Back
SUPREME COURT KUALA LUMPUR
ARAB MALAYSIAN MERCHANT BANK BHD – Appellant
Versus
JAMALUDIN MOHD JARJIS – Respondent
[Civil Appeal No: 03-37-1990 ]
[1] We dismissed this appeal with costs and ordered that the deposit be paid to one Dr Jamaludin bin Dato' Mohd Jarjis (the respondent) to account of his taxed costs and now give the reasons for our decision.
[2] The issue in this case was whether the respondent should be allowed to intervene in Civil Suit No: C 2870-84 between Arab Malaysian Merchant Bank Berhad (the appellant) and Azam Murni Sdn Bhd and one Mohamed Mazlan bin Idris (the judgment debtors). The appellant had on 18 February 1985, obtained judgment in default of appearance against the judgment debtors in the said civil suit for a sum of RM82,475.70 together with interests at 0.5% per day calculated from 1 April 1984, to date of realisation and RM225 costs. When a demand was made on the judgment debtors, the respondent undertook to settle the judgment debt by monthly instalments of RM3,000 each in consideration of the appellant refraining at his request from enforcing the judgment against the judgment debtors. A letter of undertaking dated 10 December 1986, was executed by the respondent before an advocate and solicitor. (See p 33 of the appeal record). The respondent kept up with his instalment payments until the middle of 1988 when he was unable to do so due to financial difficulties, and on 28 June 1989, he applied to set aside the said judgment in default against the judgment debtors on the ground that it was irregular as the interest ordered to be paid in the judgment far exceeded that allowed under O 42 r 12 of the Rules of the High 1980.
[3] In order to have the judgment in default set aside, the respondent applied to the Court for leave to be made a party to the said suit and was allowed to intervene and be made a party in the action by the Senior Assistant Registrar of the High Court on 13 September 1989. The appellant appealed to the Judge in chambers on 16 September 1989, and its appeal was dismissed by the learned Judge on 20 February 1990.
[4] On appeal before us, Mr DP Naban, leading Counsel for the appellant, pointed out that the principal debtors have not applied to set aside the judgment in default which, at the relevant time, that is 18 February 1985, allowed interest to be at the contractual rate and not that as laid down in O 42 r 12. Counsel contended that the respondent should have applied to set aside the agreement in his said letter of undertaking on which the appellant had instituted an action against him in Kuala Lumpur Sessions Court Summons No 62-3975-1988 for breach of the said undertaking. Mr Naban then referred to the following test laid down by the Privy Council in Pegang Mining Co Ltd v. Choong Sam & Ors, [1969] 2 MLJ 52 & 56 for the Court to decide whether a person is entitled to be added as a party:
A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?
and contended that the learned Judge had applied the wrong test in this case.
[5] It was held by the Privy Council in the Pegang Mining Co Ltd (supra) case that one of the principal objects of O 16 r 11 of the former Rules of the Supreme Court 1957, is to enable the Court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard. It must be noted that the Privy Council in that case added that to achieve that object calls for a flexibility of approach which made it undesirable in that case, in which the facts are unique, to attempt to lay down any proposition which could be applicable to all cases. Our present O 15 r 6 of the Rules of the High 1980, which replaced the former O 16 r 11 of the Rules of the Supreme Court 1957, is in pari materia with O 15 r 6 of the UK Supreme Court Practice. The scope of the present rule, so far as concerns t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
