Mohd Saari Yusoff JCA:

In the court below, the learned SAR who heard the application for a garnishment order nisi under O. 49 r. 1(1) RHC 1980refused to grant the order to be made absolute. On appeal to the judge in chambers, the learned judge allowed the appeal and granted the order to be made absolute. Against the order, the appellant (garnishee) appealed.

Prior to the application for such garnishment order, the respondent (JC) obtained an order for a judgment sum of RM493,227.80 against Padu Ehsan Sdn Bhd ("PESB" for short) in the High Court at Johor Bahru (videCivil Suit No. 22-114-1992). The judgment was not satisfied to the extent of RM153,448.02. Later, the respondent came to know that PESB was the earthwork contractor for the appellant (garnishee). Pursuant to the contract between the appellant and PESB, it was alleged that the appellant still owed money to PESB.

At the initial stage of the hearing of this appeal, the parties agreed that (exh. P7) p. 230 and (exh. P6) p. 234 to form part of the appeal record. They also agreed that pp. 231 to 233 and pp. 235 to 243 of the appeal record be expunged.

The dispute is over 1st and 2nd interim payments. The issue for determination is whether the first interim payment of RM530,200 and the second interim payment of RM184,700 had been disbursed to PESB.

The facts from the appeal record as narrated by En. Ng (the learned counsel for the appellant) was that the present case involved four interim payments, namely:

First payment RM530,200

Second payment RM184,700

Third payment RM696,000

Fourth payment RM300,000

The respondent (JC) did not dispute that payment nos. 3 and 4 had been made. The dispute was in respect of payment nos. 1 and 2. The appellant (garnishee)'s case was that payment nos. 1 and 2 totaling RM714,900 had been fully disbursed to PESB.

The court's attention was drawn to a number of documents. For the purpose of this appeal, we need only to mention certificate of interim payment no. 3 (exh. P6) at p. 234 of appeal record, Bank Negara cheque for RM530,200 (exh. P10) at p. 305 of appeal record, Bank Negara cheque for RM184,700 (exh. P11) at p. 312 of appeal record, statement of final account (exh. P3) at pp. 291 to 293.

In the case of certificate of interim payment (exh. P6), PESB acknowledged having received the sum of RM696,000. In the same document, the words "Bayaran Interim Terdahulu" RM714,900 were inserted therein, implying that said amount was disbursed to PESB. RM714,900 was the total amount of first and second interim payments.

The disbursement of RM714,900 is supported by the evidence of the two cheques (exh. P10 and exh. P11) which bear the endorsement of Bank of Commerce (M) Bhd. PESB's account with the Bank of Commerce is no. 04010550739007. The account number of PESB on the cheques and vouchers tallies.

The appellants case is further reinforced by the evidence of statement of final account (exh. P3). In that statement at p. 293 of appeal record, one Kuan Ee Leong director of PESB acknowledged receipt of interim payments (No. 1 to No. 4) amounting to RM1,710,900 which amount would have included payment nos. 1 and 2 totalling RM714,900. In the same statement at p. 293 of appeal record, the following words appear:

Saya/Kami*, yang menandatangani di bawah ini mengaku penerimaan Perakuan Muktamad di atas dan setelah meneliti butir-butir terkandung di dalamnya, bersetuju dengan Bayaran Muktamad Disyorkan Kena Dibayar dan mengaku bahawa saya/Kami* tidak ada tuntutan lanjut di bawah kontrak ini.

t.t. t.t.

Tandatangan Saksi Tandatangan Kontraktor

Nama Penuh: MD. NOR BIN AB HAMID Nama Penuh: KUAN EE LEONG

NO. K/P: 7267060 NO. K/P: 4866046

Alamat: SSB-1 Batu 2 1/2 Padu Ehsan Sdn. Bhd.

Bukit Baru Dalam 391-N, (1st Floor), Jalan Melaka. Mawar, Taman Peringgit Jaya, 75400 Melaka.

Tel. No: 06-247927

Fax/Tel. No: 06-247968

...

cap kontraktor

Tarikh: 6 Oct 1993 Tarikh: 6 Oct 1993.

En. Yau, counsel for the respondent (JC), argued that there was no evidence that th