Low Hop Bing JC:

This application in enclosure 14 is an application for summary judgment under O. 14 of the Rules of High Court. It is supported by the affidavits (enclosures 15 and 23) affirmed by attorneys of the plaintiff and contested by the affidavit (enclosure 21) affirmed by the first defendant.

The first defendant is the administratrix and the second defendant administrator of the guarantor, Dato Zakaria bin Sulong, deceased ("the deceased"). At the hearing of this application, learned Counsel for the plaintiff submits that there are 4 issues for determination by the Court and that from the affidavits together with all the exhibits filed herein, it is plain and obvious that these issues are non-triable issues and as such there is no defence to this action, as a result of which he prays for summary judgment against both the defendants.

Learned Counsel for the defendants submits that there are numerous triable issues here which can only be resolved by adducing evidence in the hearing of this suit or that "for some other reason there ought to be a trial."

In order to put the picture in its proper perspective, learned Counsel for the plaintiff submits that the 4 issues are:

1. Whether the plaintiff's claim against the defendant is time-barred?

2. Whether the plaintiff, after having obtained judgment against the other coguarantors in a previous suit i.e. Muar High Court Civil Suit No:23-14-1987 ("the previous suit") (in which the deceased was also a defendant), but not against the guarantor, the deceased, in the previous suit, is prevented from suing the defendants in the present suit?

3. Whether the defendants in the present suit are not liable because the plaintiff has failed to proceed against the deceased in the previous suit?

4. Whether the doctrine of res judicata applies to the present suit?

Issue 1: Whether the plaintiff's claim against the defendant is time-barred?

Learned Counsel for the plaintiff submits that this action is based on a demand guarantee in which the deceased was one of the guarantors. He says that since it is a demand notice, the cause of action only arises when a notice of demand has been served on the guarantor, in this case on 17 April 1992, as a result of which the cause of action arises from this date and the plaintiff has 6 years within which to commence an action against the guarantor. It is submitted for the plaintiff that this action was filed on 14 February 1993 and is therefore well within the 6-year time bar under s. 6(1)(a) of the Limitation Act 1953 , being an action founded on a contract of guarantee ("the said guarantee").

Learned Counsel for the defendants submits that the action is time-barred.

For the purpose of determining this issue relating to s. 6(1)(a) of the Limitation Act 1953 , it is necessary to peruse the terms of the said guarantee which is exhibit A in the affidavit enclosure 15 affirmed on behalf of the plaintiff. For this purpose, clauses 1, 4 and 11 of the said guarantee are important and are reproduced as follows:

1. I/we will pay to you on demand (emphasis added) (subject to the limit hereinafter specified) all money which now is or may during the continuance of this agreement be owing to you from the Customer(s) (whether alone or jointly with another or others) or remain unpaid on the general balance of his/their account with you including all advances overdrafts and discounts made or allowed by you and all bills notes or other instruments held by you on or in respect of which he/they or either/ any of them be or have been liable on you all charges for commission and other ordinary banking expenses interest at your usual rate or rates for the time being in relation in such accounts with monthly rests as ordinarily calculated by you although the relationship of banker and customer may have ceased and all costs charges and expenses which you may incur in enforcing or seeking to obtain payment of all or any part of the money hereby guaranteed or