The court emphasized that striking out a defense is only appropriate in clear cases without factual disputes requiring trial adjudication.

(Enclosure 15)

Introduction

[1] This is an application by the plaintiff under O 18 r 19(1)(b) and/or (d) of the Rules of 2012 to strike out the statement of defence and the counter-claim dated 24 October 2016 (Encl 15). After hearing and considering arguments of parties, the application was dismissed on 01 August 2017. This is the grounds for the dismissal.

[2] The plaintiff filed the application on 28 February 2017. The series of affidavits for and against the application are as follows:

(a) the plaintiff's affidavit in-support of the application affirmed on 27 February 2017 by Loke Choon Jin;

(b) the defendants' affidavit in-reply affirmed on 21 March 2017 by Teoh Wee Let;

(c) the defendants' affidavit in-reply (No 2) affirmed on 27 March 2017 by Lim Lucy;

(d) the defendants' affidavit in-reply (No 3) affirmed on 27 March 2017 by Teoh Evon;

(e) the plaintiff's affidavit in-reply affirmed on 31 March 2017 by Loke Choon Jin;

(f) the plaintiff's affidavit in-reply (No 2) affirmed on 31 March 2017 by Loke Choon Jin; and

(g) the plaintiff's affidavit in-reply (No 3) affirmed on 31 March 2017 by Loke Choon Jin.

Brief Facts

Plaintiff's Version

[3] According to the plaintiff, the 1st defendant borrowed from the plaintiff a total of RM3,700,000.00 on 3 different occasions. On each occasion, the parties signed a friendly loan agreement. All the friendly loans were approved by a resolution signed by the board of directors of the 1st defendant, namely the 2nd and 4th defendants. The respective 3 friendly loan agreements and the corresponding resolution exhibited in the plaintiff's affidavit in-support are as follows:

(a) friendly loan of RM1,500,000.00

Friendly Loan Agreement dated 04 February 2013 (Exh "LCJ - 1") and the resolution enclosed as Exh "LCJ - 2"; 5

(b) friendly loan of RM1,200,000.00

Friendly Loan Agreement dated 18 March 2013 (Exh "LCJ - 4") and the resolution enclosed as Exh "LCJ - 5"; and

(c) friendly loan of RM1,000,000.00

Friendly Loan Agreement dated 10 September 2013 (Exh "LCJ - 7") and the resolution enclosed as Exh "LCJ - 8".

("Friendly Loan Agreements").

[4] At the request of the 1st defendant, the plaintiff agrees to give the 1st defendant an extension of time for the repayment of the friendly loan. For the purposes of the extension of time, the plaintiff enters into another agreement with the 1st defendant dated 03 July 2015, enclosed as Exh "LCJ - 10" in the plaintiff's affidavit in-support. Vide the agreement for extension of time, the plaintiff grants the 1st defendant an extension of 1 month from 03 July 2015 to repay the whole amount of RM3,700,000.00 on the condition that the 2nd, 3rd, 4th, 5th and 6th defendants execute a joint and several guarantee for the repayment of the RM3,700,000.00 friendly loan as principal debtors. The 2nd, 3rd, 4th, 5th and 6th defendants later enter into a joint and several guarantee dated 03 July 2015. The joint and several guarantee is enclosed as Exh "LCJ - 11" in the plaintiff's affidavit in-support.

[5] The 1st defendant defaults in repayment of the friendly loan and the 2nd, 3rd, 4th, 5th and 6th defendants default in honouring the joint and several guarantee.

Defendants' Version

[6] According to the defendants, The plaintiff is actually in the business of moneylending and the RM3,700,000.00 the 1st defendant borrowed from the plaintiff is part of the moneylending transaction. The 1st defendant had to resort to borrowing money from the plaintiff