Abu Mansor JCA

(delivering the judgment of the court): This is a notice of motion (encl 11A) of the applicant dated 2 November 1995, praying for an order that Encik BS Sidhu, the respondent herein (this motion) be committed to prison for disobeying the order of this court given on 25 July 1995, directing Encik Sidhu who was representing the respondent in the appeal before that court to forthwith refund all the monies which had been paid by the solicitors for the appellant on account of the fact that the appellant had succeeded in his appeal, and that he was allowed to defend his case unconditionally. After hearing arguments, we dismissed this motion with costs, and we now give our reasons.

It may be necessary to mention that, before we proceeded with this motion, we had dealt summarily with a separate motion (encl 11B) filed by Encik Sidhu, the respondent in this motion, praying for an order that the ex parte order granting leave to issue this motion for committal be set aside. At our instance, Encik Yusuf Khan, counsel for Encik Sidhu, was told by us that we would not be able to entertain his application, as the order for leave was obtained on an ex parte application. Encik Yusuf Khan did not insist on proceeding with his application to set aside the ex parte order granting leave to the applicant to apply for the committal of Encik BS Sidhu, and we dismissed his application.

We then proceeded to hear the applicant's main motion.

Encik Manjit Singh, counsel for the applicant, took us through the facts of this case as appeared in the affidavit of Mohd Khalid bin Abu Hassan, pengurus besar of the applicant. He referred us to Mahkamah Rayuan Civil Appeal No 02–155–1995 which arose from the decision of the High Court at Shah Alam, Selangor in Guaman Serial No 23–91–1994 ('the said suit') giving summary judgment under O 14 of the Rules of the High Court 1980 ('the RHC') against the appellant on 9 February 1995. What is necessary for us to mention, as stated above in this appeal, before this court on 25 July 1995, was that, the court allowed the appellant's appeal and made the order already referred to above.

Encik Manjit Singh contended that following that order dated 25 July 1995, he applied for the return of the sum ordered amounting to RM730,859.71, the sum which was deposited by the applicant's counsel into the account of the respondent. Counsel for the applicant said that he eventually had to write two letters, one on 25 July 1995, and the other on 31 July 1995, calling for the return of that sum. He submitted that the respondent herein wilfully refused or neglected to refund the sum ordered. The counsel for the applicant conceded that the order of the Court of Appeal on 25 July 1995 was not served on the respondent, but he contended that it was not necessary for the applicant's counsel to have done that because Encik Sidhu himself was present in court representing the respondent in that appeal, and was well aware of what this court's order was. He is an officer of the court and it was his duty to have obeyed the court's clear order. He prayed for the order asked for.

Encik Yusuf Khan in reply said, there was no deliberate refusal by the respondent to comply with the order of the court. There was also absence of any delay. In fact, the sum was paid to the applicant's counsel as per the terms of the order within 24 hours of the service of that order which took place on 13 October 1995 at 4.05pm, and the sum was in fact paid on 14 October 1995 at 12.35pm, a fact not disputed by the applicant.

As stated by Encik Manjit Singh at the commencement of his application, there was only one issue to be settled by this court. His complaint was the respondent's alleged disobedience to the order to pay from 25 July 1995 to 14 October 1995, despite the two letters requesting payment and the term 'forthwith' in the order meant, by way of definition, without delay or immediately. He submitted that a delay of more than two months from