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2025 MarsdenLR 1056
HIGH COURT MALAYA KUALA LUMPUR
BANK KERJASAMA RAKYAT MALAYSIA BERHAD – Appellant
Versus
MDSA DEVELOPMENT SDN BHD & ORS – Respondent
[Suit No: WA-22M-1748-11/2023]
The court affirmed that summary judgment is appropriate when the plaintiff establishes procedural compliance and the defendants fail to raise genuine triable issues, emphasizing the burden of proof on the defendants.
Headnote:(A) Rules of Court 2012 - Order 14 - Summary judgment application - Plaintiff alleged non-repayment by first defendant and sought judgment without trial, while defendants claimed genuine disputes existed - Court determined that plaintiff met procedural requirements and defendants failed to show triable issues - Legal entitlement to judgment established under stringent standards of Order 14. (Paras 1, 9, 10, 14, 77)
(B) Procedural Requirements - The court held that the plaintiff must prove that the defendant entered appearance, statement of claim served, and affidavit complied with requirements - Burden then shifts to the defendant to show why judgment should not be granted. (Paras 10, 11)
(C) Genuine Disputes - The court clarified that blanket denials by defendants insufficient to raise triable issues; only credible defenses warrant trial. (Paras 15, 17)
(D) Shariah Compliance - The court found the restructuring of the banking facility was valid and did not violate Shariah principles; defendants failed to substantiate claims of ambiguity or oppression. (Paras 21, 31, 36) (E) Certificate of Indebtedness - The court ruled that the certificate issued by the bank constituted conclusive evidence of the debt, and no manifest errors were found in the calculations. (Paras 59, 64, 76) (F)
Result: Summary judgment granted against defendants for RM82,516,398.43 with costs of RM8,000.00.
Introduction
[1] This matter arises from the plaintiffs application in encl 30 made pursuant to O 14 r 1 of the Rules of Court 2012 ("the Rules"). The plaintiff alleges that the first defendant ("D1") has failed to fulfill its repayment obligations under a banking facility, while the second and third defendants ("D2" and "D3") are sued in their capacity as guarantors of D1's contractual performance. The plaintiff contends that this is a clear-cut case warranting immediate adjudication without trial, asserting an absence of genuine disputes necessitating further scrutiny. In opposition, the defendants vigorously contest the application, maintaining that substantive factual and legal complexities exist, which merit full exploration through trial proceedings. At the heart of this Court's inquiry lies a critical determination: whether the defendants have sufficiently demonstrated the presence of a bona fide triable issue that would preclude summary adjudication or, conversely, whether the plaintiff has established an unequivocal legal entitlement to judgment under the stringent standards of O 14.
Background Facts
[2] D1, a client of the plaintiff bank, sought to refinance an existing loan from MBSB Bank Berhad to fund the development of its construction project, Imperio Residence @ Hatten City, located in Malacca. Based on an offer letter dated 10 October 2019, the plaintiff granted D1 with an Islamic Term Financing Facility based on Tawarruq (Commodity Murabahah) for the sum of RM60,000,000.00 ("the said Banking Facility"). At DTs request, and pursuant to a Supplementary Letter of Offer (Restructuring) dated 5 October 2020, 2nd Supplementary Letter of Offer dated 22 June 2021, 3rd Supplementary Letter of Offer dated 29 October 2021, and 4th Supplementary Letter of Offer dated 8 September 2022, the said Banking Facility was restructured to RM58,800,000.00. (See pp 2 to 53 of Exhibit NBN-1 of encl 31).
[3] The commitment of the parties to the facilities was further evidenced by the concomitant execution and/or issuance of the following documents:
(a) Facility Agreement executed by D1 on 11 November 2019;
(b) Supplemental Facility Agreement executed by D1 on 8 September 2020;
(c) Purchase Request and Undertaking to Purchase executed by D1 dated 11 November 2019;
(d) Purchase Request and Undertaking to Purchase (Restructuring) executed by D1 dated 25 November 2020;
(e) Wakalah Agreement executed by D1 on 11 November 2019;
(f) Wakalah Agreement (Restructuring) executed by D1 on 25 November 2020;
(g) Murabahah Sale Contract executed by D1 on 11 November 2019 evidencing the Murabahah Sale Price of RM85,8847,239.80;
(h) Murabahah Sale Contract (Restructuring) executed by D1 on 25 November 2020 evidencing the Restructured Murabahah Sale Price of RM91,338,846.27;
(i) Joint and Several Guarantees executed by the D2 and D3 on 11 November 2019, 19 November 2020 and 25 November 2020 ("the said Guarantees");
(j) Notification Letter dated 5 October 2020; and
(k) 2nd Notification Letter dated 8 September 2022;
[4] The plaintiff has accordingly disbursed the said Banking Facility to D1, and D1 has utilized the same. However, D1 subsequently failed, neglected, and/or refused to make the overdue monthly payments. Consequently, the plaintiff, through Messrs Sidek Teoh Wong & Dennis, issued a demand dated 5 May 2023 claiming the arrears of RM917,607.73 as at 5 May 2023. (See Exhibit NBN-6 of encl 33).
[5] As D1 failed to adhere to the demand, the plaintiff has through Messrs Sidek Teoh Wong & Dennis, issued a notice of termination dated 7 November 2023 and claimed for the outstanding amount of RM82,516,398.43 as at 6 November 2023. (See Exhibit NBN-7 of encl 33). A statement of account was issued by the plaintiff pursuant to the relevant clauses under the Facility Agreements as well as the Guarantees (See Exhibit NBN-8 of encl 34); evidencing the same outstanding sum.
[6] On 24 November 2023, the plaintiff commenced proceedings against th
