The obligation of a guarantor arises only upon demand, not upon the breach of contract, and failure to comply with filing timelines results in dismissal of appeals.

JUDGMENT

Mohd Arief Emran Arifin J:

A. Introduction

[1] There are 3 applications that was heard by this Court on 5 November 2024. They are:-

(1) Enclosure 3 - The Appellant's application for an extension of time to file the Record of Appeal.

(2) Enclosure 9 - The Respondent's application to strike out the notice of appeal.

(3) Enclosure 14 - The Appellant's application for stay of proceedings in Sessions Court pending the outcome of this appeal.

B. Merits Of The Applications And Merits Of The Appeal

Striking Out Of Notice Of Appeal And Merits Of The Appeal

[2] The Appellant had filed a notice of appeal against the decision of the Sessions Court Judge allowing summary judgment against him on 12 June 2024.

[3] The Appellant's notice of appeal was filed on 21 June 2024. It is trite law that the Record of Appeal concerning an appeal from the Sessions Court to the High Court must be filed within one month from the date of filing of the notice of appeal. This is provided under O 55 of the Rules of 2012.

[4] In this case, the Appellant did not comply with the said requirement. He was repeatedly informed by the Court during case management on 31 July 2024. He had failed to comply with the said requirement and only filed an application for an extension of time on 5 August 2024 and had filed the record of appeal out of time on 16 August 2024.

[5] The reason given by the Appellant is that he was allegedly not aware of the requirements to file the record of appeal within time, was not aware of the directions given by the Registrar of Court to attend case management on 9 July 2024 and 25 July 2024 and delay in obtaining the Grounds of Judgment from Sessions Court 's Judge.

[6] The Appellant had also filed an extensive submission as to the merits of the appeal against the decision of the Sessions Court . As the Appellant is a lay person, I have allowed him to ventilate his reasons why the decision of the Sessions Court Judge should be set aside as he has prepared extensive arguments on the appeal. This is an important consideration as the application for an extension of time should only be entertained if the appeal is with merits.

[7] After considering the merits of the appeal, I find that the Appellant has not shown any valid reason why this Court should interfere with the findings made by the learned Sessions Court Judge and any valid reason for the said application for extension of time should be allowed by this Court .

Brief Facts And Merits Of The Appeal

[8] The Appellant is a guarantor to a Scholarship agreement granted by the Respondent to one Mohd Azli Hisham b Abdul Aziz. Under the terms of the Scholarship Agreement, the Appellant agrees to pay the Respondent on receipt of a demand if the said student fails to comply with the terms of the Scholarship Agreement.

[9] It is not in dispute that the student did breached the terms of the agreement when he failed to return to Malaysia and to work for the Respondent with the Ministry of Health as directed. A letter requiring the student to report for duty was issued on 19 May 2003 and 13 May 2004 but the said student failed to comply with the same.

[10] Due to the said failure, the Respondent then issued a demand for payment of the sum of RM160,000.00 against the student and all other guarantors by letter dated 31 December 2018. The right to sue the guarantors including the Appellant arose on 31 December 2018 and not on 19 May 2003 or 135-2004 as the demand for payment was only made on 31 December 2018. This was followed by another letter dated 16 August 2023.

[11] The writ was filed on 11 October 2023 well within the limitation period as the last date would have been 30 December 2024 ie 6 years after 31 December 2018.

[12] The Appellant contends that the limitation period starts from the date of breach of the terms of the Scholarship Agreement by the student. This he suggests starts from 13 March 2004 and as such the claim against him will be time barred on 12 March 2010.

C. Alleged Def