JUDGMENT

Abdul Malik Ishak J:

Introduction

[1] The plaintiff appealed to the judge in chambers against the decision of the learned senior assistant registrar who struck out the plaintiff's claim. That appeal can be seen in encl. 149.

The Salient Facts

[2] The plaintiff was the sole proprietor of a company known as the "West Malaysia Frozen Food Company" and that company was engaged in the business of exporting frozen seafood. At all material times, the plaintiff was a customer of the defendant - Hock Hua Bank Berhad ("the bank").

[3] In 1974, the plaintiff sold and shipped consignments of frozen prawns to one Mathew (since deceased) in England. Thirteen (13) invoices were raised by the plaintiff. The plaintiff had drawn up thirteen (13) bills of exchange against the said Mathew requiring him to pay to the order of the bank as the plaintiff's bankers the amount of the said bills which had a face value of RM1,005,700.22 after conversion from Sterling into Malaysian Ringgit.

[4] The thirteen (13) bills of exchange were given to the bank by the plaintiff for collection. The bank credited the plaintiff's account with the face value of the bills and forwarded the said bills to its correspondent bank in England for collection.

[5] It was not in dispute that in respect of two of the bills of exchange which were originally marked as "At sight D/P (Documents against Payment)", the plaintiff had given the bank instructions to let the drawee (Mathew) to take delivery of the prawns against the trust receipts and related letters of undertaking instead of against payment.

[6] It was also not in dispute that all the other eleven (11) bills of exchange were accepted by Mathew who subsequently failed to honour the said bills by making the necessary payments thereto. The bank accordingly debited the plaintiff's account with the amounts previously debited together with some other bank charges incurred by the bank.

[7] The bank debited the plaintiff's account with a total sum of RM1,083,171.56 on various occasions from 20 August 1974 to 31 October 1975. As a result of this debiting, the plaintiff's account was overdrawn and the bank requested for security to be provided by the plaintiff. The plaintiff then procured two charges to be executed in favour of the bank in respect of two pieces of properties owned by the plaintiff's wife.

[8] In 1980, the plaintiff commenced Suit No: C 1073 of 1980 in the Kuala Lumpur High Court against the bank for moneys had and received alleging that the bank had acted wrongfully and illegally in debiting his account with the sum of RM1,083,171.56 in 1974 and in 1975. Shortly put, the plaintiff's contention in that suit was that the bank had unconditionally purchased the thirteen (13) bills of exchange and the amounts credited by the bank into the plaintiff's account were the purchase price of the said bills of exchange and that there can be no question of any reimbursement when the bills of exchange were subsequently dishonoured by Mathew. The bank, on the other hand, contended that the moneys credited into the plaintiff's account were advances made by the bank which were refundable and payable by the plaintiff in the event the drawee (Mathew) did not honour the thirteen (13) bills of exchange.

[9] The bank in turn sued the plaintiff vide Suit No: C 1279 of 1985 in the Kuala Lumpur High Court for moneys due and owing by the plaintiff to the bank in respect of banking facilities granted by the bank to the plaintiff.

[10] The two actions - one by the plaintiff and the other by the defendant, were consolidated and heard on various dates over a period of some two years by VC George J (later JCA).

[11] His Lordship VC George J (later JCA) delivered his judgment on 26 May 1994 and a copy of that judgment was exhibited as an exhibit to Ko Wan Khion's affidavit that was affirmed on behalf of the bank on 21 November 1997 (see exh. "KWK4" annexed as an exhibit to encl. 7). In his judgment, the learned judge made, inter alia , the following