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FEDERAL COURT JOHOR BAHRU
PERNAS TRADING SDN BHD – Appellant
Versus
PERSATUAN PELADANG BAKTI MELAKA – Respondent
[Civil Appeal No: 58 Of 1978]
[1] In this case the appellants sued the respondents for a sum of $22,997.76 being the balance of the price of chemicals and fertilisers sold and delivered by the appellants to the respondents. In their defence, the respondents denied liability and went on to claim that it was made known to the appellants at the time of the order that the ultimate buyer was Syahazam Sdn Bhd.; in other words the defendants claimed that in the purchase of these goods they were agents for Syahazam Sdn Bhd.
[2] The appellants took out summons-in-chambers under O 14 applying for leave to sign final judgment against the respondents on the ground that the respondents' defence "is sham, vexatious and is merely to delay normal proceedings". The summons came before the Senior Assistant Registrar who dismissed it, and on appeal against the Registrar's decision, Mr Justice Datuk Syed Othman dismissed the appellants' appeal, and hence the appellants appeal further to the Federal Court.
[3] The appellants' case is founded on the sales invoice dated July 26, 1976, stating that the goods in question were sold to the respondents (Persatuan Peladang Bakti Melaka, 132, Jalan Hang Tuah, Melaka), and on the delivery note of the same date showing that the goods were received by the respondents whose rubber stamp was impressed on the line entitled "Tanda Tangan Penerima Dan Chop Perniagaan". Zainab binti Tamby who signed the delivery note on behalf of the respondents in her affidavit sworn on December 21, 1977, admitted ordering the goods but denied that she did so on behalf of the respondent. She claimed that the goods were in fact "ordered for and on behalf of and on account of Syahazam Sdn Bhd.". Paragraph 5 of her affidavit says:
"... the goods referred to in the statement of claim were ordered by me, not on the association's behalf, but for and on behalf and on account of the Syahazam Sdn Bhd I now produce a copy of a letter from the said Syahazam Sdn Bhd (marked "2 T1") dated October 14, 1977, admitting liability in the plaintiff's claim."
[4] According to Mohamed Noordin bin Haji Daud who swore an affidavit on behalf of the appellants on November 8, 1977, Syahazam Sdn Bhd had a separate account with the appellants and were in fact an adjudged debtor to the appellants for the sum of $19,669.42 in Johore Civil Suit No:383 of 1977. The letter purports to be written by Syahazam Sdn Bhd to the appellants, the material part of which states:
"Barang-barang ini telah dirancangkan olih Incik Ridzuan bin Hj. Hussain iaitu wakil tuan di-Melaka supaya Akaun akaun tersebut di-masokkan kedalam kira-kira Pertubuhan Peladang Bakti. Ini adalah di-sebabkan credit limit kami pada masa itu telah melebehi dari apa yang dihadkan. Ini adalah salah satu cara bagi Incik Ridzuan bin Hj. Hussain untuk meninggikan jualan barang-barang Kimia di-Pernas Trading dan juga untuk melepaskan dirinya dari menjual barang berlebehan dengan Syahazam Sdn Bhd."
[5] It is interesting to note that this letter was written not at the time when goods were ordered, but some three weeks after the respondents had been sued; the date of the writ being September 24, 1977 and the date of the letter October 14, 1977. Adverting to para 5 of the affidavit of Zainab binti Tamby quoted earlier, it is clear that she made two propositions:
(1) -she was not ordering the goods on behalf of the respondents, but
(2) she was ordering them for and on behalf of Syahazam.
[6] As regards the first proposition that the goods were not ordered by her on behalf of the respondents, the sales invoice and the delivery note dated July 26, 1976, clearly contradict her. There is however, no denial by the respondents that the goods were ordered by them and delivered to them. There is also no dispute as to the genuineness of the sales invoice and the delivery note on which the appellants' case is founded. In our view, the respondents' contention that goods were not ordered on their behalf must fail in view of the sales in
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