Suriyadi J (Now JCA):

[1] This is the plaintiff's appeal against the decision of the sessions court judge dismissing its application for summary judgment under O 26A of the Subordinate Courts Rules 1980. The plaintiffs claim against the defendants in the court below is for the amount of RM218,662.80 being goods sold and delivered.

[2] It is the plaintiff's case that the first defendant had since May 2002 ordered goods from the plaintiff and the plaintiff had delivered the goods to the first defendant, the acceptance of which had been acknowledged by the first defendant, who had placed their company chops on the delivery orders. The delivery orders were duly signed by the first defendant's representatives and addressed to the first defendant. The signature and chop on the delivery orders bear the words 'Received Mentioned Goods in Good Condition and Water Free'. Invoices issued by the plaintiff were addressed to the first defendant.

[3] The second, third and fourth defendants were guarantors by virtue of a letter of guarantee dated 20 March 1997. The first defendant made payment to the plaintiff vide two Bank Utama cheques that subsequently could not be cleared because payment was stopped by the first defendant. The plaintiff then sent a letter of demand dated 19 March 2003 vide registered post to all the defendants. Despite the letter, the defendants had all neglected to pay the amount claimed.

[4] The first issue raised by the defendants is that the plaintiff had been told since the first defendant's first letter dated 19 February 2001 to the plaintiff that instructions to deliver goods are subject to terms stated in the letter. The terms are that only authorised personnel named in the Letter may acknowledge receipt of the goods with the company's chop. The plaintiff was given specimen signatures and the chop used for acknowledging receipt of the goods, vide the first defendant's letter dated 19 February 2001. The plaintiff was said to have breached the said terms by allowing unauthorised personnel to receive the goods.

[5] The defendants claimed that the plaintiff's dispute over the letter dated 19 February 2001 is sufficient to show that the issue is triable.

[6] The defendants' second issue is that the first defendant had to stop payment of the two cheques issued to the plaintiff because of some discrepancies in the plaintiff's deliveries.

[7] The defendants' third issue is the alleged wrongful payment for Invoice No 9060383448 dated 28 August 2002, in that it was made by the first defendant without realising that the delivery order was signed by an unauthorised personnel.

[8] The defendants' fourth issue is that the plaintiff's denial that there ever was a meeting with the defendant's representative, Yeap Ai Kean ('the third defendant') could only be determined through a full hearing.

[9] The defendants' fifth issue is about the letter of guarantee. The defendants claim that it is not valid because the plaintiff failed to send statements of account duly signed by the managing director or its authorised representative.