Low Hop Bing J:

Appeal

This is an appeal by the appellant plaintiff ("the plaintiff") against the decision of the learned magistrate who had on 8 June 2001 dismissed the plaintiff's amended claim for the balance sum of RM24,397.81 with costs.

Agreed Facts

At the hearing before the learned magistrate, certain facts were agreed by the parties. It was agreed that the plaintiff is a licensed finance company having its registered office in Kuala Lumpur. One of its branches is in Melaka, with which the first defendant had executed a hire purchase agreement No. 2-0401-74 1297-4D dated 13 January 1997 ("the agreement") wherein the plaintiff has agreed to finance the defendant in enabling the first defendant to hire and purchase a unit of Isuzu NHR 55E (SV) bearing registration number MAJ 682, engine number 310044 and chassis number JAANHR 55EP 7112329. The first defendant paid a sum of RM9,820.76 upon execution of the agreement towards the account of the purchase consideration of RM82,240.76 and the balance thereof was to be paid with effect from 15 February 1997 by way of 71 instalments at RM1,006 per month and a final instalment of RM994. The second defendant executed a guarantee on the same date to guarantee the aforesaid instalment payments by the plaintiff.

Evidence Before The Learned Magistrate

In addition to the aforesaid agreed facts, evidence was adduced for the plaintiff through SP1 ie, one Zulkifli bin Atan, a credit officer of the plaintiff since 4 May 1979. He had knowledge of the transaction between the plaintiff and the defendants. SP1 testified that the vehicle is a heavy vehicle which is not subject to the Hire-Purchase Act 1967 ("the Act"). After effecting payment of four instalments from February until May 1997, the first defendant defaulted from June until September 1997 which resulted in the plaintiff bringing the action against the defendants in the court below for the balance sum of RM24,397.81, after deducting all previous payments and the proceeds of sale realised after repossession thereof by the plaintiff.

The defendants elected not to give evidence but instead submitted that the plaintiff has failed to prove its case against the defendants, on the sole ground that the agreement is subject to the Act as the vehicle is a motor lorry prescribed in the First Schedule to the Act, in which case it was argued for the defendants that the plaintiff must comply with the mandatory provisions of s. 16(6) of the Act pertaining to the service of the notice in the Fifth Schedule thereto.

The defendants' submission on this ground was upheld by the learned magistrate who held that the plaintiff's evidence that the lorry was a heavy vehicle was not sufficient in the absence of evidence in support thereof.

Submission For Plaintiff

Cik Leong Ting Ting, learned counsel for the plaintiff, by way of written submission stressed in essence that the learned magistrate erred in holding that the burden of proving that the maximum permissible laden weight of the lorry exceeds 2540 kg. is on the plaintiff and also erred in concluding that the plaintiff has failed to discharge this burden.

Contention For Defendants

Learned counsel, the late En. Michael Tan Lip Yip, assisted by En. Yong Chen Lim, in their written submission filed prior thereto, contended for the defendants that the learned magistrate did not occasion any error of law or fact in dismissing the plaintiff's claim, adding that the parties are bound by their pleadings. It was stressed for the defendants that the parties have clearly intended the agreement to be subject to the Act as "the intitulement, formation and contents of the agreement were in conformity with all the requirements of PART II of the Act", citing MBf Finance Bhd v. Alluwi bin Salleh & Anor[2002] 2 CLJ 133 (HC) in support thereof.

Defendants' learned counsel also relied on Kesang Leasing Sdn Bhd v. Mohd Yusof bin Ismail & Anor[1989] 2 CLJ 1216; [1989] 1 CLJ (Rep) 671 (HC) in submitting that even if t