JUDGMENT

Low Hop Bing J:

Appeal

[1] This is an appeal in encl. (15) filed by the appellant-defendant ("the defendant") to me as judge in chambers against the decision of the learned registrar who had on 28 May 2004 allowed the respondent-plaintiff's ("the plaintiff's") application by way of summons in chambers, encl. (13), under O. 14 of the Rules of the High 1980 , for summary judgment in the sum of RM508,604.21 together with interest at 8% p.a. from the date of the writ ie, 23 October 2003 to the date of realisation and costs.

[2] A reference hereinafter to an order and a rule is a reference to that order and rule in the Rules of the High Court 1980 unless the context otherwise requires.

Claim And Defence

[3] The plaintiff's claim on which summary judgment has been signed against the defendant has been set out at the commencement of this judgment.

[4] Defendant vide letter dated 18 May 1998 accepted the plaintiff's tender for the "construction, completion and commissioning of reinforced concrete reservoir for the trunk, main and other ancilliary works for water supply system in the district of Tampin and Rembau Negeri Sembilan Darul Khusus, more specifically the installation and commissioning of 900mm diameter water pipes and other relevant works at a consideration of RM2,969,000 ("the works"). The terms and conditions of the works were expressed in the agreement executed between the parties and stamped on 8 June 1998 ("the agreement").

[5] The plaintiff had in or about October 2001 completed the works. The defendant had from 3 August 1998 to 4 April 2004 made various progress payments to the plaintiff for the works.

[6] Vide defendant's certificate of payment No. 23 dated 26 March 2002, defendant confirmed that the nett value of the works done by the plaintiff was RM3,130,783.43 while the progress payments made by the defendant to the plaintiff amounted to RM2,622,179.22, thereby leaving a balance sum of RM508,604.12 which constitutes the plaintiff's claim herein.

[7] The defendant denied owing the balance sum and alleged that:

1. the defendant had received complaints from the Water Supply Department of Negeri Sembilan ("the department") that the plaintiff had failed to complete the works as directed by the defendant;

2. the defendant had to employ other contractors to complete the same at a consideration of RM223,782.52; and

3. final accounts had not been rendered by the department and so the plaintiff's claim is premature.

Service Of Summons In Chambers

[8] Citing Sarawak Electricity Supply Corp v. MS Shipping Sdn Bhd , it was submitted by defendant's learned counsel Mr. Ravinathan Muthiah that the summons in chambers and the affidavit in support filed on 6 April 2004 (collectively "the summons in chambers") were served on the defendant's solicitors on 12 May 2004 while the hearing thereof was fixed for 28 May 2004, but O. 32 r. 13(2)(a) and O. 14 r. 2(3) provide for mandatory service within 14 days of the issue thereof ie, on or before 20 April 2004, thereby causing prejudice to the defendant in view of the documents which the defendant has to prepare in reply to the plaintiff's application.

[9] For the plaintiff, it was contended by learned counsel Mr. CG Tan that an unsealed copy of the summons in chambers and affidavit in support had been served by AR registered letter dated 1 April 2004 on the defendant's solicitor who has duly acknowledged receipt thereof on 8 April 2004, adding that the aforesaid procedural rules have been complied with, and that the sealed copy served on the defendant's solicitor on 12 May 2004 has complied with O. 14 r. 2(3) .

[10] In my judgment, it is necessary to put in proper perspective the factual background in relation to the service of the summons in chambers.

[11] The plaintiff's solicitor vide courier letter dated 1 April 2004, addressed to the registrar of this Court, filed three sets of the summons in chambers together with the filing fees. A letter by way of AR registered post, enclosing both the d