Abdul Aziz Mohamad J:

This is an appeal from a decision of the learned senior assistant registrar ordering summary judgment against the defendant on a claim under a contract of guarantee.

Clause 8 of the contract of guarantee provides as follows:

8. Any notice demand or request required or permitted to be made or given under this guarantee shall be in writing and shall be validly given if served personally on me/us or sent by registered post to my/our address below written and in the event of posting shall be deemed to have been received by me/us within forty-eight hours after the time of posting.

Both sides agree that the only issue in this appeal is whether a letter of demand was properly served in accordance with cl. 8 so as to give rise to a cause of action against the defendant under the contract of guarantee.

What happened was that the letter of demand was sent to the defendant by A.R. registered post.The letter was returned, marked "tidak dituntut" on the envelope, together with an A.R. card which did not contain any acknowledgment of receipt.

It is not disputed that copies of the letter were sent to two addresses and that they were the addresses of the defendant.It is not disputed that both the letters came back marked "tidak dituntut" on the envelopes.There has been no claim by the defendant that the letters were so returned for such-and-such a reason or that the addresses were no longer occupied or that the defendant was not living there at the material time.He merely said he never received any letter of demand.The unavoidable implication is that there had been a refusal to claim or accept delivery, which would, in a sense, make it true that the defendant never received the letter.

I do not have to decide whether, in law, it would be open to the defendant to rebut the presumption of receipt provided by cl. 8, because he has not attempted to do so. A bare denial of having received the letter of demand will not do. If at all it is open to him to rebut the presumption, he must show circumstances that would have rendered it impossible for him to have received the letter of demand, such as, for instance, that at the time when the postal agent attempted to deliver the letter he was away on business or holiday and no one was in occupation at the two addresses.

At first, learned counsel for the defendant maintained that ordinary registered post was different from A.R. registered post and that since the plaintiffs had chosen A.R. registered post they had gone outside the scope of cl. 8 and therefore could not rely on the deeming provision of the clause.Later, however, after checking the postal legislation, he conceded that there was no difference but for the fact that, in the case of A.R. registered post, there is a requirement that the A.R. card be returned to the sender.

In my opinion, for the purpose of the question whether there was service under cl. 8, there is no difference between reg