[1] This is an appeal against the decision of the learned magistrate who on 14 November 2014 dismissed the plaintiff's claim on the ground that it was void and unenforceable for breach of the Moneylenders Act 1951 ("Moneylenders Act").

[2] A principal issue raised in this appeal is whether the magistrate upon finding that the transaction was void, ought to have made an order for restitution under s 66 of the Contracts Act 1950 ("Contracts Act") .

Brief Facts

[3] I shall restrict the recital of facts to the barest minimum necessary to identify the points at issue. The defendant applied for a loan from the plaintiff. The plaintiff and the defendant then entered into a moneylending agreement ("moneylending agreement") dated 6 November 2013. The form of the agreement was in accordance with sch J of the Moneylenders (Control and Licensing) Regulations 2003 under the Moneylenders Act 1951 ("Moneylenders Act"). The signatures of both plaintiff and the defendant in the agreement was attested by one Nasaruddin bin Ahmad, a Commissioner for Oaths.

[4] The agreement stated, inter alia, that the defendant had taken a loan of RM25,000.00 and that interest at 18% was payable on the loan and the same was to be repaid by 60 monthly instalments of RM607.00. It further stated that if the defendant failed to repay any sum that has become due for more than 28 days, the plaintiff was entitled to terminate the moneylending agreement and seek repayment.

[5] On 27 February 2014, the plaintiff through his solicitors sent a legal notice to the defendant informing him that no instalments had been paid under the moneylending agreement and that if the three outstanding instalments of RM1,821.00 was not paid within 14 days, the moneylending agreement would be deemed terminated upon the expiry of the time given. The defendant failed to do so and the plaintiff commenced this action in the Ipoh Magistrate's Court in December 2014. It was pleaded in the statement of claim that the plaintiff was a licensed moneylender and was therefore entitled to recover the principal sum and interest in accordance with the moneylending agreement.

[6] In his defence, the defendant specifically denied knowledge of the fact that the plaintiff was a licensed moneylender and disputed the validity of the moneylending agreement. He denied he was given a loan of RM25,000.00 and alleged the that he had only taken a sum of RM1,500.00 from the plaintiff in June 2011 and after the same was repaid, he took a further RM1,500.00 in early 2012. He signed a blank sheet at the request of the plaintiff at this time. He further alleged that he was not given a stamped copy of the money lending agreement as mandated by s 16 of the Moneylenders Act.

[7] Both the plaintiff and the defendant gave evidence at the trial in support of their respective cases. The plaintiff called the Commissioner for Oaths who attested the signatures on the moneylending agreement as his witness, whilst the defendant did not call any. At the conclusion of the trial, the magistrate found that the plaintiff was a licensed moneylender and entitled to sue on the agreement, but dismissed the claim on the ground that the strict requirement in s 16 of the Moneylenders Act was not fulfilled. From that decision the plaintiff appealed to this Court.

Issues On Appeal

[8] There are essentially four issues in this appeal:

(i) Whether the plaintiff is a licensed moneylender?;

(ii) if no, whether the moneylending agreement between the plaintiff and defendant is valid?;

(iii) if yes, whether there was compliance with s 16 and a stamped copy of the said moneylending agreement was given to