Nik Hashim J:

[1] This appeal before this court involves an important point of banking law whether a bank which pays a cheque for which it has received a valid countermand from its customer can recover the payment from the payee.

[2] The appellant in this case is the Bank Bumiputra Malaysia Berhad ('the bank') whilst the respondent is the payee (DW1). The bank's claim against the respondent is for the return of the sum of RM25,000 together with interest and costs in respect of the payment of a cheque BBMB No 023688 dated 5 December 1992 (the cheque) in the name of the respondent, but the cheque was countermanded by the customer (PW4) of the bank before the payment. The cheque was a post-dated cheque issued by PW4 to the respondent along with eight other post-dated cheques, being part payment for the purchase of 90% shareholding in Nova Sante Corporation Sdn Bhd (the company) by PW4 and one Robert J Hubbard from the respondent for a total purchase consideration of RM430,000. A sum of RM100,000 had already been paid to the respondent leaving a balance sum of RM330,000 which was to be settled by way of nine monthly instalments in post-dated cheques, including the cheque. On 4 December 1992, PW4 called the bank by telephone and instructed the bank's relief deputy manager (PW3) to stop payment of the post-dated cheques, including the cheque. On 9 December 1992 the respondent presented the cheque at his bank, Hongkong and Shanghai Banking Corp. Ltd The cheque was cleared on 10 December 1992 and the respondent admitted receiving the payment of RM25,000 from the bank. It is not in dispute that the respondent was asked by PW4 in his letter (P7) dated 5 June 1992 not to present the cheque for payment as there were several anomalies existed in the sale and purchase of the shares in the company. Prior to the commencement of the action, the bank had made several attempts to recover the payment from the respondent but the respondent had refused to refund the money. He claimed that he was entitled to the money from PW4, and this is what he said in his testimony at p 68 para B. of record:

Saya tidak pulangkan wang itu kepada Bank Bumiputra Malaysia Berhad kerana ini adalah untuk membayar hutang PW4 kepada saya dan PW4 masih lagi berhutang dengan saya hingga hari ini.

[3] It is significant to note that the cheque was one of the six cheques which PW4 had instructed to stop payment. Except for the cheque, the other five cheques were stopped upon presentation by the bank. The respondent subsequently filed a suit against PW4 in Kuala Lumpur High court (Bahagian Dagang) Guaman No D2-22-1657-92 for the recovery of the money. In it, the respondent had included in the suit the sum of RM25,000 in respect of the cheque which the respondent had received from the bank.

[4] The bank's causes of action against the respondent are based on (a) s 73 of the Contracts Act 1950 (the Act) and or (b) 'money had and received'.

[5] In dismissing the bank's claim, the Sessions court Judge in his grounds of judgment at pp 42 and 43 of the record said as follows:

Di dalam kes kita bukan sahaja ada arahan 'stop payment' daripada PW4 malahan arahan itu telah dimasukkan ke dalam komputer. Tambahan lagi akaun PW4 tidak ada cukup wang untuk membayar cek P1 itu. Namun demikian Encik Mohd Nor bin Ludin iaitu teller bank plaintif telah menjelaskan bayaran cek tersebut. Tindakan Encik Mohd Nor bin Ludin ini bukan merupakan satu kesilapan tetapi adalah satu kecuaian atau seolah-olah disengajakan. Encik Mohd Nor bin Ludin mempunyai pengetahuan yang cukup bila beliau mendapati akaun itu tidak cukup wang dan Pengurus Bank Plaintif telah mengarah bayaran diberhentikan.

Setakat keterangan saksi-saksi yang ada Mahkamah ini memutuskan bahawa cek P1 telah dijelaskan bayarannya bukan atas satu kesilapan seperti yang tertakluk di bawah s 73 Akta Kontrak. Adalah diputuskan juga bahawa Plaintif gagal melepaskan beban pembuktian yang terletak di bahu mereka terutama apabila mereka gagal meman