Hashim Yeop Sani CJM:

[1] The claim of the respondents/plaintiffs in the Court below arose out of a transaction involving two heavy machines being one Kawasaki Super Shovel (Engine No: 506431, Serial No: KLB 80-3325, Model KS 80) and Ursus Peroni Motor Graders (Model UP 120/A, Engine No: 60004323, Serial No: 006385) bearing registration No: WU 3566 and WU 3564 respectively. According to the statement of claim the appellants/defendants were the sole agents and distributors of these two vehicles and this was in fact admitted in para 2 of the statement of defence.

[2] The transaction was a simple hire purchase transaction between a company called Zarad Construction Sdn Bhd (Zarad) and the respondents. There was default under the hire purchase agreement (Exhibit P15). Behind the scene was however another agreement between the respondents and another leasing company called Colossal High Leasing Sdn Bhd (Colossal) which was a back to back arrangement whereby if Zarad defaulted Colossal had to indemnify the respondents to the full extent of the losses. Although Counsel for the appellants urged us to place importance on this arrangement (between the respondents and Colossal) we do not think it is really relevant for the purpose of determining the appeal since we agree with the finding of the learned Judge that Colossal was never the real vendor of the machines but only an introducer of clientele.

[3] Pursuant to the hire purchase agreement the machines were delivered to the appellants on 6 October 1980 which delivery was acknowledged. The appellants however refused to release the machines to the respondents claiming that they had not been paid and therefore had an unpaid seller's lien. Thus the action in the High Court.

[4] Although the background of the transaction was made complicated by the presence of other companies who are not parties to the suit namely Colossal, Zarad and Uni-East Malaysia Sdn Bhd (Uni-East) and Zamani and Company, the issue to be decided by the learned Judge was only the actual legal relationship between the appellants and the respondents. The respondents as plaintiffs were suing for the return of the said two machines or their value to be assessed and damages. It was agreed apparently that the value of the machines be set at RM400,000 which was accepted by the learned Judge.

[5] The claim of the respondents as stated in the statement of claim was simple. They had purchased the machines from Uni-East as dealers and the plaintiffs had hired the said machines to Zarad. The said machines were registered in the name of Zarad with the ownership claim endorsed for the plaintiffs in the log books of the vehicles.

[6] At the hearing before the learned Judge an official from the RIMV Wilayah Persekutuan (PW1) produced the records of the machines WU 3564 and WU 3566. It was shown they were new vehicles registered in the name of Zarad with ownership claimed by the respondents. The documents produced by the official were:

Exhibit P1A/P2A - Customs Forms No 1;

Exhibit P1B/P2B - Photocopies of Form 9;

Exhibit P1C/P2C - Forms MVI;

Exhibit P1D/P2D - Notifications of hire purchase;

Exhibit P1E/P2E - Letters from Guthrie requesting registration.

[7] It is clear from the documents that the distributors of the machines were the appellants, Guthrie Sdn Bhd as appellants were known then, who imported the vehicles. Documents P1A/P2A to P1E/P2E are the usual documents required from the distributor before vehicles are registered.

[8] Before the learned trial Judge two other witnesses were called on behalf of the plaintiffs. They were PW2, manager of the respondent company at the material time and PW3, the Managing Director of Colossal. PW3 was called to confirm the undertaking by Colossal to make good to the respondent any default in the payments under the hire purchase agreement. Beyond noting this we do not think that it would be the concern of this Court to establish anything else because Colossal is not party to the suit. Whatever arra