JUDGMENTBY: ABDUL MALIK ISHAK J

The appellant, an advocate and solicitor with Messrs Gulam & Wong, filed his claim against the respondent in the magistrates court, Johor Bahru vide Summons Case No 72-4417 of 1993, and in his statement of claim, the appellant sought for the return of his RM20,000 which was advanced to the respondent as a personal loan and which was payable, as agreed by the respondent, on 30 June 1988. The respondent gave a cheque vide OCBC No 201486 dated 30 June 1988 to the appellant, which was dishonoured when the appellant presented for payment at the Malayan Banking Bhd, Johor Bahru on 20 July 1988. The appellant sought for the repayment of that personal loan on several occasions but to no avail and finally, on 26 January 1993, the appellant sent a notice of demand through Messrs Gulam & Wong. This was also ignored by the respondent.

The defence was that in 1983, both parties together with one Foon Teck Lee decided to embark on a moneylending business. It is agreed that the appellant acted as the financier whilst the respondent was responsible for scouting for the borrowers. It was alleged that towards this end, the appellant had issued five cheques in the following amounts in the respondents name:

(1) RM15,000 on 15 January 1985;

(2) RM20,000 on 8 March 1985;

(3) RM10,000 on 26 March 1985;

(4) RM10,000 on 3 May 1985; and

(5) RM5,000 on May 1985.

These sums were loaned to the respondents younger brother by the respondent himself at an interest rate of 4% per month. The respondents younger brother was said to be Yong Kok Chai. It was part and parcel of the defence that the appellant would obtain 75% of the monthly interest leviable on those loans to Yong Kok Chai whilst the respondent stood to gain 25%. Thus, each time Yong Kok Chai repaid the loan, the respondent remitted 75% of the monthly interest to the appellant until November 1985 when Yong Kok Chai refused to repay those loans. It was the respondents case that Yong Kok Chai had repaid a sum of RM15,000 to the appellant and this sum was transmitted to the appellant by the respondent vide OCBC cheque No 022545 dated 17 April 1985. It was the defence case that the appellant demanded the respondent to issue three cheques in the sums of RM20,000, RM15,000 and RM10,000 in the appellants favour as security for the loans advanced to Yong Kok Chai. The respondent complied and issued cheques dated 10 June 1985, 30 July 1985 and 2 September 1985 for those amounts. Replacement cheques for the same amounts were issued by the respondent on the request of the appellant and these replacement cheques were dated 16, 26 and 30 December 1985. On three other occasions, the respondent issued replacement cheques for those sums as demanded by the appellant. Basically, the defence was a denial of the repayment of the personal loan by 30 June 1988. It was alleged that the respondent acted, at all material times, as the appellants agent in the moneylending transaction. It was also alleged that the appellant as a moneylender had carried out a moneylending business without a licence. Finally, the defence relied on the Limitation Act 1953 and alleged that the cause of action was time-barred.

Upon sight of the statement of defence, the appellant wasted no time and applied to the Magistrates Court, Johor Bahru, for summary judgment against the respondent under O 26A of the Subordinate Courts Rules 1980 (the SCR). In his affidavit in support of the application affirmed on 29 January 1994, the appellant deposed that on the request of the respondent, a sum of RM20,000 was advanced by way of a personal loan to the respondent by the appellant. It was deposed that the respondent promised to repay the personal loan by 30 June 1988, and towards this end, the respondent gave the appellant by way of an OCBC cheque No 201486 dated 30 June 1988 for the amount. But on 20 July 1988, when the appellant presented the cheque for payment, it was dishonoured

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