The defendant (appellant) filed an appeal against the decision of the learned Senior Assistant Registrar allowing the plaintiff's (respondent) application for summary judgment under Order 14 of the Rules of the High Court 1980. In the application before the learned Senior Assistant Registrar the plaintiff claimed for the sum of RM 369,040.39 due and owing from the defendant being the cost of goods supplied to the defendant arising out of a contract dated 26.1.99. Under the said contract, the plaintiff undertook to supply manures to the defendant for the period between 28.1.99 and 30.12.99. The total value of the contract was RM 742,992.51. The plaintiff claimed that as at 31.1.2000 the defendant has failed to settle the balance sum of RM 369,040.39 which is the amount claimed in the writ of summons filed against the defendant. It is further contended by the plaintiff that by a letter dated 1.12.99, the defendant has acknowledged that as of that date the amount owed to the plaintiff is RM 360,423.86 as exhibited in exhibit "VCK 3 " of the plaintiff's affidavit in support of

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the Order 14 application. It was further contended by the plaintiff that the said letter also contain an undertaking by the defendant to pay RM 20,000,00 monthly until they improve their cashflow position. The plaintiff submits that there is an admission of the claim by the defendant and that they have not raised any defence to the claim and have also failed to raise any triable issue in the application for summary judgment.

The defendant took the stand that there are triable issues to be determined and as such summary judgment is inappropriate. Three affidavits has been filed by the defendant and five affidavits by the plaintiff. A perusal of the affidavits filed by the parties indicates that the defendant has admitted that as at 1.12.99 it was indebted to the plaintiff in the sum of RM 360,423.86 and that a proposal was made to settle the said debt by a RM 20,000.00 monthly installment until its cashflow position improves. The defendant also never denies the amount claimed by the plaintiff as stated in the writ of summons filed against them.

It is trite that an appeal against an Order 14 application is a rehearing (Koh Siak Poo v. Perkayuan OKS Sdn Bhd (1989) 3 MLJ 164) and this court in so hearing the appeal has to consider the affidavit evidence filed in support of the application and the affidavits in reply in order to determine whether or not there is a triable issue in the matter. The Court of Appeal has also reminded in Ng Hee Thoong & Anor v. Public Bank Bhd (1995) 1 MLJ 281 at page 289:

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" It is important to bear in mind that O.14 is a summary judgment procedure and not a summary trial procedure".

As I have stated earlier, no less than eight affidavits has been filed between the parties in the application, however after perusing them I am of the view that the defendant has not raised any bona fide triable issue. In Syn Lee & Co. Ltd. v Bank of China (1961) MLJ 87, Thomson CJ explained:

" With great respect it seems to me there may have been some slight misapprehension on the part of the assistant registrar and on the part of the trial judge as to the proper approach. It is not quite the same as the problem with which we are always being faced in the chancery side of the court of trying issues on affidavit evidence. In a case of the sort it is not a case of trying the issues on affidavit evidence, it is rather a question of deciding on affidavit evidence whether there is a moral improbability of a very high degree that the defendant can possibly succeed. On the other hand we have to remember that the order is there as much in the interests of the defendants as in the interests of plaintiffs. It is in the interest of plaintiffs, that they should be able to get prompt judgment when there is no real defence. But on the other hand, it is in the interest of defendants in such cases that plaintiffs should be able to get judgments not only e