The burden of proof lies with the defendant to establish claims of forgery, which must be proven on a balance of probabilities, while the plaintiff's claim of indebtedness was substantiated by binding agreements and supporting evidence.

Briefs Facts

[1] This is a claim for monies due under a margin facility agreement granted by the plaintiff to the defendant on 17 November 1997. The limit afforded to the defendant was RM60 million. With this facility, the defendant was able to purchase and sell stocks, shares, debentures and warrants through the Kuala Lumpur Stock Exchange (Bursa Malaysia) subject to the terms and conditions in the agreement. The facility was utilized and trading was conducted through the account opened. The defendant failed to repay the amount due and the plaintiff sued. As at 5 June 1998, the total indebtedness of the defendant is RM39,253,565.53 together with interest and roll-over fees of RM17,257,871.09. Default judgment was initially entered against the defendant. The defendant learnt about this default judgment through CTOS which recorded bankruptcy proceedings as pending against him. Subsequently, the default judgment was set aside and after close of pleadings, the matter finally came up for hearing on 15 April 2009. In the intervening period before this matter came up for trial, the plaintiff company was wound-up on 11 March 1999 and provisional liquidators were appointed.

[2] The principal, if not the only defence of the defendant is one of denial - denial of the opening of the account, denial of instructions to trade; denial that the signature on the relevant forms are his and denial that the address on the relevant forms are his address. At para 4 of the defence, it is pleaded that "defendan adalah mangsa skim penipuan di mana nama, maklumat dan tandatangannya telah dipalsui dan disalahgunakan oleh pihak-pihak tertentu. Segala atau apa-apa tandatangan defendan yang terdapat pada mana-mana dokumen dalam milikan plaintif berkenaan perjanjian mahupun tawaran tersebut adalah palsu. defendan tidak pernah menggunakan kemudahan perjanjian tersebut dan atas alasan itu defendan tidak langsung sama sekali terhutang kepada plaintif."

Preliminary Issue

[3] Before dealing with this defence, I need to first dispose a preliminary point raised by the plaintiff. The plaintiff takes the position that because the defence is one of forgery or fraud, details of such forgery or fraud must be pleaded - see Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd , ; . Because of the failure to plead, this plea must be disregarded. I have carefully considered this point and have found that the defence is as I have said earlier, one of denial and details or reasons for such denial are offered. Essentially, the defendant has pleaded that the signatures in the relevant documents are not his and, that his signature has been falsified. The facts in Yoong Sze Fatt are quite distinguishable from the facts here. In that case, the opening of the account was admitted. The dispute was over the utilization or authorization of trading of the account. The court rejected the issue of the allegation of forgery as it was not even pleaded but merely put to the plaintiff's witness. This is quite different from the present case where the issue and facts have been pleaded. Apart from para 4 of the defence alluded to earlier the defendant alleged he is a victim of a 'skim penipuan' or cheating scheme.

[4] I am of the view that paras 4 and 6 of the defence have pleaded sufficient material particulars as required under O