JUDGMENT

Ramly Ali JC:

Introduction

This is an appeal by the plaintiff/appellant to the judge-in-chambers (encl. 16) against the decision of the learned SAR given on 24 November 2000 whereby the learned SAR had allowed the defendant/respondent's application (in encl.6) to strike out the plaintiff's concurrent writ and statement of claim, pursuant to O. 18 r. 19(1)(d) of the Rules of the High Court (RHC) 1980and under the inherent jurisdiction of the court.

In the defendant's application to strike out the plaintiff's concurrent writ and statement of claim, the defendant has raised three (3) grounds as follows:

i. the plaintiff's concurrents writ was not dated, thus in breach of O. 6 r. 5(4) RHC,

ii. the statement of claim served on the defendant was not signed nor dated by the plaintiff's solicitor, thus in breach of O. 18 r. 5 RHC; and

iii. the plaintiff's action before this court is a duplicity of proceedings and therefore is an abuse of process of court because the issues in this case have been raised in another case ie, Kuala Lumpur High Court Civil Suit No: D3-22-4404-98 filed earlier in another court and still pending (hereinafter referred to as the "D3's suit").

Plaintiff's Claim

The plaintiff claimed to be the registered owner of 1,200,000 ordinary shares in the defendant. On 28 October 1998 the defendant declared an interim net dividend of 10% amounting to RM329,803 payable to the plaintiff under a warrant bearing No: 98/5. On 18 December 1998, the defendant further declared under warrant No 98/50 an 11% dividend amounting to RM362,983.52 in respect of the same shares.

The administrator of the estate of Tunku Mansur bin Tunku Yaakob have made a claim in Kuala Lumpur High Court Suit No: D3-22-4404-98 (D3's suit) against the plaintiff alleging that the plaintiff has not paid for the said shares and that the estate is the rightful owner thereof. In the said D3's suit the plaintiff gave an undertaking not to dispose the said shares until the date of full trial ("sehingga tarikh perbicaraan penuh tindakan") and for the dividend under warrant No: 98/5 to be deposited in an interest bearing account. The defendant had not released the dividends under warrant No: 98/5 or warrant No: 98/50 to the plaintiff. Thus, on 20 July 2000 the plaintiff filed a writ of summon in this court against the defendant for an order that the defendant to pay the plaintiff a sum of RM692,586.72 (being the total amounts of the dividends videWarrant No: 98/5 and 98/50 together with interests and costs).

Later, the plaintiff served a concurrent writ of summon together with a statement of claim on the defendant. As a matter of fact, the said concurrent writ of summon was not dated; and the statement of claim was not signed and not dated by the plaintiff's solicitors. Thus on 3 October 2000, the defendant filed in a summon-in-chambers (encl. 6) to strike out the plaintiff concurrent writ of summon and the statement of claim on the mentioned above grounds.

Findings Of The Court

Undated Concurrent Writ

The defendant submitted that being undated, the said concurrent writ was in breach of O. 6 r. 5(4) RHC. The defendant would not know whether the concurrent writ served on the defendant is still valid or has expired. The plaintiff's counsel on the other hand, submitted that the irregularity is curable under O. 2 r. 1 RHCwhich should be applied liberally by the court. 6reads:

(4) A Concurrent Writ must be marked by the Registrar with the word "Concurrent" and he shall sign and date the day of issue of the Concurrent Writ."

The concurrent writ which was served on the defendant must be dated as required under O. 6 r. 5(4) RHC. The rules used the word "must". In Perbadanan Nasional Insurans Sdn Bhd v. Pua Lai Ong[1996] 3 CLJ 321Siti Norma Yaakob JCA has clearly stated:

The word "must" as opposed to "may" is used in the rule, and we interpret that to mean as implying a peremptory mandate as opposed to a mere direction or discretion as the word "may" implies. We equate the meaning