Abdul Malik Ishak J:

Introduction

[1] The plaintiff obtained summary judgment against the defendants. Being aggrieved, the defendants filed a notice of appeal to the Judge in chambers as reflected in encl 14. There were numerous triable issues which can only be decided at the full trial and only after hearing the oral evidence of the witnesses. I allowed the defendants' appeal in encl 14 with costs and I gave an unconditional leave to defend. I too ordered the plaintiff to file Form 63. In an appeal of this nature, it is trite law that only one triable issue would be sufficient to decide the appeal in favour of the defendants.

[2] The usefulness of summary judgment can never be doubted. It is a means of disposing of cases which are virtually uncontested. If the plaintiff can prove its claim clearly and if the defendants are unable to set up a bona fide defence or raise an issue against the claim which ought to be tried, judgment should be given in favour of the plaintiff (Roberts v. Plant (1895) 1 QB 597 (CA); Robinson & Co v. Lynes (1894) 2 QB 577; Dane v. Mortgage Ins Corpn (1894) 1 QB 54 (CA); and Nassau Steam Press v. Tyler (1894) 70 LT 376).

[3] In contesting the summary judgment application, the defendants should show that they have a good defence to the claim on the merits. The defendants too should show that:

(a) a difficult point of law is involved; or

(b) a dispute as to the facts which ought to be tried exists; or

(c) any other circumstances showing reasonable grounds of a bona fide defence in favour of the defendants exist.

[4] The primary obligation remains on the defendants here to show that there is a triable issue or question or that there ought to be a trial for some other reason. In my judgment, the defendants have succeeded in doing so.

Facts Of The Case

[5] The plaintiff's claim against the defendants was for a combined sum of RM570,708.49 as at 24 December 1999. This sum was said to be based on two overdraft facilities allegedly granted to the defendants and they may be stated as follows:

(a) an overdraft facility of RM350,000 which was based on a letter of offer dated 26 May 1995 ('the overdraft facility'); and

(b) a second temporary overdraft of RM100,000 which was allegedly granted to the defendants at their request ('the temporary overdraft facility').

[6] The sum total of both the overdraft facility and the temporary overdraft facility came up to RM450,000. But, as I said, the plaintiff sought for the lump sum of RM570,708.49 as at 24 December 1999.

[7] Evidence wise, the plaintiff has not furnished any details as to the actual amount allegedly due and owing under each of the overdraft facility and the temporary overdraft facility. The plaintiff too has failed to show how the defendants owed the sum of RM570,708.49 as at 24 December 1999 to the plaintiff (Bank of Commerce (M) Berhad v. Tan Boon Soon @ Tan Po Lo (Trading As Messrs Syarikat Soon Tatt Trading) & Anor, [1995] 1 CLJ 69).

Triable Issues

[8] The overdraft facility was secured by a charge over the property held under HS(D)5215 Lot 29794 Mukim and Daerah of Kuala Lumpur bearing postal address at No 93, Lorong Zaaba, Taman Tun Dr Ismail 60000 Kuala Lumpur ('the said property'). The charge was registered on 14 July 1995. It was the contention of the plaintiff that the defendants had defaulted in the overdraft facility as well as the temporary overdraft facility. It was also the contention of the plaintiff that both the overdraft facility and the temporary overdraft facility were revoked by way of the plaintiff's solicitors letter dated 9 March 2000. It must be borne in mind that the overdraft facility was merely an overdraft facility and this was so stated in the letter of offer dated 26 May 1995 and the charge that was registered on 14 July 1995.

[9] I can certainly take judicial notice that there is a material difference between an overdraft facility and a term loan. In the former, the borrower is allowed to utilise the overdraft up to the present lim