[1] The plaintiff a commercial banking institution, instituted this suit against the defendants for the recovery of monies due under credit granted to the first defendant, which was guaranteed by the second and third defendants respectively. To secure the repayment of the facilities, charges were registered in favour of the plaintiff over the first defendant’s land.

[2] The first defendant defaulted and failed to make repayment on the facilities. On 24 December 2001 the plaintiff’s counsel sent letters/notices of demand to the defendants claiming the sum of RM492,650.53 under the term loan facility and the sum of RM558,169.94 under the overdraft facility as at 15 January 2002 respectively.

[3] The plaintiff by way summons in chambers (‘encl 13’) dated 29 May 2005 proceeded against the second and third defendants (‘the defendants’) for summary judgment under O 14 of the Rules of the High Court 1980 (‘the RHC’) which was allowed by the learned deputy registrar of the High Court on 29 March 2006. The defendants being dissatisfied with the said decision have filed an appeal to judge in chambers dated 31 March 2006 [*136] (‘encl 26’). On 12 September 2006 the court after reading the written and hearing oral submissions by counsel for both parties dismissed the defendants’ appeal with costs and hence this appeal dated 31 October 2006.

THE LAW ON O 14 APPLICATION FOR SUMMARY JUDGMENT

[4] The basic principle applicable is that as stated by Mohamed Azmi SCJ in the locus classicus case of Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ 400 when delivering the majority judgment of the Supreme Court, and I find it necessary to quote from his judgment in extenso (at p 408):

In our view, basic to the application of all those legal propositions

is the requirement under O 14 for the court to be satisfied on the

affidavit evidence that the defence has not only raised an issue but

also that the said issue is triable. The determination of whether an

issue is or is not triable must necessarily depend on the facts or the

law arising from each case as disclosed in the affidavit evidence

before the court. On the treatment of conflict of evidence on

affidavit, Lord Diplock speaking in the Privy Council on Eng Mee Yong

& Ors v Letchumanan had this to say at p 217:

Although in the normal way it is not appropriate for a judge to

attempt to resolve conflicts of evidence on affidavit, this does

not mean that he is bound to accept uncritically, as raising a

dispute of fact which calls for further investigation, every

statement on an affidavit however equivocal, lacking in

precision, inconsistent with undisputed contemporary documents or

other statements by the same deponent or inherently improbable in

itself it may be.

Although Lord Diplock was dealing with an application for removal of

caveat in that particular case, we are of the view that the above

principle of law is relevant and applicable in all cases where a judge

has to decided a case or matter on affidavit evidence.

Under an O 14 application, the duty of a judge does not end as soon as

a fact is asserted by one party, and denied or disputed by the other in

an affidavit. Where such assertion, denial or dispute is equivocal, or

lacking in precision or is inconsistent with the undisputed

contemporary documents or other statements by the same deponent, or is

inherently improbable in itself, then the judge has a duty to reject

such assertion or denial, thereby rendering the issue not triable. In

our opinion, unless this principle is adhered to, a judge is in no

position to exercise his discretion judicially in an O 14 application.

Thus, apart from identifying the issue of fact or law, the court must

go one step further and determined