IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION)
SUIT NO. D1-22-841-2003
AFFIN-ACF FINANCE BERHAD … PLAINTIFF
VASANTHA GOBI A/L GOVINDASAMY … DEFENDANTS
GROUNDS OF DECISION (Enc. 1)
BEFORE HIS LORDSHIP TUAN ANANTHAM KASINATHER JUDGE HIGH COURT MALAYA
KUALA LUMPUR IN OPEN COURT
The Plaintiff entered into a Hire Purchase Agreement (‘Agreement’) with Asia Commercial Finance (M) Berhad. This entity was subsequently known as Affin-ACF Finance Berhad and now known simply as Affin Bank (Q & A 8 of WSPW 3). The subject matter of the agreement was a BMW 318i motor vehicle bearing registration number NAG 373. Under the terms of the Agreement dated 3rd October 1997, the Defendant agreed to pay 59 monthly installments of RM 1,561.00
commencing 3rd November 1997 and a final payment of RM 1526.00 during the 5 year tenure of the Agreement. The Defendant repeatedly defaulted in the payment of the installments causing the Plaintiff to issue demands and reminders for payment and numerous fourth schedule notices. A fourth schedule notice can only be issued pursuant to the terms of the Hire Purchase Act upon the Defendant being in default for two successive months. According to PW 1, the last payment made by the Defendant under the Agreement was the amount of RM 1,561.00 on 6th March 2000. However, even after payment of this amount, the Defendant’s account was still in arrears of 4 months. This prompted the Plaintiff to issue a fourth schedule notice to the Defendant on 7th March 2000. Under the provisions of the Hire Purchase Act, the Plaintiff can only issue a repossession notice on the expiration of 21 days of the issuance of the fourth schedule notice.
The Defendant complained that his car had been repossessed by a repossession agent appointed by the Plaintiff on 23rd March 2000. According to PW1, the Defendant called at her office on more than one occasion demanding to know the identity of the Plaintiff’s repossession agent responsible for repossessing motor vehicle NAG 383 (see Q and A 27 and 30 of WSPW1). PW1 denied issuing any repossession order. PW 1 after refusing to require its only repossession agent to attend personally for identification by the Defendant, instead, produced a photograph of him, one Encik Kamarulzaman, for the
Defendant’s viewing. According to PW1, the Defendant conceded after looking at the photograph that the person who repossessed NAG 383 did not resemble Encik Kamarulzaman (see Q and A 30-31 of WSPW 1). According to PW1, the Plaintiff never instructed its repossession agent or for that matter, any person, at all, to repossess the Defendant’s motor vehicle since as of 23rd March 2000, 21 days had not lapsed since the issuance of the 4th schedule notice on 7th March 2000. PW 1, at the request of the Defendant, then, produced the Plaintiff’s standard ‘memorandum to repossess’ to make known to him the form of its standard repossession order. According to PW 1, the Defendant, again, appeared satisfied that the repossession order produced to him by the agent who repossessed NAG 383 was different from the Plaintiff’s repossession order (Q and A 32 and 34 of WSPW 1).
Upon the expiration of 14 days from the issuance of the fourth schedule notice, the Plaintiff issued notice of defaulting hirer to the Defendant, informing him that on the expiration of the notice period stated therein, the Plaintiff proposed to repossess the vehicle, in the event of the outstanding arrears remaining unpaid (Q and A 35 of WSPW 1). According to PW 1, the Plaintiff issued this notice, notwithstanding, the Defendant’s claim that NAG 383 had been repossessed because the Defendant produced no evidence that NAG 383 had been stolen. The Defendant having refused to produce a copy of police report purportedly lodged by him (Q and A 36 of
WSPW1). According to PW1, the Defendant thereafter demanded that he be allowed to examine the vehicles in the repossession yards of the Plaintiff to ascertain the location of his vehicle. The Plaintiff acceded to this request and the search for NAG 383 was conducted by the Defendant at the Plaintiff’s repossession yards, but to no avail (Q and A 39-40 of WSPW1).
The police report lodged by the Defendant produced a result in form of PW 1 receiving a phone call from the police enquiring about Encik Kamarulzaman. At the request of the police, the personal particulars of Encik Kamarulzaman were furnished to the police. According to PW 1, Encik Kamarulzaman did attend the police station and lodged a police report himself (Q and A 41-42 of WSPW 1). Since the Defendant refused to make any payment of the outstanding installments, the Plaintiff issued a certificate of indebtedness relating to the indebtedness of the Defendant as at 28th March 2000 (Exh. P1 and Q & A 44 of WSPW 1). The certificate of indebtedness was followed by a letter of demand and thereafter the filing of a summons in the Sessions Court for the recovery of the amount in the certificate of indebtedness together with interest (Q and A 45-47 of WSPW 1).
According to PW 1, the Defendant’s initial response to the claim filed by it in the Sessions Court was to file a memorandum of appearance offering to settle the arrears in
monthly installments of RM100.00. However, on the first mention date, the Defendant, instead, applied to the Sessions Court to transfer the Plaintiff’s claim to the High Court on the grounds that he had a Counter-claim which exceeded the jurisdiction of the Sessions Court. Upon the transfer of the Plaintiff’s claim to the High Court, the Defendant filed a statement of defence and Counter-claim. By the Counter-claim, the Defendant sought general and special damages of approximately RM 500,000 and loss of profits. The vehicle NAG 383 has never been recovered and for reasons best known to the Defendant, no claim made against the insurers for the theft of the vehicle (Q and A 51 and 52 of WSPW 1).
Application for adjournment
When this case came up for case management on the 19th April 2010, I managed to persuade Counsel for the Plaintiff to discontinue her claim since the claim was more than 7 years old. However, this settlement could not be effected because the Defendant refused to withdraw his Counter-claim. This caused me to remind the Defendant, who was present in person in my Chambers that if he was proposing to pursue his Counter-claim on principle, he should comply with my directive for trial and be ready to proceed with the trial on the dates fixed for trial. I also informed the Defendant personally that there would be no adjournment of the trial. On the morning of the trial, the Defendant appeared in person and sought an adjournment on the grounds that his solicitor had discharged herself recently
and had only made available to him the cause papers on 18th June 2010. The Defendant maintained that he did not have sufficient time to obtain the services of a new lawyer to conduct the trial on his behalf. I dismissed the application for adjournment as, in my view, a Defendant proposing to resist a claim involving the recovery of nothing more than a simple debt should be ready to defend his position, when required to do so. All the more so in respect of a debt which was alleged to be outstanding since 2003. Accordingly, the Defendant can hardly complain of being taken by surprise, if the Plaintiff insisted on proceeding with the claim. Besides, I had made it very clear to the Defendant personally that there would be no adjournment. Against this background, I did not consider the Defendant’s request to adjourn the trial to be a reasonable one and certainly not in the interests of justice.
Merits of the claim
The Plaintiff’s claim is nothing more than a simple case for the recovery of outstanding monthly installments under a Hire Purchase Agreement. The outstanding installments can be easily computed since it is nothing other than the difference between the total installments payable less the aggregate of the installments already paid. The Plaintiff’s claim the sum of RM 49,094.28 as representing this difference as of 28th March 2000 together with interest at 8% p.a from 29th March 2000 till payment. Plaintiff produced a certificate of indebtedness (Exh. P1), which according to clause 36 of the Agreement is prima
facie evidence of the Defendant’s indebtedness to the Plaintiff. Since the filing of the claim, the interest has continued to accrue on this outstanding sum resulting in the Plaintiff producing though PW 2 a new certificate of indebtedness in the sum of RM 161,643.32 (Exh. P2). The Defendant when cross examining PW 1, did not challenge the accuracy of the certificate of indebtedness thereby rendering the certified amounts to be conclusive of the quantum of the Defendant’s indebtedness to the Plaintiff. Be that as it may, since the amount certified in Exh. P2 appears to be computed on a compound basis whereas the Plaintiff is only entitled to simple interest of 8% under the terms of the agreement, I hold the Plaintiff to be entitled to simple interest on the outstanding installments only.
As regards the Defendant’s allegation that he was not liable for the installments because NAG 383 was wrongly repossessed, the Plaintiff’s witnesses gave evidence that the Plaintiff had never issued any repossession order for the repossession of NAG 383. The Plaintiff’s witnesses admitted to having knowledge of the complaint lodged against it with Bank Negara Malaysia but claimed to have dealt with the complaint satisfactorily by replying to Bank Negara. In my judgment, irrespective of the merits of the complaint, the Defendant is liable to pay the monthly installment under the Agreement. Under the terms of the Agreement, the liability of the hirer for such installments does not cease on the theft of the vehicle.
The remedy open to the Defendant, in that event, is to recover the value of the vehicle from the insurers. Hence, the surprise expressed by PW 1 that the Defendant had not thought it fit to lodge a claim with the insurers (Q & A 52 of WSPW1). Of course, it is open to the Defendant to institute collateral proceedings against the Plaintiff for illegal repossession. This he did, by way of the Counter-claim. The filing of the Counterclaim, however, does not amount to a defence to the Plaintiff’s claim for the outstanding installments. Upon the Plaintiff closing its case, I invited the Defendant to go into the box and lead evidence on his defence. The Defendant declined to lead evidence and informed me that he was unable to do so in the absence of legal representation. I then invited Counsel for the Plaintiff to make oral submissions. On the conclusion of Counsel’s oral submissions, I, again, invited the Defendant to make a reply, which he declined. I then adjourned the matter for decision to 1st July 2010.
On the conclusion of the Plaintiff’s claim, I invited the Defendant to lead evidence on his Counter-claim. The Defendant refused to do so. He insisted that he was not in a position to proceed with his Counter-claim in the absence of legal representation. As the Defendant’s Counter-claim was fixed for hearing on the same date as the Plaintiff’s claim, I dismissed the Defendant’s Counter-claim and informed the parties that I will determine the amount of cost payable by the
Defendant in respect of the Counter-claim on the morning of the decision.
I order judgment for the Plaintiff in the sum of RM 49,094. 28 together with interest at 8% p.a on the sum of RM 49,094.28 from the 29th March 2000 till payment. I order the Defendant to pay costs of RM 10,000 in respect of Enc. 1. I order the Defendant to pay costs of RM 2,000 in respect of his Counterclaim which I had dismissed with costs on the morning of the trial.
(Y.A. Tuan Anantham Kasinather)
Pesuruhjaya Kehakiman Mahkamah Tinggi Kuala Lumpur
Date of Decision: 2nd July 2010
Ms. C.P. Lee
(Tetuan Sidek Teoh Wong & Dennis) … for the Plaintiff
Mr. Vasantha Gobi Govindasamy
Defendant present in person