Malayan Banking Berhad V Chan Teik Huat & 2 Lagi

  

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Keputusan Kand. 33 & 48 No: D-22-1479-2006

 

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

 

(BAHAGIAN DAGANG)

 

GUAMAN NO: D-22-1479-2006

 

ANTARA

 

MALAYAN BANKING BERHAD … PLAINTIF

 

DAN

 

CHAN TEIK HUAT & 2 LAGI … DEFENDAN-DEFENDAN

 

KEPUTUSAN KANDUNGAN 33 DAN 48 OLEH YANG ARIF HAKIM DATO’ TENGKU MAIMUN BINTI TUAN MAT

 

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Keputusan Kand. 33 & 48 No: D-22-1479-2006

 

The plaintiff’s claim against the defendant is for amounts owing under a loan facility granted by the plaintiff to the 1st defendant. The loan facility was secured by a pledge of Metroplex Bhd and/or Apex Equity Holding Bhd shares and deed of assignment over properties belonging to the 2nd and 3rd defendants. Vide the statement of claim the plaintiff pleaded the relevant clauses in the loan agreement, viz that interest payable was at 2.5% per annum above the plaintiff’s base lending rate and penalty interest at 1% above the prescribed rate. Vide the statement of claim the plaintiff prayed for RM8,239,569.46 with interest at the rate of 9.25% (2.5% above the BLR which was 6.75%) from 1.9.2006 and costs. The plaintiff did not seek for payment of the penalty interest in the statement of claim.

 

The plaintiff then filed for an O.14 application wherein the claim also includes the penalty interest. The issues raised by the defendant in resisting the summary judgment application is that there are conflicting unit prices in the shares of the Metroplex Bhd and Apex Equity Holdings Bhd and that the plaintiff has failed to particularized the debts due and owing in the statement of claim. The learned Senior Assistant Registrar allowed the plaintiff’s application for summary judgment.

 

After the summary judgment was entered against the defendants, the plaintiff filed an application to amend the statement of claim to correct the particulars of the pledged shares and to incorporate the claim for the penalty interest of 1%. The application was allowed by the learned Senior Assistant Registrar.

 

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Keputusan Kand. 33 & 48 No: D-22-1479-2006

 

Before me now are enclosures 33 and 48, the defendants’ appeal against the summary judgment and the amendment of the statement of claim, respectively.

 

In respect of encl 33, I am of the view that the plaintiff’s claim is a plain and obvious one for sums due and owing under the loan facility. The issue raised by the defendant was basically in respect of the conflicting unit prices of the shares pledged. Vide paragraph 13 of the statement of claim the plaintiff pleads that “… plaintif telah menjual 3,000 unit saham Metroplex Bhd untuk RM0.670 seunit dan 20,000 unit saham Apex Equity Holdings Bhd untuk RM0.085 seunit dan Plaintif telah memaklumkan yang sama kepada Defendan pertama melalui suratnya yang bertarikh 25.2.2003.”

 

Vide paragraph 15 of the affidavit in support of the O. 14 application (encl 8) the plaintiff averred that “Pada 24.2.2003 Plaintif telah menjual 3,000 unit saham apex Equity Holdings Bhd untuk RM0.670 seunit dan 20,000 unit saham Metroplex Bhd untuk RM0.085 seunit dan Plaintif telah memaklumkan yang sama kepada Defendan pertama melalui suratnya yang bertarikh 25.2.2003..” The exhibit enclosed (MBB-11 encl 8) shows that the Apex Equity shares were sold at a price of RM0.670 per unit and Metroplex shares at RM0.085 per unit.

 

There has therefore been a mistake in the particularization of the shares in paragraph 13 of the statement of claim and this has been regularized by the plaintiff vide the amendment. In the event, the issue raised by the defendants could not be considered a triable issue. Encl 33 is dismissed with costs.

 

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Keputusan Kand. 33 & 48 No: D-22-1479-2006

 

As for encl 48, the defendants contended that as the application for amendment was made after the plaintiff has obtained the summary judgment, they are deprived and being prejudiced as to their right to a chance to defend on the proper and accurate statement of claim before the amendment and that the plaintiff had not explained the delay in applying for the amendment.

 

I do not see the prejudice caused to the defendant. The defendant was well aware of the shares sold and the price of the shares. The correct number of unit of shares was produced at the hearing of the O. 14 application. The amendment sought was merely to reflect the correct shares with reference to the unit price. In short, it was to rectify a mistake. Insofar as the amendment concerns the penalty interest, it (the penalty interest) was agreed upon under the loan agreement. The amendment was bona fide. It certainly does not change the character of this action. Encl 48 is dismissed with costs.

 

(DATO’ TENGKU MAIMUN BINTI TUAN MAT)

 

HAKIM

 

MAHKAMAH TINGGI MALAYA BAHAGIAN DAGANG KUALA LUMPUR

 

Dated 14th July 2010

 

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Keputusan Kand. 33 & 48 No: D-22-1479-2006

 

Cik Anit Kaur Randhawa bagi pihak Plaintif

 

Tetuan Asbir, Hira Singh & Co.

 

Peguambela dan Peguamcara

 

Unit 25-15, Blok A

 

Menara UOA Bangsar

 

No. 5, Jalan Bangsar Utama 1

 

59000 Kuala Lumpur.

 

Encik Ong Siang Liang bagi pihak Defendan

 

Tetuan Ong, Ma & Partners

 

Peguambela dan Peguamcara

 

No. 63-3, 3rd Floor

 

Jalan Metro Perdana Barat 1

 

Taman Usahawan Kepong

 

Kepong Utara

 

52100 Kuala Lumpur.

 

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