The court affirmed that mere allegations without supporting evidence do not constitute genuine triable issues, allowing the plaintiff's summary judgment application for loan recovery.

JUDGMENT

Atan Mustaffa Yussof Ahmad J:

[1] This judgment concerns the Plaintiff's application for summary judgment under O 14 rr 1 and 3 of the Rules of 2012 ("ROC 2012') against the Defendants in respect of a loan facility granted by the Plaintiff to the 1st Defendant and guaranteed by the 2nd to 4th Defendants. The Plaintiff seeks recovery of the outstanding sums due under the loan, totaling RM4,132,762.22 as at 5 November 2023, together with interest and costs. The Defendants resist the application, contending that there are bona fide triable issues that warrant a full trial, namely discrepancies in the loan restructuring amounts, failure by the Plaintiff to update the Defendants' account statements, wrongful imposition of late payment interest by the Plaintiff, and the need for the Plaintiff to first pursue foreclosure proceedings before commencing this suit. The central issues before this Court are whether the Defendants have raised any genuine triable issues requiring a trial, and whether the Plaintiff is entitled to summary judgment in the circumstances.

Background Facts

[2] The Plaintiff, RHB Bank Berhad, granted loan facilities to the 1st Defendant, Ascend I-Corp Sdn Bhd, via a series of Letters of Offer dated 25 August 2014, 18 September 2014, 2 October 2014, 8 October 2014, 12 March 2015, 23 March 2015, 11 November 2016, 7 March 2017, 8 October 2018, 1 October 2019, 31 January 2020, 7 April 2020, 23 September 2020, 9 March 2021 and 7 April 2021 (collectively, "the Letters of Offer"). These were to be read together with Letters of Variation issued by the Plaintiff dated 27 July 2021, 19 May 2022, 21 January 2022 and 10 March 2023 ("the Letters of Variation").

[3] Pursuant to the Letters of Offer and Letters of Variation, the Plaintiff agreed to grant the 1st Defendant a "New Term Loan" facility of RM3,762,003.16 under Account No 71423100077820 ("the Loan Facility'), subject to the terms and conditions in the Letters of Offer, Letters of Variation and a Facility Agreement dated 18 September 2014 ("the Facility Agreement').

[4] As consideration for the Plaintiff granting the Loan Facility to the 1st Defendant, the 2nd to 4th Defendants, Sivanthy A/P Muthaiha, Timothy Navin Posperass and Jeremy Eshwarr Posperass, agreed to guarantee the repayment of the Loan Facility via Personal Guarantees dated 18 September 2014, 1 April 2015 and 9 March 2020 (collectively, "the Personal Guarantees"). The 2nd, 3rd and 4th Defendants undertook to pay the Plaintiff all sums owed by the 1st Defendant under the Loan Facility when demanded. They also agreed to indemnify the Plaintiff against any losses, costs and expenses incurred due to the granting of the Loan Facility to the 1st Defendant.

[5] The Loan Facility was disbursed to the 1st Defendant for its benefit after the security documents were duly executed. However, the 1st Defendant subsequently defaulted in repayment of the Loan Facility and failed to conduct the Loan Facility account satisfactorily.

[6] Due to the continuing default and breach by the Defendants, the Plaintiff via its solicitors Messrs Che Mokhtar & Ling issued Letters of Demand dated 17 October 2023 to the Defendants. The Plaintiff terminated the Loan Facility and demanded repayment of the outstanding sums under the Loan Facility account amounting to RM4,108,482.7 as at 15 October 2023, together with further interest until full settlement.

[7] As at the filing of this suit on 5 November 2023, the total outstanding under the Loan Facility was RM4,132,762.22 as per the Plaintiff's records. This comprised principal of RM3,765,267.17, accrued interest of RM365,632.59 and late payment charges of RM1,862.46. The Plaintiff filed an application for summary judgment on 14 December 2023 pursuant to O 14 ROC 2012.

[8] The Plaintiff claims this sum from the Defendants jointly and severally, together with further interest at 3.5% per annum above the Plaintiff's Base Lending Rate on the outstanding sum from 6 November 2023 until full sett