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2011 MarsdenLR 3932
HIGH COURT SANDAKAN
AMBANK (M) BERHAD – Appellant
Versus
SANDAKAN PLYWOOD & VENEERS CO SDN BHD & ANOTHER CASE – Respondent
[Css 22-16 Of 2008 Consolidated With Civil Suit No. S-22-40 Of 2008]
Claims for debts must not exceed statutory limitation periods; inadequate evidence renders a plaintiff's claim actionable.
Headnote:(A) Sabah Limitation Ordinance - Articles 41, 65, and 95 - Time-barred claims - Plaintiff's claims against the defendants were dismissed on grounds of being time-barred, with claims exceeding limitation periods prescribed under applicable articles - Proper evidence not adduced to prove claims. (Paras 1-2, 12-13, 54-56)
(B) Evidence Act 1950 - Section 90A - Admissibility of documents - Plaintiff's statement of account deemed inadmissible due to lack of primary evidence and invalid certificate; oral testimony hence was ruled as hearsay. (Paras 58-64)
Facts of the case:
The plaintiff's banking facilities to the defendants led to the suits for recovering outstanding balances. The defendants claimed time-barred and challenged the sum owed. (Paras 1-2)
Findings of Court:
Dismissed claims against defendants due to time-barring, and inadequate proof of debts; the counterclaim of the second defendant was also dismissed. (Paras 138-139)
Issues: Time-bar on claim, adequacy of proof provided by plaintiff, validity of counterclaim. (Paras 3)
Ratio Decidendi: Court ruled that absent evidence proving the debt's validity, the claims were not actionable; claims cannot outlast limitation periods. (Paras 12-13)
Result: Plaintiff's claims dismissed, counterclaim dismissed.
| Table of Content |
|---|
| 1. dismissal of claims due to time-bar (Para 1 , 2) |
| 2. secured provisions under limitations laws (Para 3 , 4 , 5 , 6) |
| 3. court's reasoning on time-bar issues (Para 7 , 8) |
| 4. factual basis for plaintiff's claims (Para 9 , 10 , 11) |
GROUNDS OF DECISION
AGREED FACTS FOR TRIAL
[1] The Plaintiff was formerly known as MBf Finance Berhad, which was subsequently reconstituted and renamed as AmFinance Berhad and presently as Ambank (M) Berhad (8515-D). All rights and liabilities of MBF Finance Berhad have been fully vested in Ambank (M) Berhad, the present Plaintiff.
[2] The Plaintiff hall granted the following banking facilities to the 1st Defendant:-
[a] Term Loan Facility of RM1,340,000.00, governed by the Letter of Offer dated 26/7/1996 and the Loan Agreement dated 21/8/1996.
[b] Flexline Facility of RM5,000,000.00 governed by the Letter of Offer dated 6/8/1996 and the Loan Agreement dated 21/8/1996.
[3] As one of the securities for each of the said Facilities, the 2nd Defendant has executed 2 documents, both described as "Joint And Several Letter of Guarantee" and dated 21/8/1996, to secure each of the said Facilities respectively.
[4] The 1st Defendant had also charged certain lands to the Plaintiff as part of the securities for each of the said Facilities.
[5] The Plaintiff has on 9/9/1999 initiated foreclosure actions against the 1st Defendant's Lands charged to the Plaintiff to recover the amounts secured under the said Facilities by issuing a letter of demand and then subsequently the Notice of Chargee In Case of Default dated 21/9/1999 upon the 1st Defendant's failure to comply with the said letter of demand.
[6] Special Administrators were appointed over the 1st Defendant on 15/12/1999 under the Pengurusan Danaharta Nasional Berhad Act 1998 .
[7] The Plaintiff was informed by a letter dated 24/11/2004 from Pengurusan Danaharta Nasional Berhad [forwarded by the letter dated 25/11/2004 from the Provisional Liquidator, Datuk Tan Kim Leong, namely BDO Capital Consultants Sdn Bhd] that they have no objections to the Plaintiff's intention to foreclose on the Defendant's lands charged to the Plaintiff.
[8] The 2nd Defendant has received the letter of demand from the Plaintiff's solicitors, Messrs Peter Lo., to demand for the said shortfall.
[9] Special Administrators ware appointed over the 1st Defendant on 15/12/1999 under Section 29 (1) of the Pengurusan Danaharta Nasional Berhad Act 1998 . The moratorium under Section 41 was extended to 12/12/2003 when the Special Administrators were discharged.
[10] Immediately after the discharge of the Special Administrators, a Provisional Liquidator was appointed over the 1st Defendant.
[11] The aforesaid appointment of the Provisional Liquidator over the 1st Defendant, was pursuant to a Workout Proposal submitted by the said Special Administrators appointed under the Pengurusan Danaharta Nasional Berhad 1998 .
BACKGROUND
[1] This is a claim by the Plaintiff bank against the 2nd Defendant in Suit No: S22-16-2008 (hereinafter referred to as "the First Suit") and against the Defendant in Suit No: S22-40-2008 (hereinafter referred to as "the Second Suit") for the outstanding balance pursuant to two loan agreements, the fixed loan and the flexi loan facility.
[2] The Defendants' defences in both suits in essence are as follows:-
[i] That the amount claimed by the Plaintiff is disputed and is incorrect;
[ii] The Plaintiff's claim is time-barred;
[iii] The Letters of Guarantee executed was not a guarantee but an indemnity;
[iv] The Plaintiff is not entitle J to interest which is more than three years;
[v] The Defendants are discharged as guarantors.
[3] The 2nd Defendant also have a counterclaim against the Plaintiff for inter alia loss and damage suffered by the 2nd Defendant in Suit No. S-22-16 of 2008.
ISSUES
I find that there are 3 issues, which merited consideration namely:
[1] Whether the Plaintiff's claim is time-barred; and
[2] Whether the Plaintiff has proved its claim against the Defendants.
[3]
