Chang Min Tat FJ (delivering the judgment of the Court):

The respondent is a bank and in respect of an overdraft account granted to Eternal Graphie Reproduction Sdn. Bhd. (the Company) required and obtained four guarantors jointly and severally to guarantee the repayment of the money advanced on the overdraft. The four directors were also the directors of the Company but their guarantee was personal. At the relevant time the account stood at $251,091.64 inclusive of interest. The respondent made demand for the repayment of this overdraft sum from the guarantors and when they failed to make good the sum advanced, took out the writ in this action against all four guarantors for the repayment of this sum.

On 13 April 1979 the respondent made an O. 14 Rules of the High Court application against the present appellants. No action was taken against the other two guarantors, we believe, because they had been previously adjudicated bankrupts.

The appellants resisted the application by an affidavit in which one ground and one ground alone was advanced.They did not execute the guarantee. The signatures thereon were not theirs. The Senior Assistant Registrar allowed the application but her decision was reversed by the High Court which gave conditional leave to defend. The condition imposed was for the payment of the sum of $125,000 into the Court on or before a certain date and the defence was ordered to be filed within two weeks.

We pause here to suggest the great desirability where the Court gives leave to defend conditional on the payment into Court of a sum of money, of making a further order that upon failure to comply with the condition, the plaintiff applicant will be at liberty to sign final judgment. This further order will avoid the necessity for the plaintiff having to come to Court again to sign judgment for non-fulfillment of the condition upon which leave was given.

From the decision of the High Court, both the guarantors and the Bank appeal to this Court.

It is clear that the learned Judge allowed the appeal in part because from the documents which were documents executed in the ordinary course of business there are even to an untutored eye great variations in the signatures of the appellants and his doubt as to the genuineness of the appellant's signatures on the letter of guarantee was not resolved by the failure of the Bank official before whom the guarantee was executed to come forward to say that the guarantors personally appeared before him and in his presence did sign the document in question. His decision therefore to give leave to defend was, with respect, a rightful exercise of his discretion. In arriving at his decision, he was clearly acting under the powers conferred on him by s. 73 of the Evidence Act, 1950 and well might he do so when all he had to do in the application before him was to consider whether the point raised was sufficient to amount to a triable issue. But it was also very obvious in the specimens of their signatures provided by the appellants themselves in the documents signed by them which had nothing to do with the Bank, there are equally great variations. In these circumstances we consider that the learned Judge had sufficient and cogent reasons to doubt the genuineness of the defence and his decision to give conditional leave to defend was with respect the right one.

One salient fact that emerged at the hearing. It was before the lower Court but no point was taken on it. The overdraft had been secured by a legal charge on a piece of property by M/s. Ho Wai Seng Bhd. This charge constituted therefore the first and real security for the repayment of the loan and was a readily realisable security. The maximum limit of the security provided in the charge was $280,000, which would mean that in the opinion of the Bank the property was worth considerably more. In the time that had elapsed since the execution of the charge, properties in and around Kuala Lumpur have appreciated greatl