A borrower must be aware of and bound by the terms of the documents they sign, regardless of language comprehension, unless fraud or misrepresentation is proved.

Wong Hok Chong JC:

Appeal From Sessions' Court

[1] This is the Appellant Borrower's appeal against the Learned Sessions Court Judge's decision to allow the Respondent Bank to enter summary judgment against her. I heard the appeal and dismissed it on 2 March 2020. These are the grounds for my decision.

Background

[2] The background facts are as follows. The Appellant purchased the Property from Murali, who happened to be her husband, for the price of RM230,000.00 vide a Sale and Purchase Agreement dated 3 April 2017 ("SPA"). To finance the acquisition, the Appellant obtained a loan of RM203,078.00 from the Respondent Bank ("Loan") vide a Musharakah Mutanaqisah Master Agreement dated 18 May 2017 ("Loan Agreement") for the purchase of the Property. The transaction was completed. The loan sum was released as prescribed in the Loan Agreement and the SPA and the Property was transferred to the Appellant.

[3] The Respondent subsequently recalled the facility after the Appellant defaulted on the installment. The Respondent commenced the legal proceedings to recover the loan and obtained summary judgment against the Appellant, which is the subject of this appeal.

Counter-Claim - Unrelated

[4] As far as the Respondent is concerned, it was a straightforward housing loan. However, the Appellant alleges that the housing loan is but a part of a bigger scheme that affords her a meritorious defence. The Appellant (Defendant in the original suit) mounted the Counter-Claim against the Respondent (Plaintiff in the original suit) to declare inter alia the Loan Agreement void.

[5] In addition, the Appellant joined Murali as the 2nd Plaintiff in the Counter-Claim and brought in 3 new parties as Defendants in the counter-claim. They are Solomon a/l David the 2nd Defendant ("Solomon"), Tetuan Mei Chan Eiza & Co as the 3rd Defendant ("Solicitors") and Goh Ah Thiam as the 4th Defendant ("Goh"), all in Counter-Claim.

[6] This is the Appellant's narrative. In 2015, the Appellant and Murali were equal joint owners of the Property. In need of money, they borrowed a sum of RM70,000 from Goh arranged by Solomon. As security, they signed a sale and purchase agreement purporting to sell the Property to Goh in escrow, but it was never followed through.

[7] Subsequently in 2018, they came up with a scheme to pay Goh off. First, the Appellant transferred her 14 share in the Property to Murali. Second, they signed the SPA for Murali to sell the Property to the Appellant. Third, the Appellant obtained the Loan from the Respondent Bank to finance the purchase of the Property, which is the subject of this instant appeal. Fourth, the Solicitor released the balance purchase price or a substantial portion of it to Goh, instead of Murali.

Respondent's View

[8] As far as the Respondent is concerned, the said narrative is an entirely separate matter. So far as the Loan Agreement is concerned, the Respondent had released the loan sum according the Loan Agreement and ownership of the Property had been transferred to the Appellant. There was nothing untoward in the Loan transaction.

Appellant's Complaint

[9] The Appellant's complaint about the Loan Agreement is as follows:

(1) The Appellant alleges that she only wanted a RM100,000 personal loan and not a RM203,078.00 housing loan. It was represented to her that loan sum was RM100,000 and she did not know otherwise because she did not understand the contract language, that is English.

(2) Some of her documents to support a loan application such as her KWSP Statement were false;

(3) The respondent ought to have released the loan sum to Murali and not the Solicitors as stakeholders. The Solicitors, having received the loan sum, released it to Goh instead of Murali.

Loan Agreement Void

[10] First Point. The Appellant submits that Loan Agreement is void on the grounds of (a) misrepresentation and (b) non est factum. I find neither of these to be triable issues.

Misrepresentation

[11] Misrepresentation would only apply if it was the Respondent