Enc. 26 is an application for summary judgment by the Plaintiffs against the 2nd and 3rd Defendants in respect of a debt due from the 1st Defendant. The claim against the 2nd Defendant is based on the guarantee executed by him on 12th July 2004. The claim against the 3rd Defendant is pursuant to a Standard Remisier's Agreement dated 10th December 2001. When the application came up for hearing on 23rd September 2009, the Plaintiff proceeded with the application against the 3rd Defendant only as the 2nd Defendant was already a bankrupt.

Counsel for the 3rd Defendant raised the following defenses as giving rise to a triable issue;

a) That the shares purchased by the 1st Defendant ought to have been sold within 3 days of default by the 1st Defendant before the Plaintiffs can seek to recover their loses arising from such default by him;

b) In the month of January 2007, there were 4 claims for interest and service charge amounting to RM 729.29. According to Counsel there was no explanation from the Plaintiff as to why the service charge was payable. Counsel contended that this facts was not disputed by the Plaintiff;

c) There is a statement in the affidavit of Mr. Edward Chin (Enc. 33) wherein reference is made to a decision discharging the 3rd Defendant from liability for the debt forming the subject matter of this claim.

I allowed the application for summary judgment and granted the Plaintiff leave to sign final judgment for the sum of RM 693,713.80 together with interest on the sum of RM 579,648.36 from 29th March 2007 to the date of payment. In my judgment, the defences raised by Counsel for the 3rd Defendant are devoid of merit. As regards the first and second defences, in my opinion, the terms of the indemnity clause appearing as clause 6.1 and 6.2 of the Standard Remisier's Agreement are so wide that any delay on the part of the Plaintiffs in disposing the shares of the 1st Defendant cannot give rise to a triable issue. In other words, any amounts due from the 1st Defendant to the Plaintiff are recoverable from the 2nd Defendant pursuant to the indemnity clause. As regards the third defence, an internal decision of the Plaintiff (if true) to not hold the third defendant liable for the debt of the first Defendant, clearly cannot discharge the 3rd Defendant from liability. At a minimum, the Plaintiff must have communicated its decision to discharge the 3rd Defendant from liability to the 3rd Defendant, for the 3rd Defendant to be able to rely on it. In the absence of any communication of this decision, in my judgment, the 3rd Defendant cannot rely on the internal decision. Furthermore, as there is no consideration moving from the 3rd Defendant to the Plaintiff for his discharge, the Plaintiff is at liberty to revoke any such decision before it has been acted upon by the 3rd Defendant. Accordingly, this defence is also devoid of merit.

For the reasons stated above, I allow prayer (a) of enc. 26 and order the 3rd defendant to pay cost of RM 350 to the Plaintiff.