Abdul Malik Ishak J:

[1] Miss A Navamani, the learned Counsel for the appellant, orally applied for these two cases that came by way of an appeal from the decisions of the Senior Assistant Registrar ('SAR') to be consolidated and heard together. I acceded to her request as I was told that the Counsel for the respondent was amenable to this idea. These two cases were appeals from the decisions of the SAR who refused to grant summary judgments against the respondents for RM337,616.12 for civil suit no: 22-15-1990 and for RM380,497.66 for civil suit no: 22-16-1990. The arguments advanced by the parties for these two cases were based on similar grounds and I shall deal with each of these cases in sequence.

Civil Suit No: 22-15-1990

[2] In a nutshell the facts were as follows. By a lease agreement dated 2 June 1988, the appellant as lessor leased to Rextex Rubber Products (M) Sdn Bhd ('Rextex') as lessee one new unit of an Automatic Latex Dipping Machine Model NCH C/W Accessories ('the said machine') for a period of 25 months commencing from 2 June 1988 and in consideration thereof 'Rextex' covenanted and agreed, inter alia, to pay the appellant the total sum of RM393,750 by way of rent by 25 monthly instalments of RM15,750 each with interest on overdue payment at the rate of 18% per annum simple interest calculated on a daily basis. On 2 June 1988, Ng Cheong Heng ('CH Ng'), in consideration of the appellant entering into the lease agreement, executed a Guaranty and Indemnity document. In due course, Rextex as lessee paid ten (10) monthly instalments of RM15,750 each and no more.

[3] Two letters of demand, both dated 2 September 1989, were sent to Rextex and CH Ng wherein the appellant demanded payment of the arrears of instalments then outstanding. As there was no response to these letters of demand, the appellant commenced proceedings for the recovery of the arrears of instalments. On 15 June 1990, the appellant took re-possession of the said machine. Acting cautiously and pursuant to the lease agreement, the appellant on 8 November 1991 disposed off the said machine for RM23,333.33 to the highest tenderer. After taking into account the proceeds of sale, the outstanding amount due as at 26 November 1991 was RM337,616.12. By a stroke of misfortune Rextex was wound up on a petition by one of its creditors, leaving CH Ng to contest the proceedings alone. On 12 February 1993 the appellant through their solicitors sent a letter of demand to CH Ng for the sum of RM337,616.12.

[4] It is now well known that the purpose and object of an O 14 of the Rules of the High , 1980 (RHC) is to enable the plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an issue which ought to be tried: Roberts v. Plant [1985] 1 QB 597. The Privy Council in Jones v. Stone [1894] AC 122 considered summary judgment:

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... to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment, and where, therefore, it is inexpedient to allow a defendant to defend for mere purposes of delay.

[5] A triable issue may be established by showing that there is a defence to the claim, a dispute on the facts (Saw v. Hakim [1889] 5 TLR 72), or that a point of law requires determination (The Electric and General Contract Corporation v. The Thomson - Houston Electric Company [1895] 10 TLR 103; Cow v. Casey [1949] 1 KB 474). The House of Lords in Jacobs. v. Booth's Distillery [1901] 85 LT 262 established that the Court's role at the hearing of an application for summary judgment is not to delve into the merits of the issues raised by the defendant. The Court is supposed to determine whether an issue has been raised, it is not for the Court to consider whether the defendant is likely to succeed or fail. Bramwell LJ in Thompson v. Marshall [1880] 41 LT 720 tersely said that O 14 was:

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... intended to apply to clearly undefended causes, and to prevent de