IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION)
SUIT NO. D22-NCC-780-2009
RHB BANK BERHAD
KAMACHEE AMMAL @
MANGAYAMMAL … DEFENDANT
GROUNDS OF DECISION (Enc. 7)
BEFORE HIS LORDSHIP TUAN ANANTHAM KASINATHER JUDGE HIGH COURT MALAYA
KUALA LUMPUR IN CHAMBER
Enc. 7 is an application by the Defendant to set aside the judgment in default obtained by the Plaintiff by way of Enc. 5. Relying on paragraph 3 (a) of his client’s affidavit (Enc. 8), Counsel for the applicant / Defendant submitted that the judgment in default was irregularly obtained. According to Counsel, the irregularity is in the service of the writ. The writ, according to Counsel ,was never served on the Defendant.
With respect, O10r1(a) of the RHC permits service of a writ ‘by sending it by prepaid AR registered post addressed to his last known address’. In other words, the second limb to O10r1(a) no longer renders personal service to be the only
mode of proper service of a writ of summons. Accordingly, the only issue is whether the service of the writ by the Plaintiff leading to the entry of the judgment in default was effected in accordance with O10r1(a). According to paragraph 2 of the affidavit of service of the process server in the employee of the Plaintiff (Exh. LKV 1 to Enc. 10), the writ was forwarded by prepaid AR registered post to three different addresses being the last known addresses of the Defendant. One of the addresses was PT 3307 Jalan AM 1, Arab Malaysian Industrial Park 71800 Nilai, Negeri Sembilan. Incidentally, this was the address furnished by the Defendant in the letter of guarantee executed by her. According to clause 24 of the letter of guarantee (Exh. LKV 3 to Enc .10), ‘any demand for payment or service of any legal process’ effected to the aforesaid address by prepaid registered or ordinary post ‘shall be deem to have been duly serviced on the 5th day following that on which it is posted’. This to be the case irrespective of whether the legal document reached the Defendant or otherwise. In the circumstances, there is no doubt that the Defendant was properly served the writ pursuant to O10r1(a) particularly since the writ was served in accordance with the terms of the Defendant’s contract of guarantee with the Plaintiff. In any event, the Defendant’s husband when communicating with the Plaintiff in seeking the release of his wife as a guarantor used the address of No.1, Jalan 203, Off Jalan Tandang, Petaling Jaya, Selangor Darul Ehsan and this was another address to which the writ was forwarded in accordance with O10r1(a).
Upon being satisfied that the writ had been properly served, I invited counsel for the Defendant to satisfy me that his client’s application had merits but was informed by him that his submission was as regards service only. In the circumstances, I dismissed Enc. 7 and ordered the Defendant to pay costs of RM 2,500 to the Plaintiff.
(Y.A. Tuan Anantham Kasinather)
Pesuruhjaya Kehakiman Mahkamah Tinggi Kuala Lumpur
Date of Decision: 3rd June 2010
Ms. S.M. Chan
(Tetuan Anad & Noraini) … for the Plaintiff
(Tetuan S.S. Ruban & Assoc) … for the Defendant