The call on a Bank Guarantee is valid unless proven unconscionable, reliant on the circumstances surrounding the contractual obligations.

Table of Content
1. the court's analysis of unconscionability. (Para 49)
2. judgment on the validity of the call on the bg. (Para 52 , 56)
3. final rulings and costs ordered. (Para 76 , 79)

"... The learned judge had therefore erred in holding that there was a new substituted contract, and reference was made to Janagi v. Ong Boon Kiat, [1971] 2 MLJ 196, in which Sharma J (as he then was) had made observations on the function of pleadings and the duty of courts to follow rules of procedure and practice. We agreed with the following passage in the judgment of the learned judge in that case in which his Lordship stated:

The Court is not entitled to decide a suit on a matter on which no issue has been raised by the parties. It is not the duty of the Court to make out a case for one of the parties when the party concerned does not raise or which to raise the point. In disposing of a suit or matter involving a disputed question of fact, it is not proper for the Court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleading. The trial of a suit should be confined to the pleas on which the parties are at variance."

Whether The Non-Assessment And Non-Payment Of Invoice No. 1 A/W Was Unconscionable

[38] Invoice No. 1A/W dated 6 February 2015 in the sum of RM3,845,205.00 issued by the Plaintiff to D1 is in respect of what the Plaintiff said is the additional man hours provided by the Plaintiff.

[39] The Plaintiff submitted as follows:

1. Invoice No. 1 A/W is in respect of for additional and/or variation works carried out by the Plaintiff at the Project Site necessitated by factors not due to the default of the Plaintiff.

2. The Plaintiff had, vide e-mail dated 6 February 2015, issued the Invoice No. 1A/W to D1's director, one Mr Visvanathan Mahadevan.

3. At all material times, D1 had failed, refused and/or neglected to assess and/or make payment in respect of Invoice No. 1 A/W dated 6 February 2015 in the sum of RM3,845,205.00.

[40] In this regard, D1 contended that the Plaintiff's entitlement in respect of the sums under Invoice No. 1 A/W had to be premised on the following grounds:

1. As invoice No. 1 A/W is in respect of additional and/or variation of works, D1 relied on cl 4.2 of the Terms and Conditions of the Contract wherein the Plaintiff as the Contractor will only have entitlement towards additional compensation had there been a written agreement between the parties.

2. In the alternative, D1 contended that Invoice No. 1 A/W was in fact assessed pursuant to a letter dated 5 November 2015.

[41] When asked whether D1 owes the Plaintiff the sum of RM3,845,205.00 as represented by Invoice 1 A/W, DW 1 Mr Thajudeen Ajees, the Site Manager of D1 in charged of the Project, stated that there is no basis for this claim. He testified that all invoices must first be received by him. He had not received this invoice and neither have any of his Site Staff. He further informed the Court that Invoice No. 1 A/W was attached to a letter dated 6 February 2015 issued by the Plaintiff and signed by one Mr S Anandan and addressed to the Plaintiff's holding company. It was not addressed to the Plaintiff. A summary and a Letter of Man Hour rate was attached to the said Invoice. The letter also expressed hope that the contents meet with D1's requirements. See pp 11-14 of CBOD 4. DW 1 further pointed out that the Invoice is for modification works but it is a term in the Contract at cl 2.2 that the Plaintiff shall provide 80 Man hours free of charge per modification.

[42] D1's Answer to Question 33 in his Witness Statement is relevant to the issue at hand and is reproduced below:

"Page 12 (of CBOD 4) only states "Total Site Additional Works". There is no breakdown and no supporting documents provided and I have not seen anything of that nature. However, I wish to add that if at all the Plaintiff ought to be paid, then the manner of payment must follow the contract specifically the S

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