Edgar Joseph Jr J:

At the conclusion of the arguments yesterday, I allowed this appeal and shall now state my reasons for having done so.

This was an appeal against the decision of the learned President, Sessions Court, giving summary judgment in favour of the respondent for the sum of RM12,449.25 under the provisions of O. 26A r. 3(1) of the Subordinate Courts Rules, 1980, in an action for goods sold and delivered.

The record provided shows that the defence filed merely denied that the sum claimed or any part thereof was owing by the appellant to the respondent who was put to strict proof. Such a defence is bad in law because in an action for goods sold and delivered the defendant must not merely plead a denial of the debt but must plead any facts which negative its existence or show that the action is unsustainable on other grounds, for example, the order or contract, the delivery of the amount claimed. Indeed, if a defendant by his Statement of Defence simply "puts the plaintiff to proof of the several allegations in their statement of claim" the defendant will be taken as admitting the claims alleged in the Statement of Claim and the plaintiff would be entitled to judgment without adducing any evidence in support of his case: [See Harris v. Gamble [1878] VII Ch D 877].

The record also shows that an application in due form was made by the respondent praying for an order that the appellant be precluded from defending as the Statement of Defence does not disclose any defence, is frivolous, vexatious, mala fides and a sham tending to prejudice and delay a fair trial of the action and asking for judgment in favour of the respondent. The affidavit in support was affirmed to by the respondent's Managing Director exhibiting a photostatic copy of the relevant invoice which bears a signature of the appellant apparently acknowledging its contents. There was also exhibited a Chinese letter dated 20 May 1980, signed by the appellant apparently promising to settle the amount claimed. It was finally affirmed that the defence was a fabrication and its purpose was to obtain delay. There was however an affidavit in opposition affirmed to by the appellant in which the appellant claimed that he was induced to sign the invoice in question upon the false representation of the respondent's Managing Director that the goods were already packed and ready to be loaded for transportation to the appellant's premises. It was further alleged that the acknowledgment of receipt of the goods, being five bales of cotton, by the carrier of the goods, was not disclosed nor the name of the transport company mentioned. It was further alleged that the appellant's solicitors had written to the plaintiff's solicitors requesting the name of the transport company to be furnished but that this request was ignored. There was however no application for further and better particulars.

As regards the Chinese letter it was alleged that the contents related to transactions between the respondent and Beaut Line Trading Co., a company of which the appellant was Managing Director which then had a place of business at No. 41, Victoria Street, Penang, and which has since stopped trading, in other words, it was said that this letter was irrelevant to the claim.

It also appears that notice to cross-examine the respondent's Managing Director upon his affidavit, although not in the usual form, was duly given, yet at the hearing before the President he did not appear. The record suggests that Counsel for the appellant in the Court below (who incidentally was not Counsel who appeared for him on the appeal) referred to the affidavit by the respondent's Managing Director and claimed the right to cross-examine. I take it, therefore, that an oral application for leave to cross-examine was made. If so, this was perfectly in order: [Choo Kim San v. Malaysia Borneo Finance Corporation (M) Bhd. & Anor. [1975] . In such a situation the Court shall except in special circumstances reje