allowed the plaintiff’s application. Accordingly, the deceased defendant was substituted by the defendant. [7] As matters stood, the trial proceeded. On 28.11.2013, the Sessions Court granted the application in favour of the plaintiff wherefore ordering the defendant to pay the defaulted payments for the loan. The plaintiff nevertheless commenced no action against the defendant to execute the decision dated 28.11.2013 NOTICE OF APPLICATION FOR LEAVE TO ISSUE WRIT OF A SEIZURE AND SALE [8] Almost six years later, the plaintiff had on 22.11.2019, filed an application for leave to issue writ of a seizure and sale vide Encl. (Notice of Application) in respect of the said land in this court, supported by an Affidavit in Support (Encl. 48A), executing the decision dated 28.11.2013. 4 [9] This matter then came before me for consideration. Having considered the application and heard the argument of both parties, I had on 13.3.2020 dismissed the plaintiff’s application in Encl. 48, with costs. The following are my reasons for the dismissal. CONTENTIONS AND FINDINGS Enforcement of judgment proceeding against the defendant [10] Counsel for the defendant put forth an argument that the plaintiff in commencing this action, did not institute it against a duly appointed legal representative of the estate of the deceased defendant. That, he submitted, amounts to an apparent non-compliance with a mandatory provision of Order 15 rule 6A(4)(a) of the Rules of Court 2012 (ROC 2012). He further informed this court that there were no letters of representation of any sort issued in respect of the deceased defendant’s estate. [11] In response, counsel for the plaintiff submitted that the decision dated 28.11.2013 granted by the Sessions Court in the main suit was in respect of the same defendant, i.e., personal representative of the estate of the deceased person, Salleh bin Saring. This order, according to him, unless set aside or amended, is an effective and of significant force. For that reason, he submitted that the Sessions Court should consider and allow this application. 5 [12] So the question arises whether the execution proceeding in the present case could be commenced against the defendant. [13] I shall now address this question, albeit, not at a great length. To begin with, I acknowledge the force in counsel for the defendant’s submission. It is trite that the institution of an action against estate of a deceased person is governed by Order 15 rule 6A (4) of the ROC 2012. It provides: "15 Causes of action, counterclaims and parties …

Proceedings against estates (O. 15 r. 6A) …

In any such action as is referred to in paragraph (1) or (3)-

the plaintiff shall, during the period of validity for service of the summons, apply to the Court for an order appointing a person to represent the estate of the deceased for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;” (Emphasis added) [14] The scope of Order 15 rule 6A (4) of the ROC 2012 has been exhaustively considered in a series of authoritative precedents, most notably in Yong Siew Choon v. Kerajaan Malaysia [2003] 2 6 CLJ 106. In delivering judgment of the Court of Appeal, Gopal Sri Ram (JCA) addressed this issue with utmost clarity that merit quotation in full: “Returning to the present case, we would observe that the respondent was perfectly entitled (by reason of O. 15 r. 6A to commence the action in the manner intituled. But having done so, it did nothing else save to prosecute the action to judgment. In other words, there was blatant non-compliance with O. 15 r. 6A(4). It is our judgment that while O. 15 r. 6A is a remedial provision of adjectival law, it is important that a litigant who seeks to take advantage of it must comply with its terms before he or she may take advantage of any provision of substantive law. See, Balachandran v. Chew Man Chan [1996] 1 CLJ 169; [1995] 4 MLJ 685, per Vincent Ng J; Singapore Gems Co v. The Personal Representives for Akber Ali (deceased)(supra). Non-compliance therefore renders the action more than a mere irregularity. The entire action is badly constituted as a matter of substantive law. For, it is only in an action against the duly appointed legal representative of the estate of a deceased that a judgment may be obtained that may be enforced against the assets of the estate. That is why O. 15 r. 6A(7) of the RHC makes it abundantly clear that if the terms of O. 15 r. 6A of the RHC are complied with then an order or a judgment obtained in the action shall bind the estate of a deceased person. Conversely, therefore, if the 7 provisions of O. 15 r. 6A of the RHC are not complied with then any order or judgment is useless as it would be wholly unenforceable against the estate of the deceased”. (Emphasis added) [15] His Lordship further added: “To summarise, the rule of substantive law is that an action may be commenced and maintained by or against the estate of a deceased after, and only after, letters of representation have been extracted. Order 15 r. 6A provides a very limited exception to that substantive rule by permitting the commencement of an action against the estate of a deceased even before the extraction of letters of representation. But it regulates the future prosecution of the action by requiring (in r. 6A(4)) certain steps to be taken in that respect and specifying the time limited for the taking of such steps. Failure to observe the terms of r. 6A(4) of O. 15 will therefore deprive a plaintiff of the beneficial effect of r. 6A and thereby activate the principal rule of substantive law governing such actions so as to render the action already commenced a nullity”. (Emphasis added) [16] The foregoing quotations were cited with approval by Augustine Paul FCJ in the Federal Court case of Kerajaan Malaysia v. Yong Siew Choon [2005] 4 CLJ 537. 8 [17] In the course of preparing this judgment, my research discovered that there appears to be another action of similar nature commenced in Shah Alam Sessions Court against personal representative of the estate of Salleh bin Saring by one Teo Tiam Teng. It concerned a friendly loan granted by Teo Tiam Teng to Salleh bin Saring, i.e, the deceased defendant, amounting to RM600,000.00. That was an independent and a separate action relating to a distinct subject matter altogether. But interestingly, Teo Tiam Teng and the personal representative of the estate of Salleh bin Saring in that action were represented by the same solicitor as in the present case. I found upon careful perusal that Teo Tiam Teng, at the material time, was the director of the plaintiff in the present case. The Sessions Court granted Teo Tiam Teng’s application for Summary Judgment pursuant to Order 14 of the ROC 2012. The personal representative of the estate of Salleh bin Saring then appealed to the High Court. Similar issue arose regarding institution of an action against the personal representative of the estate of Salleh bin Saring where the High Court held “the action is a nullity by reason that the proper defendant has not been named”. Accordingly, the High allowed the appeal and set aside the decision of the Sessions Court (See Personal Representative of Salleh Saring Deceased v. Teo Tiam Teng [2015] 1 LNS 869). For reasons known to the respective parties and rather to my surprise, no disclosure was made as regards the foregoing chronicle, at the hearing of the present application before me. [18] Still and all, as is evident from the intitulement of the present Notice of Application, this action is brought by the plaintiff against the personal representative of the estate of the deceased person, 9 Salleh Bin Saring. Clearly, this action is not instituted against a duly appointed personal representative. And that, is a blatant non-compliance with Order 15 rule 6A (4) of the ROC 2012. [19] In light of the stark absence of the necessary appointment, I hold that the plaintiff’s application is wholly without foundation. That is, in my view, an attempt to make bricks without straw. And for that reason alone, the plaintiff’s application should be dismissed. [20] However for completeness, I would address the merit of this application. Assuming for a moment that the plaintiff’s action is commenced against a duly appointed personal representative of the estate of the deceased defendant, should that action succeed? I now turn to the very pith and kernel of the plaintiff’s application. Jurisdiction of the Sessions Court under the Subordinate Courts Act 1948 [21] The contentious argument between counsel for both the plaintiff and the defendant revolves around the power and the jurisdiction of the Sessions Court in respect of enforcement of judgment. I note, at the outset, that this issue was profoundly considered by Umi Kalthum Abdul Majid JCA in the case of Peh Wee Lee & Anor v. Pendaftar Hakmilik Negeri Sembilan & Ors [2018] 5 CLJ 681 (COA) upon which, in this judgment, a great reliance is primarily placed. 10 [22] Counsel for the plaintiff argued that as the decision dated 28.11.2013 in the main suit was granted by the Sessions Court, application for leave to issue writ of a seizure and sale must also be necessarily made in the Sessions Court. Against that argument, the plaintiff submitted that the Sessions Court has the necessary jurisdiction to order as such. [23] In response, counsel for the defendant subscribed to the view that the Sessions Court could not proceed with this application for want of jurisdiction. He submitted the High Court is the forum conveniens to deal with the application of this nature [24] The question is whether the Sessions Court has the jurisdiction to issue writ of a seizure and sale in respect of the immovable property. The question admits only one answer, and that is in the negative. My reasons are these: [25] First, jurisdiction of the Sessions Court under the Subordinate Courts Act 1948 (SCA 1948). The starting point is section 65 of the SCA 1948. It provides the extent and scope of jurisdiction of a Sessions Court as follows: “65 Civil jurisdiction of Sessions Courts

Subject to the limitations contained in this Act, a Sessions Court shall have —

unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle accidents, landlord and tenant and distress; 11

jurisdiction to try all other actions and suits of a civil nature where the amount in dispute or the value of the subject-matter does not exceed one million ringgit; and

without prejudice to the generality of paragraph (b), jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission of contracts or for cancellation or rectification of instruments, within the jurisdiction of the Sessions Court …” (Emphasis added) [26] Section 65(1) of the SCA 1948 provides limitations to the jurisdiction of the Sessions Court by stating “Subject to the limitations contained in this Act…”. Of direct relevance to the present case, section 69 of the SCA 1948. It provides: “69 Exceptions to jurisdiction Sessions Courts shall have no jurisdiction in actions, suits or proceedings of a civil nature -

relating to immovable property except as provided in sections 70 and 71; …”. [27] So far as concerns the foregoing provisions, the law is clear. The Sessions Court is not clothed with jurisdiction to deal with matter relating to immovable property, save for matters as provided in sections 70 and 71 of the SCA 1948. And the present case does not fall within the purview of the aforesaid exceptions. All this, is as clear as a pikestaff, without the necessity of further argument. 12 [28] Second, brief comparative analysis between the powers of the High Court under the Courts of Judicature Act 1964 (CJA 1964) with that of the Sessions Court under the SCA 1948 concludes that the Sessions Court has no jurisdiction to issue writ of a seizure and sale in respect of the immovable property. In what follows, the statutory provisions governing such mode of execution. Section 25 of the CJA 1964 headed “Powers of the High Court” provides: “(1) Without prejudice to the generality of Article 121 of the Constitution the High Court shall in the exercise of its jurisdiction have all the powers which were vested in it immediately prior to Malaysia Day and such other powers as may be vested in it by any written law in force within its local jurisdiction.

Without prejudice to the generality of subsection (1) the High Court shall have the additional powers set out in the Schedule: Provided that all such powers shall be exercised in accordance with any written law or rules of court relating to the same.” (Emphasis added) [29] Item 9 to the Schedule to the CJA 1964 grants the High Court power to issue the writ of a seizure and sale. It provides:

“Writs of seizure and sale Power to enforce judgment of the Court for the payment of money to any person or into Court by a writ, to be called a writ of a seizure and sale, under which all the property, movable or immovable, of whatever description, of a judgment debtor 13 may be seized, except property which is exempt from seizure and sale under any written law.” (Emphasis added) [30] Upon close scrutiny, I find no equivalent provisions to section 25(2) read with Item 9 to the Schedule to the CJA 1964 in relation to power to issue writ of a seizure and sale in respect of immovable property in the SCA 1948. It therefore appears clear that the plaintiff in the present case should file the respective application in the High Court. [31] Third, counsel for the plaintiff advanced an argument that the Sessions Court is seized with jurisdiction to issue writ of a seizure and sale in respect of immovable property by virtue of section 7 of the Specific Relief Act 1950 (SRA 1950) and Order 45 rule 3 of the ROC 2012. In advancing this argument, he attached particular weight to the case of Mas Anita Abdullah v. Lew Wai Koung [2014] 7 CLJ 67 (COA), which to him is of direct relevance. [32] I respectfully disagree. But first, I find it necessary to reproduce below the respective provisions: Section 7 of the SRA 1950 provides: “7 Recovery of specific immovable property

Subject to subsection (2), a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the law relating to civil procedure. …” 14 And Order 45 rule 3 of the ROC 2012, so far as material provides: “45 Enforcement of judgment and orders …

Enforcement of judgment for possession of immovable property (O. 45 r. 3)

Subject to these Rules, a judgment or order for the giving of possession of immovable property may be enforced by one or more of the following means:

a writ of possession; …

A writ of possession to enforce a judgment or order for the giving of possession of any immovable property shall not be issued without leave of the Court …

Such leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the Court sufficient to enable him to apply to the Court for any relief to which he may be entitled.” [33] Counsel for the plaintiff’s argument is, in my view, based on a misapplication of law. The reason is this. Section 7 of the SRA 1950 provides for recovery of specific immovable property and Order 45 rule 3 of the ROC 2012 provides for enforcement of judgment for possession of immovable property by means of writ of possession. Both provisions, as I see them, have no bearing on the present 15 application. In so holding, I distinguish the facts in Mas Anita Abdullah (supra) relied upon by counsel for the plaintiff. In Mas Anita Abdullah (supra), the defendant rented out his house to the plaintiff under a tenancy agreement. The plaintiff defaulted in the payments of the monthly rentals for several months and commenced action in the Sessions Court to recover the arrears of rental as well as to recover vacant possession of the house. But instead of applying for writ of possession pursuant to section 7(1) of the SRA 1950 read with Order 45 rule 3 of the ROC 2012, the defendant elected to proceed with re-entry onto the land pursuant to section 234(2) of the National Land Code 1965. This, the Court of Appeal held was wrong. In addressing this issue, Hishamudin Mohd Yunus JCA observed “…the defendant, having obtained an order for vacant possession, has only taken the first step towards enforcing his right to possession of the house: he has to take the further step of obtaining leave of the court for the issuance of a writ of possession in order to enforce the judgment” [34] Contrary to the plaintiff’s stance, Mas Anita Abdullah (supra), in my opinion, appears to be of no relevance. Nor can I see a parallel between that case to that of the present. Here, the plaintiff commenced the main suit in the Sessions Court for the recovery of debt. On 28.11.2013, the Sessions Court granted decision in favour of the plaintiff. Instead of commencing execution proceeding for leave to obtain writ of a seizure and sale for the said land in the High Court, the plaintiff elected to commence so in the Sessions Court. In this regard, I reiterate my findings as alluded to earlier, i.e., the 16 Sessions Court has no jurisdiction to issue writ of a seizure and sale in respect of immovable property. [35] Be that as it may, even if the plaintiff’s application in this court were for leave to enforce the judgment by way of writ of possession pursuant to section 7 of the SRA 1950 and Order 45 rule 3 of the ROC 2012, I do not think, on both facts and law, it could have done so. So far as I am aware, the plaintiff advanced no evidence suggesting that it is “a person entitled to the possession” of the said land. And as is apparent, the judgment the plaintiff seeks to enforce in the present case, relates not to “a judgment or order for the giving of possession of immovable property”, but a mere recovery of debt. All in all, I hold that the plaintiff’s reliance on section 7 of the SRA 1950 and Order 45 rule 3 of the ROC 2012 is misconceived. CONCLUSION [36] For the reasons adumbrated, I hold that the plaintiff’s application for leave to obtain writ of a seizure and sale of the said land is devoid of merit. Accordingly, I dismiss the plaintiff’s application in Encl. with costs. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Sepang, Selangor Dated: 13 April 2020 17 Counsel for the plaintiff : Mr. M Kunasegaran a/l Maniveloo Solicitors for the plaintiff : Tetuan Kuna & Co No. 8-2, Jalan KP 1/1, Kajang Prima, 43000 Kajang, Selangor. Counsel for the defendant : Mr. Razali bin Md Nor Solicitors for the defendant : Tetuan Ahmad Fuad Amin & Partners, No. Tingkat 2, Medan PBI, Seksyen 9, 46350 Bandar Baru Bangi, Selangor.