JUDGMENTBY: THOMSON CJ, HILL JA, GOOD JA

THOMSON CJ The plaintiff in this case is a landowner residing in Kuala Lumpur and the defendants are a limited liability company carrying on the business of mining.

On 20th June, 1952, the parties executed an agreement in writing. That agreement purported to be for the hiring by the plaintiff to the defendants of certain specified items of mining machinery. The hiring was to be for a period of twelve months. Rent was payable at the rate of $ 2,500 a month payable monthly in arrear and there was provision for the payment of interest on rent not paid on the due date. There was provision for the owner to retake possession of the machinery in the event of non-payment of rent or breach of other provisions of the agreement.

On 30th June, 1954, the plaintiff commenced proceedings against the defendants in Civil Suit No. 272 of 1954. The plaint related that the plaintiff was a landowner and that by the agreement of 20th June, 1952, he had let certain machinery on hire to the defendants for a term of twelve months at a rent of $ 2,500 a month. That agreement had been continued after the expiration of twelve months and there was now owing under it a sum of about$ 23,400 for arrears of rent and interest thereon which sum was claimed.

These proceedings were commenced by a plaint marked "SUMMARY PROCEDURE" issued under section 459 of the Civil Procedure Code which was then in force. The defendants made no attempt to obtain leave to defend and on 3rd November, 1954, judgment was entered in favour of the plaintiff in terms of the prayer in the plaint for $ 23,400 and interest from the date of judgment and costs.

On 15th May, 1956, the plaintiff commenced another suit (No. 178 of 1956) against the defendants. The plaint was issued under the Civil Procedure Code which was still in force (it remained in force until 31st March, 1958) but was not marked "SUMMARY PROCEDURE". In it the plaintiff referred to the written agreement of 20th June, 1952. He went on to aver that on the expiration of the period of twelve months for which that agreement endured the defendants continued hiring the machinery on the terms and conditions set out in the agreement. In May, 1955, by arrangement with the defendants the plaintiff took back two items of the machinery and the parties came to a fresh agreement, apparently oral, by which the hiring of the remaining machinery was to continue on the terms and conditions of the agreement of 20th June, 1952, subject to certain variations, the only one of these which is of importance being that the rent should be $ 2,000 instead of$ 2,500 a month. The rent was not paid and on 25th November, 1955, the plaintiff determined the hiring as from 19th December and demanded the return of the machinery and the amount of rent owing. The defendants failed to comply and accordingly the plaintiff sued for arrears of rent and an order for possession of the machinery.

The defendants filed a defence which alleged inter alia that the plaintiff was at all material times a moneylender. In brief, it was said that the agreement of 20th June, 1952, the execution of which was admitted, did not by itself represent the true arrangement made at that time between the parties. It was to be read with another agreement of the same date whereby the defendants purported to sell the machinery in question to the plaintiff. The two agreements were to be read together and formed part of a transaction whose object was to make the machinery security for a loan and the agreement of 20th June was in effect a bill of sale which, not being in the statutory form and not being registered under the Bills of Sale Enactment, was void. The alleged charges for hire were in truth charges for interest on money lent and the agreement being nothing more than part of a security connected with a moneylending transaction was void by reason of the provisions of the Moneylenders Ordinance, 1951, and was also void as an unregistered bil

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