I. APPEAL

This is an appeal by the appellant/defendant ("the defendant") against the decision of the learned sessions court judge who on 19 December 2002 entered summary judgment against the defendant under O.26A of the Subordinate Courts Rules 1980.

II. FACTS OF THE CASE

The facts herein are simple and straightforward, as the defendant was the drawer of six cheques dated between 28 June 1999 and 30 January 2000 in favour of the plaintiff who presented the same for payment on the respective due dates but all payments thereof were stopped by the defendant.

3

Notices of demand were issued by the plaintiffs solicitors to the defendant on 15 December 1999 for RM75,000 and on 13 March 2000 for RM24,351.26. The defendant has failed, refused and neglected to pay these demanded sums.

The statement of defence para 3 referred to a letter of award dated 29 October 1997 between Industri Mayatec Sdn. Bhd. and Wang Plumbering & Electric Co. and averred that the defendant has requested the plaintiff to return the defendant's cheques as payment should be made by Industri Mayatec Sdn. Bhd., but that the plaintiff has failed and neglected to do so, as a result of which the defendant has given the "stop payment" instruction to his bank.

Paras 4 and 5 contain bare denials of the sum of RM75,000 and RM24,351.26 respectively.

4

No other allegation of fact or defence was raised by the defendant.

III. COUNSEL'S SUBMISSIONS AND DECISION OF THE COURT

En. Sahrihan bin Jani, learned counsel for the defendant, raised the so-called triable issues based on failure of consideration and the defendant's request to the plaintiff to return the cheques to the defendant.

In addition, the defendant also contended that there was delay on the part of the plaintiff in making the application for summary judgment.

The essence of the submission by Cik Wee Ai Yen, learned counsel for the plaintiff, is that there is

5

no triable issue nor was there any delay on the part of the plaintiff in the application for summary judgment. She cited, inter alia, s.30 of the Bills of Exchange Act 1949 in support thereof.

In my judgment, it is a fundamental principle of civil litigation that parties are bound by their own pleadings : Janagi v Ong Boon Kiat [1971] 2 MLJ 196 HC; Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152.

A careful examination of the defence as adumbrated above clearly shows that failure of consideration has never been pleaded at all and I must decline to decide on this unpleaded issue.

In The Standard Chartered Bank v. Yong Chan [1974] 1 MLJ 157, the trial Judge had

6

decided on an issue i.e. breach of contract which was not raised in the pleadings which was based on libel. The judgment was set aside by the Federal Court and a new trial ordered.

However, even by stretching my imagination to the fullest extent and to construe the said para 3 of the statement of defence as including the issue of "failure of consideration", I am not persuaded that it is a triable issue, in the light of s.30 of the Bills of Exchange Act 1949 which reads as follows :

"30. Presumption of value and good faith.

(i) Every party whose signature appears on a bill is prima fade deemed to have become a party thereto for value.

(ii) Every holder of a bill is prima fade deemed to be a holder in due course : but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill."

7

The defendant's signature appears on all the aforesaid six cheques and so under s.30(l), he is prima facie deemed to have become a party thereto for value. The plaintiff being a holder of the said cheques is under s.30(2) prima facie deemed to be a holder in due course : see also Ng Choh Leng v. Loh Che Kwet [2002] 1 CLJ 31 at pp. 33