The court upheld the judgment in default, finding proper service of the writ and no valid defense by the defendant for breach of the Sale and Purchase Agreement.

JUDGMENT

Nor Izzati Zakaria M:

(Enclosure 11)

Introduction

[1] In this case, the plaintiff filed a civil action against the defendant claiming for a breach of the Sale and Purchase Agreement dated 28 July 2022. Plaintiff then obtained a judgment in default (hereinafter referred as "JID") against the defendant by the failure of the defendant to enter appearance within the stipulated time. The defendant vide encl 11 then filed an application strike out the judgment in default entered against him pursuant to O 13 r 8 of the Rules of 2012.

Brief Facts

[2] The plaintiff is an individual having his registered address at 28, Jalan Bukit Setongkol Jaya 108, 25200 Kuantan, Pahang.

[3] The defendant is an individual having his registered address at 2707, Taman Sri Taja, Jalan Jabur Kubur, 24000 Kemaman, Terengganu Darul Iman.

[4] By the Sale and Purchase Agreement dated 28 July 2022 entered into between the plaintiff and the defendant, the plaintiff had sold a motor lorry with a registration number of WQD 9596 and a motor trailer with a registration number of T/N 4040 the defendant at a purchase price of RM120,000.00 and had deposited RM50,000.00 as an advanced payment.

[5] The plaintiff claimed that the defendant had fallen into default on the payment within the stipulated period, and that being the case, the plaintiff thereafter filed encl 1 against the defendant to obtain an order from the Court and had obtained a judgment in default.

[6] The defendant on the other side, had filed an application to strike out the judgment in default entered against him pursuant to O 13 r 8 of the Rules of 2012.

The Defendant's Application For Striking Out (Enclosure 11)

[7] The defendant applied an application to strike out the judgment in default pursuant to O 13 r 8 the ROC 2012. The provision of O 13 r 8 the 2012 is reproduced hereunder:

"8. Setting aside judgment (O 13 r 8)

The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order."

[8] The defendant's application was supported by an affidavit (vide encl 12) deposed by Kamalanathan A/L Krishnasamy who after verifying the facts of the defendant's application stated that he verily believed that the defendant had defence with merits ('terdapat pembelaan bermerit', Encl 12, para 47).

The Defendant's Arguments

[9] The defendant averred in the written submission (Enclosure 19) that the judgment that has been entered is as a result of some impropriety which is considered so serious as to render the proceedings a nullity. The defendant further averred that judgment in default cannot be entered for based on the O 13 r 3 ROC 2012 that stated as follows:

"3. Claim in detinue (O 13 r 3)

Where a writ is endorsed with a claim against a defendant relating to the detention of movable property only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, at his option enter either:

(a) interlocutory judgment against the defendant for the delivery of the property or their value to be assessed and costs; or

(b) interlocutory judgment for the value of the property to be assessed and costs,

and proceed with the action against the other defendants, if any."

The Plaintiff's Arguments

[10] On the other side, the plaintiff submitted that the said writ was perfectly served to the defendant by way of AR Registered Card and the judgment was regularly obtained. To rebut this, plaintiff further asserted the judgment was regular has referred to O 13 r 1 of the ROC 2012 that stated as follows:

"1. Claim for liquidated demand (O 13 r 1)

(1) Where a writ is endorsed with a claim against a defendant for a liquidated demand only, then, if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any.

(2) A c