The court affirmed that an oral agreement for a friendly loan can be established through conduct and testimony, and claims are not time-barred if filed after a demand for repayment.

JUDGMENT

Muhammad Najib Ismail M:

A. Introduction

[1] This is an appeal filed by the Defendant after this Court had allowed the Plaintiff's claims against the Defendant with costs.

B. Brief Facts

[2] Facts of the case can be summarised as follows:

i) On the Defendant's request, the Plaintiff on 9 September 2011 has advanced an amount of RM40,000.00 on behalf of the Defendant to Dato' Malik Imtiyaz Sarwar (DMIS) being a legal fee for two (2) leave applications (OS 228 and OS 229) in the Federal Court whereby the Defendant is the applicant for those two applications.

ii) The Plaintiff alleged that the Defendant via M Jayaraman (ex-director of the Defendant) and Mr Abdul Latiff bin Mohd Ismail (DW1) promised that the said amount advanced by the Plaintiff will be paid back by the Defendant when the Defendant is able to pay back in the future.

iii) However, the Defendant denied. There was no such promise made by the Defendant or its directors and DW-1 was never been informed by the late M Jayaraman that the Plaintiff has paid the legal fees on behalf of the Defendant or such promise of repayment existed.

iv) The Plaintiff later in September 2023 found that the Defendant is in the position to repay him since the High Court of Malaya in Kuantan in interpleader summon proceeding has ordered a sum of money amounting to RM200,000.00 with the interest (total sum is around RM360,000.00) to be returned to the Defendant.

v) Therefore, the Plaintiff initiated this action against the Defendant to recover his money from the Defendant. Meanwhile, the Defendant claimed in the event there is such promise made by the Defendant via its director/directors, the Plaintiff's action is caught by limitation period and time barred.

C. Issues To Be Tried

[3] In this case, parties had agreed to focus on four (4) main issues to be tried by this Court as per encl 42.

[4] This Court is guided by but not limited with the agreed issues in determining, on the balance of probabilities, claims made by the Plaintiff against the Defendant. Summary of the issues to be tried are as follows:

i. Whether the Plaintiff has paid an amount of RM40,000.00 to Dato' Malik Imtiyaz Sarwar on behalf of the Defendant? If yes, whether the payment made is upon the Defendant's request or in alternative, whether the Defendant has knowledge but did not object to the said payment made by the Plaintiff?

ii. Whether there is an oral agreement that the payment paid by the Plaintiff on behalf of the Defendant is a friendly loan with a term that the Defendant will repay as soon as the Defendant has sufficient fund to do so?

iii. Whether the Plaintiff's claim is time barred?

D. Law On Evidence

[5] It is trite that the Plaintiff has the legal burden to prove his claim and, as prescribed by ss 101 and 102 of the Evidence Act, which read:

i) 101 Burden of proof

(1) Whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

ii) 102 On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

[6] This was explained in a Federal Court case "Hong Yik Trading v. Liziz Plantation Sdn Bhd; [2017] 5 MLJ 398; [2017] 8 CLJ 491", in the following words:

"It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s 101 of the Evidence Act 1950 ). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence."

[7] Reference is also made to the case of "Gerard Jude Timothy Pereira v. Kasi KL Palaniappan; [2017] 6 MLJ 54" whereby it was held by the Court of Ap