This was an appeal by the appellant/2nd defendant against the order of the sessions court allowing the application by the respondent/plaintiff for summary judgment in respect of a claim against the appellant, in his capacity as a guarantor for the 1st defendant pursuant to a letter of guarantee, under O. 26A of the Subordinate Courts Rules 1980 ('the SCR'). The first paragraph of the letter of guarantee showed the following: (a) the consideration is the purchase by the 1st defendant on credit terms to the 'extent' of RM50,000 only; and (b) the 2nd defendant hereby guarantees to pay all outstanding accounts by the 1st defendant in the event of . The appellant contended that a construction of the first paragraph of the letter of guarantee proved that the guarantee was to the extent of the sum of RM50,000 only whereas the claim by the respondent was in the amount of RM121,338.46. The appellant also averred that the respondent had failed to comply with r. 2 of O. 26A of the SCR, the main thrust of his submission being that since it is a mandatory rule, it followed that paras. 1 and 2 of form 75A of the SCR are mandatory requirements and any omission to expressly include paras. 1 and 2 renders the affidavit - in - support defective.

Held (dismissing the appeal):

[1] On the facts, the respondent had more than satisfied the second condition on the verification of the facts of the claim in the affidavit - in - support, and the omission of such general terms as in para. 2 or (2) in form 75A of the SCR was not critical and certainly not a breach of r. 2(1) of O. 26A of the SCR. Moreover, the appellant was estopped from raising the issue of non - compliance of r. 2(1) as it was not raised at all in the court below, and the debt stated in the statement of claim and in the affidavit - in - support was never disputed by the appellant at all material times. A perusal of the respondent's affidavit supporting the application for summary judgment showed that the facts that gave rise to the claim against the appellant had been amply and sufficiently set out. It was indeed clear that the deponent of the said affidavit had verified the facts from personal knowledge and from documents that had been identified and exhibited in the record of appeal, of which the appellant had never disputed. In the premises, the respondent had fully complied with the preliminary requirements under O. 26A r. 2 of the SCR. (pp 481 d - h, 482 a, d - h & 483 a)

[2] It could be seen that the credit terms & to the 'extent' of RM50,000 & was in respect of the purchase by the 1st defendant which formed the consideration to the guarantee. On the other hand, the appellant guaranteed to pay & all outstanding accounts by the 1st defendant in the event of & . Indeed, the 1st defendant could purchase on credit terms for more than RM50,000 to which the guarantor/appellant was liable to pay all outstanding accounts in the event of default as it was not stated anywhere in para. 1 of the said letter of guarantee that the credit was limited to RM50,000 only or that the guarantee was limited to RM50,000. There was no breach of any fundamental condition in the letter of guarantee when the 1st defendant, according to the facts of the case, purchased goods to an outstanding account of RM121,338.46. In the premises, so long as the respondent had given a promise on credit terms to the extent of RM50,000 only, there was sufficient consideration for it to enforce the promise of the appellant to guarantee all outstanding sums. (p 483 d - e & 484 f)

[3] As far as the letter of guarantee was concerned, there was no additional payment in the form of default interest or increased interest over and above the prescribed interest rate of 1.5% per month, which was the prevailing interest during the contract. Therefore, Contracts Act 1950, ss. 75 1950 was not applicable to the prevailing interest rate of 1.5% per month that had been agreed upon by the parties. (p 489 d)

[4] On the facts, the filing