AntaraBank Kerjasama Rakyat Malaysia Berhad … PlaintifDanKoperasi Belia Nasional Berhad …. Defendan

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA BAHANGIAN DAGANG GUAMAN NO : 22M-209-12/2015

 

ANTARA

 

BANK KERJASAMA RAKYAT MALAYSIA BERHAD … PLAINTIF

 

DAN

 

KOPERASI BELIA NASIONAL BERHAD …. DEFENDAN

 

Grounds of Decision

 

Azizah Nawawi, J:

 

Applications

 

[1] This is the Plaintiff’s application for summary judgment for the sum of RM88,900,317.93 premised on Term Finance – i Facility which was granted by the Plaintiff to the Defendant.

 

[2] After hearing the parties, this Court has allowed the Plaintiff’s application for summary judgment with costs of RM5,000.00.

 

The Salient Facts

 

[3] The Plaintiff is a cooperative body registered under the Cooperative Society’s Act 1993, and is subject to the Bank

 

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Kerjasama (M) Bhd (Special Provisions) Act 1978. The Plaintiff’s business includes the business of providing loans.

 

[4] The Defendant is a cooperative registered under the Cooperative Society’s Act 1993 and incorporated under the Companies Act 1965.

 

[5] Upon an application by the Defendant, the Plaintiff had approved a Term Finance – i Facility under the principles of Bai’ ‘Inah to the Defendant vide a letter of offer dated 13.4.2012, for the sum of RM50,000,000.00 subject to such terms and conditions. The said offer was accepted by the Defendant vide a letter of acceptance dated 17.4.2012.

 

[6] Pursuant to the Bai’ Al – ‘Inah principles, the Asset Sale Agreement dated 16.5.2012 was signed by both parties whereby the Defendant has agreed to buy from the Plaintiff Rakyat Holdings Sdn Bhd shares at the price of RM120,612,734.40. The Plaintiff signed the Agreement on 16.5.2012.

 

[7] The parties then signed the Asset Purchase Agreement dated

 

16.5.2012 whereby the Defendant has agreed to sell, and the Plaintiff has agreed to buy the same asset at RM50,000,000.00.

 

[8] The purpose of the facility is to provide capital for personal loans of the members of the Defendant. Under the agreement between the Defendant and its members, any payments of the personal loans from its members will be collected by the Defendant

 

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through Biro Perkhidmatan Angkasa and paid into the Defendant’s account with the Plaintiff.

 

[9] Vide a Deed of Assignment (Proceeds) dated 15.5.2012, the Defendant had assigned all the payments due from its members to the Plaintiff.

 

[10] When the Defendant defaulted in the installment payments, the Plaintiff issued a notice of demand, and eventually terminated the agreement vide a letter dated 5.11.2015 when the Defendant continued with the default in the payments of the outstanding sum. The amount claimed in the said letter of demand is RM88,900,317.93 as at 31.10.2015.

 

The Findings of the Court

 

[11] In an application for summary judgment, this Court is guided by the principles laid down in National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 CLJ 220, where it was stated by the Federal Court as follows:

 

“… We think it appropriate to remind ourselves once again that in every application under O. 14, the first considerations are (a) whether the case comes within the order and (b) whether the plaintiff has satisfied the preliminary requirements for proceeding under O. 14. For the purposes of an application under O. 14, the preliminary requirements:-

 

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(i) the statement of claim must have been served on the Defendant;

 

(ii) the defendant must have entered an appearance;

 

(iii) the affidavit in support of the application must comply with the requirements of r. 2 of the O. 14

 

… If the Plaintiff fails to satisfy either of these considerations, the summons may be dismissed. If however, these considerations are satisfied, the plaintiff will have established a prima facie case and he becomes entitled to judgment. This burden then shifts to the defendant to satisfy the court why judgment should not be given against him… ”

 

[12] In the present case, the Plaintiff had satisfied the preliminary requirements as laid down in the Kayu Raya’s case that is:

 

(i) the Statement of Claim have been served on been served on the Defendant;

 

(ii) the Defendant has entered appearance; and

 

(iii) the Affidavit in Support is in compliance with O. 14 r. 2 ROC 2012

 

Therefore, the burden is then shifted to the Defendant to satisfy the Court why Judgment should not be entered against them.

 

[13] In Bank Negara Malaysia v Mohd Ismail [1992] 1 CLJ 627 the

 

Supreme Court held that the duty of a Judge does not end as soon as the fact is asserted by one party, or denied or disputed

 

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by the other on affidavit. The Judge has a duty to reject such assertion or denial if such assertion or denial is equivocal or lacking in precision or is inconsistent with undisputed contemporary documents or is inherently improbable. The Court will have to identify the issues of fact or law and to determine whether they are triable.

 

[14] The first issue raised by the Defendant is that there was no actual agreement between the parties to buy the shares of Rakyat Holdings Sdn Bhd (‘the said shares’) because the Defendant did not have the intention nor the agreement to buy the said shares. Therefore, the Defendant submits that there was no actual consent to support the Asset Sale Agreement dated 16.5.2012 and the said Agreement is in breach of section 13 of the Contracts Act 1950 which provides that “Two or more persons are said to consent when they agree upon the same thing in the same sense.”

 

[15] The Defendant also submits that the Asset Sale Agreement dated

 

16.5.2012 was in breach of section 31 and 32 of the Sale of Goods Act 1957 as there was no intention on the part of the Plaintiff to give possession of the said CPO to the Defendant. Therefore, the Defendant submits that Asset Sale Agreement dated 16.5.2012 is null and void as it is in breach of the Contracts Act 1950 and the Sale of Goods Act 1957.

 

[16] However, if we look at the Defendant’s Statement of Defence dated 22.1.2016, paragraph 3 reads as follows:

 

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3. Defendant selanjutnya menyatakan seperti berikut:

 

a. Defendant tidak tahu menahu mengenai Perjanjian Jualan ast dan Perjanjian Belian Aset yang keduanya bertarikh 16.6.2012 di antara Plaintif dan Defendant berkaitan juak beli unit saham Rakyat Holdings Sdn Bhd (Sijil No: 7443-7502, 6901-7350, 6002-6011, 50005009, 4102, 1830-1839);

 

b. Defendant tidak pernah menandatangani dan/atau diserahkan oleh Plaintif sesalinan Perjanjian – Perjanjian yang dimaksudkan di dalam Pernyataan tuntutan.”

 

[17] Therefore, the issue of whether the Asset Sale Agreement dated

 

16.5.2012 is null and void as it is in breach of the Contracts Act 1950 and the Sale of Goods Act 1957 are not pleaded issues. As this is not a pleaded issue, the Defendant cannot simply raise the same either in the affidavit or in their submission. In Janagi v Ong Boon Kiat [1971] 2 MLJ 196, the Court held as follows:

 

“A judgment should be based upon the issues which arise in the suit and if such a judgment does not dispose of the questions as presented by the parties it renders itself liable not only to grave criticism but also to a miscarriage of justice. It becomes worse and is unsustainable if it goes outside the issues. Such a judgment cannot be said to be in accordance with the law and the rules of

 

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procedure. It is the duty of the courts to follow the rules of procedure and practice to ensure that justice is done. These rules are meant to be observed and respected.”

 

[18] The next issue raised by the Defendant is that there are several breaches of the Syariah Advisory Council (SAC) Circular on the resolution on Bai’ ‘Inah, and this renders the Asset Sale Agreement dated 16.5.2012 to be null and void.

 

[19] However, as this issue has not been pleaded in the Defendant’s Statement of Defence, the same is not for consideration before this Court. The Defendant had simply filed a bare denial consisting of only 6 paragraphs in its Statement of Defence.

 

[20] As such, I am of the considered opinion that the Defendant has failed to establish any triable issues that merits the case going for trial.

 

[21] Added to that, based on the documents, I find that the parties have entered into a valid contract because as the Defendant had signed the contract, they have agreed to the terms and conditions stipulated therein. Therefore pursuant to section 10 of the Contracts Act 1950, the said contract is valid when both parties have freely consented to enter into the contract, for a lawful consideration and with a lawful object. In Arab-Malaysian Merchant Bank Bhd v Silver Concept Sdn Bhd [2006] 8 CLJ 9, the Court held that:

 

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“[54] Parties have agreed before executing the agreements, and without any undue pressure or persuasion, to the preconditions of the Islamic based contract. As mentioned above, as parties have agreed to be bound by theal-aqd and hence have a conclusive contract (Uqud), they are thus bound by the obligation. Both parties are equally bound and must comply with the conditions of the Uqud as ordained by Allah at Ch. 5:1 of the al-Quran. On that premise the defendant here must comply and be bound by his willingness to contract into the impugned agreements. He cannot contract out now unless there are cogent reasons to justify that act. Here I found none.” (emphasis added)

 

[22] In Smallholders Corp Sdn Bhd & Ors v Utusan Transport Sdn

 

Bhd [1995] 4 MLJ 587, the Court held that:

 

“ When documents containing contractual terms are signed, then in the absence of fraud or misrepresentation the party signing it is bound, and it

 

is wholly immaterial whether he has read the document or not. In this case no plea of fraud or misrepresentation has been raised and the defendant is bound by his own admission.” (emphasis added)

 

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[23] In the present case, there is no plea of fraud or misrepresentation that has been raised by the Defendant and in paragraph 7(h) and (i) of the Defendant’s affidavit, they have admitted to have sign both the Asset Sale Agreement and the Asset Purchase Agreement dated 16.5.2012. As such, there is no basis to disclaim the agreement after having benefitted from the same. In Tan Sri Abdul Khalid Ibrahim v Bank Islam Malaysia Bhd & Anor case [2010] 4 CLJ 388, the Court held that:

 

“(3) Questioning the validity of an agreement after benefitting from it and upon default, in itself lacked bona fide…”

 

[24] The Plaintiff’s claim for RM88,900,317.93 as at 31.10.2015 is also supported by the Certificate of Indebtedness dated 5.2.2016, Exhibit A- 7. Exhibit A – 7 is issued pursuant to Clause 9.02 of the Asset Sale Agreement, which states:

 

“9.02 Evidence of Indebtedness

 

A statement by a duly authorized officer of the Bank for the time being as to the amount or amounts payable by the Customer under this Agreement, or any other Transaction Document and/or the amount or amounts of any costs, charges, expenses, compensation (ta ‘widh) and other monies payable shall in the absence of manifest error be conclusive evidence that such amount or amounts of any costs, charges, expenses, compensation (ta ‘widh) and other

 

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monies is or are in fact due and payable by the Customer for all purposes including for the purpose of legal proceedings.”

 

[25] Therefore, pursuant to the case of Chempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685, I am of the considered opinion that the Certificate of Indebtedness dated 5.2.2016 is prima facie evidence of the sum owing. The onus then lies with the Defendant to disprove the amount claimed. However, the Defendant did not dispute the amount claimed except to state that facilities are non Islamic or non syariah compliant. In Arab -Malaysian Finance Bhd v Siva Subramaniam Appupillai [1999] 8 CLJ 23, the Court said this:

 

“The appellant had produced a statement of account showing the amount outstanding. In the light of the conclusive evidence clause in the guarantee, it would not be open for the respondent to dispute the amount as stated by the appellant in the final account.”

 

[26] In the present case, the Defendant did not adduce any facts to support its contention. In RHB Bank Bhd v Tan Swee Long

 

Holdings Sdn Bhd & Ors [2008] 10 CLJ 519, the Court held it is not enough for the defendants to merely deny the amount owed, “but the defendants must plead any salient and relevant facts which negative the existence of the debt or which show that the claim is not maintainable on other grounds. ”

 

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[27] In the premise, and based on my reasons enumerated above, I find that the Defendant has failed to raise any triable issue and the Plaintiff’s application is allowed with cost of RM5,000.00.

 

(AZIZAH BTE HAJI NAWAWI) JUDGE HIGH COURT MALAYA (Commercial Division) KUALA LUMPUR

 

Dated: 27th July 2016

 

For the Plaintiff : Asmadi Othman and Nur Athirah Ahmad Messrs Zulpadli Edham Kuala Lumpur.

 

For the Defendant: Kiswaty Abdullah Messrs Kiswaty Abdullah & Partners Kuala Lumpur.

 

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