GROUNDS OF DECISION

David Wong Dak Wah J:

[1] On 29th September 2006 I dismissed the appeal of the appellant/defendant ('appellant') against the decision of the Sessions Court Judge in allowing the application of the respondent/plaintiff ('respondent') to enter final judgment pursuant to O 26A of the Rules of the Subordinate Rules 1980 (SCR). In coming to my decision I indicated that I would give my reasons later. I do so now.

[2] In its statement of claim the respondent prayed for the following:

i. the principal sum of RM177,426.37;

ii. interest at the rate of 1.5% per month calculated on the principal sum of RM177,426.37 from 25 September 2003 until full and final settlement;

iii. costs;

iv. such further or other relief as deemed fit and just.

[3] The appellant filed his defense on 28th April 2005 denying any liability and puts the respondent to strict proof. Further it asserted that the respondent was only entitled to the sum of RM107,609.23 and there was an overpayment of RM17,309.77 upon which the appellant filed a counter claim for the aforesaid overpayment and another sum of RM3,696.00, being expenses expended to remedy defects caused by the respondent's negligence. The appellant in substance averred that whatever works done by the respondent is subject to the appellant's view of what is fair and reasonable amount.

[4] And by way of a notice of application dated 24 May 2005 supported by an affidavit of Salvador Powell Sing affirmed on 24 May 2005 ('Sing's first affidavit') the respondent applied for summary judgment.

[5] The appellant opposed the application and filed an affidavit in opposition affirmed by Chong Kok Khan on 21st June 2005 ('appellant's first affidavit') The appellant's first affidavit was replied to by an affidavit of Salvador Powell Sing affirmed on 4th July 2005 ('Sing's second affidavit') and a supplementary affidavit by Joseph Sing Sze Hong affirmed on 4th July 2005 ('Joseph's affidavit'). The appellant filed another affidavit in opposition affirmed by one David Sengalang Anak Uyang on 1st August 2005.

[6] Briefly it was the contention of the respondent that between the period from May, 2003 and August, 2003, they had supplied and delivered various construction and/or building materials, rented out machines as well as rendered services and/or carried out works for the appellant for various construction projects at various sites in the Samarahan Division in the total sum of RM304,333.57. All the respondent's relevant Invoices had been furnished to and save for Invoice No. 1457 were all duly signed and acknowledged receipt and stamped with the appellant's company's stamp. The relevant invoices contain the following endorsement:

"An interest of 1.5 % per month - will be charged on all over due bills"

[7] And the statements of account contain the following endorsements:

"This statement must be checked and any discrepancy notified to us in writing -within 14 days. An interest of 1.5 % per month -will be charged on all over due bills."

[8] And based on those endorsements, the respondent claimed that they were entitled to charge interests on overdue accounts. The appellant had on 5 occasions paid a total sum of RM 126,907.20 to the respondent thereby reducing the total principal sum outstanding to RM177,426.37. In opposing the application the appellant stated that the amount claimed were not fair and reasonable and it was agreed between the appellant and the respondent that the appellant shall be the sole judge as what is fair and reasonable.

[9] Hearing of the O 26A Subordinate Rules (SCR) came before the Sessions Court Judge who gave judgment for the respondent on 17th February 2006. Subsequently the appellant on the 22nd February 2006 filed the notice of appeal to the judge in chambers. That appeal is now before me.

[10] Mr Bexter Michael, learned counsel for the appellant, in his written submission dated 13 June 2006 contended that there are eight triable issues and hence the learned Sessions Court Judge was wrong in