Vincent Ng J:

Factual Background

[1] The facts of the case could shortly be stated thus. the plaintiff, a commercial banking institution instituted this suit against the defendants for the recovery of monies due under credit facilities given by the former to the 2nd Defendant, which was guaranteed by the 1st Defendant. To secure the repayment of the facilities given to the 2nd Defendant a charge was registered in favour of the plaintiff over the 1st Defendant's land. The 2nd Defendant defaulted and failed to make repayment on the facilities. On 27 February 2001 the plaintiff's counsel sent letter of demand to both Defendants claiming a sum of RM2,904,144.61 as at 19 February 2001. the defendants did not respond to the said letters of demand. Pursuant to the terms of the loan facilities and guarantee agreement, the plaintiff disposed of the shares that were deposited with the plaintiff by the 2nd Defendant as security. the defendants were notified of this share disposal by a letter to them dated 14 July 2001 from the plaintiff's solicitors. However, the amount recovered on the share disposal fell short of the amount due and payable to the plaintiff, and the amount due, owing and payable to the plaintiff together with interest as at 28 November 2001 was found to be RM3,160,949.19, which amount was to bear additional interest accruing on the default installments at the agreed rate of 2.5% per annum above the base landing rate calculated on monthly basis from 29 November 2001 till the date of full settlement. On 1 April 2003, the plaintiff filed notice of discontinuance of action against the 2nd Defendant with liberty to file afresh. the plaintiff proceeded against the 1st Defendant by filing an application for summary Judgment under O 14 of the Rules of the High 1980 (RHC) which was on 16 December 2004 dismissed by the learned SAR, hence this appeal before me.

The Law On (O 14) Applications For Summary Judgment

(a) Case Authorities

[2] Although I could locate old or very old English case authorities on this topic, due to the demands of the present day economic exigencies being vastly different from those olden times, I shall, on commercial matters, refrain from citing English judicial pronouncements that are essentially based on the particular commercial circumstances and ample availability of judicial time that prevailed during those ancient times. I shall here set out the principal authorities on summary Judgments which I consider citable.

[3] Mohamed Azmi SCJ, delivering the majority landmark Judgment of the Supreme Court in Bank Negara v. Mohd Ismail & Ors, [1992] 1 MLJ 400 (Bank Negara) held:

In our view, basic to the application of all those legal propositions, is the requirement under O 14 for the Court to be satisfied on affidavit evidence that the defence has not only raised an issue but also that the said issue is triable. The determination of whether an issue is or is not triable must necessarily depend on the facts or the law arising from each case as disclosed in the affidavit evidence before the Court. On the treatment of conflict of evidence on affidavits, Lord Diplock speaking in the Privy Council on Eng Mee Yong & Ors v. Letchumanan had this to say at p 217:

Although in the normal way it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.

Although Lord Diplock was dealing with an application for removal of caveat in that particular case, we are of the view that the above principle of law is relevant and applicable in all cases where a Judge has to decide a case or matter on affidavit evidence.

Under an O 14 application, the duty of a Judge do