Dato` Cheng Hup � Plaintif Dan Mem Industries Sdn Bhd � Defendan

  

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Alasan Penghakiman No: D6-22-97-2007

 

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG)

 

GUAMAN NO: D6-22-97-2007

 

ANTARA

 

DATO’ CHENG HUP

 

PLAINTIF

 

DAN

 

MEM INDUSTRIES SDN BHD

 

DEFENDAN

 

ALASAN PENGHAKIMAN OLEH YANG ARIF HAKIM DATO’ TENGKU MAIMUN BINTI TUAN MAT

 

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Alasan Penghakiman No: D6-22-97-2007

 

The plaintiff’s claim against the defendant is for repayment of a friendly loan of RM270,000.00. The defendant denied owing the said sum to the plaintiff. It was the pleaded case of the defendant that the plaintiff and the defendant had entered into an agreement whereby the plaintiff had agreed to deposit money for the purposes of purchasing shares in the defendant company. It was further the case for the defendant that the plaintiff had terminated the agreement, thus the deposit of RM270,000.00 may be forfeited by the defendant.

 

When the case came up for full trial on 4.11.2009, the plaintiff and his learned counsel was present in Court at 9am but the defendant and learned counsel for the defendant were not present. The trial was stood down until 10.15am but the defendant and its solicitors were still not in Court.

 

The trial then proceeded with the plaintiff himself giving evidence. His testimony shows that between June 2003 to September 2003 he had given the defendant a loan totaling RM270,000.00 which the defendant had acknowledged receipt. The evidence further shows that the amount given to the defendant was also acknowledged by the defendant’s external auditors. It was the evidence of the plaintiff that in August 2003 he was asked by Mr. Sia, a director in the defendant company, whether he was keen to buy some shares in the defendant company. The plaintiff said he proposed to buy 70% of the shares but his proposal was rejected by the defendant. The defendant’s letter evidencing the rejection is found in exhibit P4.

 

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Alasan Penghakiman No: D6-22-97-2007

 

DECISION

 

The oral testimony of the plaintiff is supported by the documentary evidence. Letters from the defendant acknowledging receipts of RM270,000.00 are found in exhibits P1, P2, P3, P5, and P6. Whilst exhibit P1 clearly states that the money received from the plaintiff was a loan to the defendant company, there is no evidence to show that the defendant received the money as a deposit for the purchase of shares in the defendant’s company. Hence there is no basis for the defendant to contend that the defendant is entitled to forfeit the amount when the purchase did not materialize. In this regard it is also important to note that the plaintiff first gave the money to the defendant in June 2003 whereas the issue of purchasing the defendant’s shares only arose in August 2003. Clearly this goes against the defendant’s contention that the payment by the plaintiff was a deposit for the purchase of shares.

 

The defendant’s auditors Messrs S.F. Keow & Co had written to the plaintiff on 25.5.2005 (exhibit P8) seeking confirmation as to the correctness of the balance due from the defendant in the amount of RM270,000.00 which the plaintiff duly confirmed on 6.6.2005. Vide a letter dated 29.11.2006 (exhibit P9) Messrs S.F. Keow confirmed that “the liability owing to Datuk Cheng Hup is properly drawn up in the accounts of the Company for the financial year ended 31-December 2003 and 31-December 2004.”

 

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Alasan Penghakiman No: D6-22-97-2007

 

Given the above, I find that the plaintiff has, on a balance of probability, proven its claim against the defendant. Judgment is therefore entered against the defendant for RM270,000.00 with interest of 8% per annum from the date of judgment till realization and costs.

 

(DATO’ TENGKU MAIMUN BINTI TUAN MAT)

 

HAKIM

 

MAHKAMAH TINGGI MALAYA BAHAGIAN DAGANG KUALA LUMPUR.

 

Dated 4th November 2009.

 

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Alasan Penghakiman No: D6-22-97-2007

 

Encik Kam Shee Meng bagi pihak Plaintiff

 

Tetuan S.M. Kam & Associates

 

Peguambela dan Peguamcara

 

No. 15 -2, Jalan Mega Mendung

 

Kompleks Bandar

 

Batu 5, Jalan Klang Lama

 

58200 Kuala Lumpur.

 

Tetuan Zainudin Wan Nadzim Chua & Mazlinda Peguambela dan Peguamcara bagi pihak Defendan No. 43-3 (Tingkat 1)

 

Jalan Khalidi Peti Surat 145 84000 Muar.

 

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