Balia Yusof Wahi J:

[1]The plaintiff claimed that the defendant has been unjustly enriched and filed this application for a declaration that the defendant among others have derived a benefit when they retained an excess sum of RM265,117.57 which was not paid gratitiously to them and having retained the said sum for six years and enjoyed benefits for the use thereof. The plaintiff is further seeking for a declaration that they are entitled for the return of a sum amounting to RM121,038.88 being the interest quantified on the said amount retained by the defendant from 1 July 1984 to 15 October 2002.

[2]As a background to the plaintiff's claim, the defendant, Estate Pekebun Kecil Sdn. Bhd. (hereinafter referred to as Espek) had on 13 June 1986 sued the plaintiff, Perak Motor Co. Sdn. Bhd. (hereinafter referred to Perak Motor) for goods sold and delivered in the sum of RM296,806.09. On 16 October 1996, the High Court gave judgment in favour of Espek whereby Perak Motor was ordered to pay:

i) The amount claimed RM296,806.09

ii) Interest on the said RM296,806.09 at 14% per annum from 1 July 1984 to the date of judgment 16 October 1996.

iii) Interest on the said RM296,806.09 at 8% per annum from the date of the judgment 16 October 1996 until full satisfaction.

[3]In compliance with the said High Court Order, Perak Motor has by 17 March 1997 paid a total of RM817,453.37 to Espek and in the meantime had lodged an appeal to the Court of Appeal. On 15 October 2002 the Court of Appeal allowed in part the appeal by Perak Motor and granted the following orders:

(i) Judgment for the principal sum RM296,806.09 is affirmed.

(ii) No interest is payable between 1 July 1984 and to the filing of the writ ie, 13 June 1986.

(iii) Interest between the date of filing of the writ (13 June 1986) and judgment date of the High Court (16 October 1996) be reduced from 14% to 8% per annum.

(iv) Interest at 8% per annum between the date of judgment and the date of final satisfaction of judgment remains.

Following the above decision of the Court of Appeal reducing the rate of interest from 14% to 8% there was therefore an overpayment of RM265,117.57 by Perak Motor (hereinafter referred to as overpayment sum). On 15 November 2002, solicitors for Perak Motor wrote to Espek requesting for the refund of RM265,117.57 and a further sum of RM121,038.88 being interest calculated at 8% per annum on the said overpayment sum as exhibited in exh. "YTC2" of encl. 2. On 17 February 2003 Espek refunded the overpayment sum of RM265,117.57 andvia a latter dated 18 February 2003 Perak Motor's solicitors accepted the said sum on a without prejudice basis and were still demanding for the interest amount of RM121,038.88 as shown in exh. "YTC5" of the same enclosure.

[4]The present action is filed by Perak Motor seeking for a declaration among others that they are entitled to recover the said sum of RM121,038.88 which represents the interest on the overpayment sum of RM265,117.57 which Espek had benefited from.

[5]Foremost in the plaintiff's contention is the principle of restitution and unjust enrichment. For the last seven years (from (17 March 1997 to be exact), Espek has retained the overpayment sum and has benefited from it. To allow Espek to keep the money and claimed benefits from it in the form of interest and for its use which rightfully is not theirs would amount to unjust enrichment and that would in turn entitles Perak Motor to claim for restitution.

[6]Unjust enrichment and restitution goes hand and hand. Justice Gunn Chit Tuan (as he then was) inNew Kok Ann Realty Sdn. Bhd. v. Development & Commercial Bank Ltd. New Hebrides (in liquidation); [1987] 2 MLJ 57 in quoting the English decision ofFibrosa Spolk Akeyjna v. Fairbairn Law Son Combe Barboer Ltd. [1943] AC 32 stated at p. 64:

It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retain