Ramly Ali J:

[1] The 1st Defendant is appealing against the learned SAR's decision dated 26 September 2005 which allowed the plaintiff to enter summary Judgment against the him.

Brief Facts

[2] The plaintiff's claim against the defendants is for the sum of RM1,352,229.81 as at 8 June 2004 being the amount outstanding under an overdraft facility together with interest accrued from 9 June 2004 upon the contract rate calculated at 3.5% per annum on the plaintiff's base lending rate (or such other rate as may be varied from time to time) until the date of full settlement.

[3] Pursuant to letters of offer dated 12 September 2001 and 10 September 1997 issued by the plaintiff and accepted by Strategy Powerhouse Sdn Bhd, (the borrower) the plaintiff agreed inter alia to grant an overdraft facility in the sum of RM800,000 to the borrower subject to the terms stated in the said letters of offer.

[4] Pursuant to letters of guarantee dated 17 September 1996 and 19 September 1997, as consideration to the plaintiff granting the Overdraft Facility to Strategy Powerhouse Sdn Bhd, both the defendants agreed jointly and severally to pay to the plaintiff when demanded, the sum of indebted by Strategy Powerhouse Sdn Bhd, in the event fails to repay the said amount.

[5] The plaintiff has provided the Overdraft Facility to Strategy Powerhouse Sdn Bhd and the facility had been fully utilized. Due to the default by Strategy Powerhouse Sdn Bhd to make repayment of the amount due and owing under the Overdraft Facility, the plaintiff filed an action in the High Court of Kuala Lumpur vide Suit No: D1-22-714-2004 whereby Strategy Powerhouse Sdn Bhd was named as 1st Defendant, the 1st Defendant in this present action was named as 2nd Defendant and the 2nd Defendant in this present action was named as 3rd Defendant.

[6] Suit No: D1-22-714-2004 was withdrawn against the 1st and 2nd Defendant on 15 July 2004 with liberty to file afresh. Judgment has been obtained on 25 July 2002 against Strategy Powerhouse Sdn Bhd whereby winding-up proceedings was commenced resulting in a winding up order being made against Strategy Powerhouse Sdn Bhd the plaintiff refiled the present action on 4 August 2004 against the 1st and 2nd Defendants, as guarantor.

[7] Judgment in default of appearance was obtained against the 2nd Defendant on 25 January 2005. On 10 March 2005 the plaintiff filed application for summary Judgment under O 14 RHC 1980 against the 1st Defendant.

[8] On 26 September 2005 the plaintiff's O 14 application against the 1st Defendant was allowed with costs. On 5 October 2005 the 1st Defendant filed the present notice of appeal to the judge in chambers to appeal against the said decisions of the learned SAR.

1st Defendant's Submission

[9] The 1st Defendant submitted that summary Judgment should not have been allowed in the present action as there are several issues to be tried.

[10] The issues raised are as follows:-

(i) that the plaintiff has no cause of action to obtain summary Judgment against the 1st Defendant;

(ii) that the plaintiff's action is premature as the plaintiff has not sent any letters of demand to the 1st Defendant, to demand for the outstanding amount owed by Strategy Powerhouse Sdn Bhd;

(iii) that all the plaintiff's affidavits are defective as the plaintiff failed to insert the complete jurat ie, the title of the action was not inserted into the jurat - failing to comply with O 41 r 1(7) & (8) of RHC 1980; and

(iv) that 1st Defendant is not liable to pay the plaintiff for the sum owed by Strategy Powerhouse Sdn Bhd, as the plaintiff has not proved that it has provided loan to Strategy Powerhouse Sdn Bhd.

Findings Of The Court