Utama Merchant Bank Bhd Vs1. Doublestep Sdn Bhd2. Mohd Nadzri Bin A. Halim3. Salmah Bee Bt Kassim

  

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DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

 

(BAHAGIAN DAGANG)

 

DALAM KEBANKRAPAN NO. D-29-918-2001

 

ANTARA

 

UTAMA MERCHANT BANK BHD – PLAINTIF

 

(NO. SYARIKAT: 23878-X)

 

DAN

 

1. DOUBLESTEP SDN BHD (NO. SYARIKAT: 392029-W)

 

2. MOHD NADZRI BIN A. HALIM (NO. K/P: 550625-02-5387)

 

3. SALMAH BEE BINTI KASSIM – DEFENDAN-DEFENDAN

 

(NO. K/P: 581003-07-5306)

 

GROUNDS OF JUDGMENT

 

Enclosure 1A is the plaintiff’s application for leave to enforce the judgment dated 30th July 2003 obtained against the defendants, pursuant to Order 46 rule 2 (1)(a) of the Rules of Court 2012.

 

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[2] The defendants raise two main issues in opposing this application namely that the plaintiff gives no cogent reason for the delay in enforcing the judgment and that the plaintiff fails to state the amount on the date of the judgment and the amount on the date of this application; contrary to Order 46 rule 3 (2)(a) and (b) of the Rules of Court 2012.

 

[3] The defendants rely heavily on the Court of Appeal’s decision in Affin Bank Bhd v Wan Abdul Rahman Wan Ibrahim [2003] 1 MLRA 41, particularly the following passage:

 

“ It is trite that the grant of leave under O 46 r (2) is in the court’s discretion. Order 46 r 3 states that an application under O 46 r 2(1) must be supported by an affidavit stating, when the case falls within r 2(1)(a), the reasons for the delay in enforcing the judgment or order. Therefore, it is incumbent upon the applicant to furnish the court with sufficient reason in support of such an application. What is sufficient reason? This naturally will vary from case to case. It is not possible for this court to provide an exhaustive list of what is considered to be sufficient reason. By way of illustration, in Tio Chee Hing v Chung Khiaw Bank Ltd [1981] 1 MLJ 227 the reasons given for the delay was that there were negotiations for settlement by arrangement. The High Court there accepted that as being sufficient reason and the

 

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Federal Court agreed with the trial judge. In Public Bank Bhd v Seato Trading (M) Sdn Bhd & Ors [1996] 1 MLJ165, Zakaria Yatim J (as he then was) stated that:

 

‘it was proper for the plaintiff not to issue execution when the third defendant was making payments’.

 

However, the fact that the application was made within the 12-year period as prescribed by s 6(3) of the Limitation Act 1953 for the bringing of an action upon a judgment is not a sufficient ground for granting of leave as the right to sue on a judgment is distinct from the right to issue execution.

 

In the present case, learned counsel for the appellant submitted that no injustice or prejudice would be caused to the respondent if leave is granted to the appellant.

 

The learned judge had in his judgment considered this contention by the appellant. At p 4 of his judgment he stated:

 

“ The calculation of the interest as worked out by the plaintiff in the affidavit was as at 12 July 1992 making a total sum due amounting to RM74,134.09. I then asked Ms Karen Wilfred

 

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for the plaintiff whether plaintiff had given any explanation as to why it had not proceeded to enforce, as of 1992. Since no explanation was stated in the affidavit no doubt counsel could not give any explanation from the Bar. ”

 

We agree with the learned judge that in an application under O 46 r 2 it is incumbent for the applicant to furnish sufficient reason to explain for their inaction. From the supporting affidavit the only reason put forth by the appellant in support of this application is the neglect of its former solicitors to initiate the necessary action. But again the appellant is also not free from blame. From the affidavit in support it would appear that the appellant took more than two years to appoint the new solicitors after appellant failed to hear from its former solicitors. Having considered the matter, we fully agree with the learned judge that the appellant failed to furnish sufficient reason to persuade the court to exercise the discretion in its favor. ”

 

[4] With due respect to the defendants, I am of the view that Affin Bank’s case [ Supra] can be distinguished from this instant case as in this instance the delay herein was not caused by the neglect of the plaintiff’s counsel; but due to negotiation for settlement which took place between 30th July 2003 and 18th

 

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February 2008 leading up to the Settlement Agreement as shown in exhibit ‘A-3’ of enclosure 1B. This is similar to the case of Tio Chee Hing [Supra] quoted by Affin Bank’s case [Supra] that “ the reason given for the delay was that there was negotiation for settlement by arrangement. The High Court there accepted that as being sufficient reasons and the Federal Court agreed with the trial judge”.

 

[5] As in To Chee Hing [Supra], the defendants in this instant case had also been making payments. As submitted by the plaintiff, as was stated in the plaintiff’s affidavits, enclosure 1B, and the Notice of Application, enclosure 1A, the defendants had in adherence with the terms of the Settlement Agreement, paid a total of RM9,189,600.24 [RM8,205,000.24 + RM820,500 + RM164,100]. This represents 91.9% of the amount agreed under the Settlement Agreement, and is plainly a considerable sum paid forth. There were thus very cogent grounds for the plaintiff to hope that the remaining amounts would be settled by the defendants despite the defendants having breached the terms of the Settlement Agreement.

 

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[6] It is my view that the defendants have benefited from the delay and cannot now claim that such delay would prejudice them especially now that the plaintiff is claiming for a lesser amount. Paragraph 5 of the Settlement Agreement clearly provides that the plaintiff reserves all its rights to pursue legal proceedings in the event the defendants breach the Settlement Agreement. This to my mind, includes the right to enforce the Judgment.

 

[7] On the amount owed, paragraphs 5 and 9 of enclosure 1B clearly states as follows:

 

“ 5. I further state that, on 30th July 2003, this Honourable Court had entered judgment against the defendants for the sum of RM15,268,639.99. A copy of the Judgment dated 30th July 2003 is now shown to me marked and annexed here to as Exhibit ‘A-2’.

 

9. However, the defendants as to date, have failed to pay the remaining sum of RM810,399.76 in breach of the settlement agreement.”

 

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[8] As such, there shall not be any issue that the plaintiff has failed to state the amount due under the Judgment and the amount due at the time of this application i.e the amount owing under the Settlement Agreement.

 

Conclusion

 

[9] I have perused this application in enclosure 1A and the relevant cause papers and have also considered submissions made by the parties written as well as oral. Based on the reasons above, I see no reason to disallow this application.

 

[10] Hence I allow enclosure 1A with cost.

 

DATO’ ZALEHA BINTI YUSOF JUDGE

 

HIGH COURT OF MALAYA KUALA LUMPUR

 

Dated: 24th Mac 2015

 

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For the Plaintif: Rohan Arasoo Jeyabalam with Shim De Juen ; Messrs Kadir, Andri & Partners

 

For the Defendants: Jasvinjit Singh a/l Gurcharan Sing; Messrs Jasvinjit Sing & Co

 

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