JUDGMENT

Suriyadi Halim Omar JCA:

[1] We had unanimously dismissed the appeal with costs, and had affirmed the decision of the learned High Court judge who had refused the defendant's appeal (hereinafter referred to as the appellant) based on a preliminary objection raised by the plaintiff, hereinafter referred to as the respondent. At the subordinate Court's level the Sessions Court judge had allowed the respondent's application to enter a judgment under O. 22 rr. 1 & 3 of the Subordinate Courts Rules 1980 . These provisions read as follows:

1. Without prejudice to Order 14, rules 2, 3, 4 and 19 a party to a cause or matter may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the Cause of any other party.

2. ...;

3. Where admissions of fact are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the Court may give such judgment, or make such order, on the application as it thinks just.

[2] The brief facts of the case, as per the statement of claim, are as follows: on 8 May 1990, the respondent had entered a Merchant Agreement with the appellant, where the latter had agreed to purchase transactions by Mastercard holders at the respondent's establishment, which sells electrical goods. Pursuant to cl. 2 of the said agreement the appellant had agreed to honour all cards when properly presented on payment for goods and services from the cardholders. In accordance with the agreement, the appellant had installed an Electronic Point of Sale Terminal at the respondent's premise, for the purpose of authorizing the cards when presented. Cardholders did purchase the goods and services of the respondent with payment being made through those cards. The total number of goods and services purchased were valued at RM27,934.24. The purchases were verified and authorized by the appellant through the Electronic Point Sale Terminal.

[3] On 8 February 1995, the respondent had sent a notice to the appellant for the amount due, but was refused, resulting in him taking up an action at the Sessions Court to claim for the payment of the amount still owing. As stated above, the respondent on 4 April 2001 had filed an application to enter judgment against the appellant under O. 22 rr. 1 and 3 of the Subordinate Courts Rules 1980 pursuant to an admission of the appellant that it had entered into the abovementioned Merchant Agreement. The Sessions Court judge on 14 August 2002 had allowed the respondent's application to enter judgment against the appellant. Being dissatisfied the appellant thereupon appealed to the High Court.

[4] Before the learned judge, the respondent raised a preliminary objection, in that he had not been served with a properly endorsed notice of appeal as required by O. 49 Subordinate Courts Rules 1980 ("SCR") . "Endorsed" here means that the impugned notice of appeal was yet to be filed at the lower Court registry, where the filing fees together with the date of receipt of the notice of appeal will be imprinted by the "franked" receipt, thereafter to be processed by the administrative staff, and attended to by the lower Court registrar. In the minimum, that notice would have been dated. At the end of the day, once the needful administrative actions have been completed, that processed document would be extracted by the appellant for onward service to the respondent or respondents. The Rules also require that a copy of the notice be sent up to the High Court Registry for further action where a reference number is supplied. The above flow chart is just a simple overview of what happens when a notice of appeal is filed before that document is extracted prior to service.

[5] What happened here was that, the appellant had served a notice of appeal on