JUDGMENT

Nik Hashim JCA:

Background

[1] There are two appeals before the court and both of them raise identical issues. In the circumstances, the parties have agreed that the decision in respect of Civil Appeal No: W-02-156-2002 binds the parties in respect of Civil Appeal No: W-02-157-2002. The court acceded to the agreement.

[2] The appellant (the 1st defendant) filed an application before the learned judge in chambers for amendment by inserting a new para 13 in its statement of defence pursuant to O 20 r 5 of the Rules of the High 1980 (the RHC). The application was dismissed. Hence this appeal.

[3] The facts that led to the application by the 1st defendant are that the respondent plaintiff commenced a civil action in the High court against the 1st defendant and one Hamidah as the 2nd defendant. As against the 1st defendant, the plaintiff alleged that the signatures on 117 cheques with a total face value of RM483 591.21 (Civil Appeal No: W-02-156-2002) and on 154 cheques with a total face value of RM1 244 255.72 (Civil Appeal No: W-02-157-2002) were forged by the 2nd defendant. Therefore, the aforesaid sums were wrongfully paid out from the plaintiff's account by the 1st defendant. As against the 2nd defendant, the plaintiff alleged that she had converted the cheques and sought recovery under the doctrine of "money had and received". Thus, the plaintiff's cause of action against the 1st defendant is based on s 24 of the Bills of Exchange Act 1949 whereas the cause of action against the 2nd defendant was for the tort of conversion.

[4] On 16 January 2001 upon the application by the plaintiff's counsel, the learned judge entered judgment against the 2nd defendant who failed to turn up for pre-trial case management pursuant to O 34 r 3(1) of the RHC after she had filed her defence. After the default judgment against the 2nd defendant was entered and perfected, the 1st defendant filed the application for amendment of its defence on 5 November 2001. The proposed amendment reads:-

13. The plaintiff had entered judgment against the 2nd defendant on 16 January 2001. As a consequence thereof, the plaintiff is prevented and or estopped from further proceedings with its claim against the 1st defendant and or the entry of judgment against the 2nd defendant by the plaintiff in law amounts to an election which bars further proceedings of the plaintiff s claim against the 1st defendant.

[5] It is to be noted that on 29 March 2001, the learned judge fixed trial dates on 5 November 201 to 8 November 2001. On 1 November 2001 the plaintiff served its last bundle of documents. The learned judged adjourned the trial date to 15 April 2002.

Grounds For Amendment

[6] The grounds for the application for the proposed amendment were as follows:-

(a) The plaintiff had entered judgment in default against the 2nd defendant on 16 January 2001;

(b) The 1st defendant's solicitor only knew on 25 October 2001 that the judgment against the 2nd defendant was sealed;

(c) It is a good defence of the 1st defendant based on the fact that the plaintiff had entered judgment against the 2nd defendant and therefore the plaintiff is prevented and or estopped from proceeding his claim against the 1st defendant and or the plaintiff by entering judgment against the 2nd defendant in law amounts to an election which prevents further proceedings of its claim against the 1st defendant;

(d) The proposed amendment could not be included in the defence due to the fact that the judgment entered against the 2nd defendant took place after the defence was filed;

(e) The proposed amendment is to identify the real issue between the plaintiff and the 1st defendant and so that the proposed amendment can be pleaded and argued;

(f) The amendment will not prejudice the plaintiff.

Judge's Decision

[7] The learned judge dismissed the application. From the grounds of judgment, the learned judge appears to have dismissed the application for three reasons:-

(a) On the merits of the iss