The burden of proof in civil cases lies with the claimant, who must establish their case on the balance of probabilities, while the defendant must provide credible evidence to support claims of forgery.

A. Introduction

[1] This action is emanated from a claim for outstanding sum owed by the Defendants' company known as Eminent Ventures Sdn Bhd to the Plaintiff's company. The Plaintiff brought this action against the third Defendant as he is one of the guarantor for the said company in a building material supply transaction.

[2] After full trial, this court allowed the Plaintiff's claim. Dissatisfied, the Defendant filed this appeal.

[3] The relevant cause papers filed and marked in this trial are:

a) Bundle of Pleadings ("Bundle A");

b) Common Bundle of Documents ("Bundle B");

c) Agreed Facts dated 2 March 2023 ("Bundle C");

d) Issues to be Tried dated 2 March 2023 ("Bundle D");

e) Plaintiff's Case Summary dated 2 March 2023 ("Bundle E);

f) Defendant's Bundle of Documents ("Bundle F);

g) Defendant's Case Summary dated 24 March 2023 ("Bundle G'');

h) Police Report dated 31 March 2023 ("Exhibit D1"); and

i) D2's attempt to fabricate D3's signature ("Exhibit P2").

[4] The witnesses who had testified during the trial are as follows:

i. SP1: Zuniza Binti Mohd Shah Roni

ii. SD1: Jai Zerul Bin Abdul Hafez (2nd Defendant -D2)

iii. SD2: Azman Bin Abu Bakar (3rd Defendant - D3)

[5] The following are the witness statements that were tendered and marked as evidence during the trial:

a. Witness Statement of Zuniza Binti Mohd Shah Roni (Plaintiff's witness) WSSP1

b. Witness Statement of Jai Zerul Bin Abdul Hafez (Defendant's witness) WSSD1

c. Witness Statement of Azman Bin Abu Bakar (Defendant's witness) WSSD2

B. Salient Facts

[6] The Plaintiffs company supplied building materials to Eminent Ventures Sdn Bhd The Defendants are guarantors to a purchase made by Eminent Ventures Sdn Bhd, It is an agreed fact that pursuant to the Letter of Guarantee and Indemnity dated 20 July 2015 ("Guarantee") there is an agreement to purchase the materials from the Plaintiff and all the guarantors D1, D2 and D3 are jointly and severally liable for any debt owed to the Plaintiff pursuant to this agreement.

[7] It is also an agreed fact that Eminent Ventures Sdn Bhd was wound up on 9 May 2016.

[8] The Plaintiff had since 1 August 2016 initiated this suit against the Defendants for the sum of RM248,913.51.

[9] As there was no appearance entered by any of the parties, a Judgment of Default ("JID") was entered against all the Defendants. Subsequently, bankruptcy proceeding was also initiated against all the Defendants.

[10] It was then discovered that D1 was already adjudicated a bankrupt. D2 and D3 were subsequently adjudicated a bankrupt by the Plaintiff.

[11] On 22 July 2020, D3 applied and was able to set aside the Adjudicating and Receiving Order. However, D3 subsequently did nothing in the proceeding.

[12] On 27 November 2020, the Plaintiff again initiated bankruptcy proceeding against D3.

[13] On 1 July 2022 D3 managed to set aside the bankruptcy notice.

[14] D3 subsequently applied to this court to set aside the JID and despite the delay on the part of the third Defendant to make this application, this court allowed the application and reinstated this aging case as this court is of the considered view that D3 should be given an opportunity for his case to be heard since the defence raised is that he did