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2023 MarsdenLR 200
HIGH COURT MALAYA PULAU PINANG
SELVARAJA NAMACHIVAYAM – Appellant
Versus
N JEGANATHAN ARA NACHIAPPAN – Respondent
[Civil Appeal No: PA-12A-34-07/2022]
A defendant must demonstrate a bona fide triable issue to successfully oppose a summary judgment application; mere assertions do not suffice.
Headnote:(A) Rules of Court 2012 - Order 14 - Summary judgment - Plaintiff filed suit for repayment of a friendly loan of RM700K; Defendant denied debt and claimed investment instead - Sessions Court granted summary judgment, upheld on appeal - Defendant's statutory declaration affirmed loan receipt, contradicting defense - Court found no triable issues, dismissing appeal and ordering costs. (Paras 1-62)
(B) Summary Judgment - A defendant must demonstrate a bona fide triable issue for summary judgment to be denied; mere assertions are insufficient. (Paras 27-28)
(C) Evidence Act 1950 - Sections 91 and 92 - Written agreements are binding, and oral evidence cannot contradict their terms unless exceptions apply; Defendant's claims of duress and non-stamping were unsubstantiated. (Paras 34-39)
(D) Contractual Obligations - A party is bound by the terms of a signed contract, barring proof of fraud or misrepresentation. (Paras 52-53) (E) Costs - Defendant ordered to pay RM5K in costs to Plaintiff. (Paras 62)
| Table of Content |
|---|
| 1. summary judgment application process. (Para 1 , 2 , 3 , 4) |
| 2. factual background of the loan agreement. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 3. defendant's version and defenses. (Para 13 , 14 , 15 , 16 , 17 , 18) |
| 4. re-hearing principle for appeals. (Para 19 , 20 , 21 , 22 , 23) |
| 5. criteria for granting summary judgment. (Para 24 , 25 , 26 , 27 , 28 , 29) |
| 6. evidence act application to statutory declarations. (Para 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40) |
| 7. validity of the friendly loan agreement. (Para 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48) |
| 8. non-stamping of documents and its implications. (Para 49 , 50 , 51) |
| 9. obligations of parties under signed contracts. (Para 52 , 53 , 54 , 55 , 56 , 58 , 59 , 60) |
| 10. conclusion and judgment order. (Para 61 , 62) |
Prelusion
[1] The Plaintiff (P) filed suit against the Defendant (D) for the repayment of an interest-free friendly loan.
[2] P filed an application under O 14 of the Rules Of Court 2012 ( ROC ) to record judgment summarily against D.
[3] The Sessions Court granted the summary judgment.
[4] D appeals against the Sessions Court's decision.
The Pertinent Pleaded Facts
[5] I would like to first set out the pertinent facts pleaded according to the parties respectively.
P's Version
[6] In May 2015 - P lent D RM100K in cash, as a friendly loan.
[7] In June 2016 (on 1 June 2015) - D gave a RM100K cheque to P as repayment of the loan. But D asked P not to encash the cheque, so P did not present the cheque for payment
[8] In April 2016 (on 2 April 2016) - P and D entered into a Friendly Loan Agreement (FLA) for RM500K. P gave the RM500K to D in cash.
[9] Also in April 2016 (on 2 April 2016 and 3 April 2016) - P lent D another RM100K, this time by giving D 3 cheques for RM30K, RM20K and RM50K.
[10] About two years later, in August 2018 (on 6 August 2018) - D affirmed a statutory declaration (SD) stating that he received a cumulative sum of RM700K as a friendly loan from P.
[11] About two years after that, in December 2020 (on 18 December 2020) - P, through his solicitors, issued a letter to D to demand for the repayment of the RM700K loan.
[12] Later in December 2020 (on 28 December 2020) - D, through his solicitors, replied to P's letter of demand, denying the debt and alleging that the money was paid by P to D as an investment.
D's version
[13] D's RM100K cheque that was given to P in June 2016 was part of D's investment in P's project.
[14] P asked D to invest in P's project, and "forced" (dipaksa) D to sign the FLA as a guarantee of D's investment.
[15] D never received any money from P "personally" (secara peribadi) as a friendly loan.
[16] D pleads that the FLA is void as it offends the Stamp Act 1949 .
[17] D challenges (mencabar) P to prove that the money went into D's bank account.
[18] P sued D because their investment went bad and P wants to get his (P's) money back.
This Appeal Is A Re-Hearing
[19] All Appeals from the Sessions Court are heard and determined by the process of re-hearing. In other words, when I hear and determine this Appeal, it is as if I am re-hearing P's Order 14 application.
[20] Order 55 r 2 provides for this principle. reads:
Order 55. Appeals to High Court from Subordinate Courts
2. Appeal to be by re-hearing on notice (O 55 r 2)
All appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from.
[21] In United Malayan Banking Corporation Bhd v. Pembinaan KSY Sdn Bhd & Ors ; ; , the Supreme Court propounded this principle like so (at MLJ page 49):
The approach to be taken by an appellate Court in an O 14 appeal has been settled. The appellate Court should not regard the appeal as reviewing the exercise of the judge's discretion but should approach the appeal as a rehearing.
[Emphasis Mine]
The Law On Order 14 - To Enter Summary Judgment
[22] The pertinent portions of O 14 are set out here:
1. Application by plaintiff for summary jud
