An acknowledgment of receipt extends the limitation period for claims related to loans, and a plaintiff is not required to issue a letter of demand before commencing legal action, as the writ serves as adequate notice.

Steve Ritikos J:

GROUNDS OF DECISION

The Plaintiff’s Case

The plaintiff claims that over a period of time from November 2008 to October 2011, he had lent out to the defendant a total sum of RM426,550.00 as the defendant would approach the plaintiff to lend him money as and when he needed money. As plaintiff and defendant were good friends, plaintiff lent the monies to the defendant and defendant would repay the monies lent as and when he had the money though not in full settlement of the monies lent each time.

Plaintiff claims that by an Acknowledgment of Receipt dated 11.8.2012 made between the plaintiff and defendant, defendant acknowledged the outstanding balance of the loan to be RM426,550.00. The plaintiff alleged that defendant refused neglected and was unable to repay the said sum of RM426,550.00 despite numerous demands and which now becomes due and payable.

The Defendant’s Case

The Defendant denied he ever loaned any monies from the plaintiff. Defendant alleged that plaintiff had actually gave various loans through the defendant to one Mr Abdul Wahab Bin Aman (“Wahab”) who was one of the Directors of the company called Samudera Offshore Supplies and Services Sdn Bhd (“Samudera”). The loans granted by plaintiff to Wahab was inclusive of interest although plaintiff was not at the material time, a licensed moneylender. The defendant alleged that the loans granted to Wahab constitute an illegal moneylending transaction pursuant to the Sarawak Moneylenders Ordinance (Cap 114). The defendant alleged that the loans were given to Wahab which were meant for Samudera’s working capital and that plaintiff knew about the loans which were meant for Wahab instead of the defendant. The defendant also pleaded that the plaintiff had obtained the acknowledgment of receipt on the 11.8.2012 from the defendant through fraud, coercion, duress and/or undue influence by threatening to harm the Defendant and/or his family.

Burden of Proof

It is trite that the Plaintiff needs only to prove his claim against the Defendant on a balance of probability as this is a civil claim.

The Issues

The issues before the Court are:

1.Whether the defendant is indebted to the plaintiff in the sum of RM426,550.00.

2.Whether the Plaintiff’s claim is time barred.

3.Whether the plaintiff is carrying out illegal moneylending activities.

4.Whether the plaintiff ought to send out a letter of demand before commencing the action.

Court’s Findings

Issue 1: Whether the defendant is indebted to the plaintiff in the sum of RM426,550.00.

In this case, the Plaintiff had produced cheques issued by the Defendant to the Plaintiff through the Defendant’s firm S.T. Motor Trading Co. to prove that he did loan money to the Defendant and the Defendant did owe him the sums claimed. The defendant is the sole proprietor of the firm S.T. Motor Trading Co. Defendant had even admitted this fact in his cross examination (see page 12 NOP). Pages 2 to 9 of Bundle B are the cheques issued by the Defendant to the plaintiff. This fact is admitted by the defendant. These cheques were issued by the defendant to the plaintiff in return for each loan advanced by the plaintiff to the defendant.

The plaintiff contended that the defendant had never put to the plaintiff or PW2 the issue of fraud or forgery and limitation when cross examining the plaintiff and/or PW2. Thus, the Defendant should be prevented from raising the issue of fraud, forgery and limitation in their submission or at the Defendant’s evidence.

A party must put forward the essential part of his case to the witness in cross examination else it will be treated as an abandonment of the Defendant’s pleaded case. In Aik Ming (M) Sdn. Bhd. & Ors v Chang Ching Chuen & Ors and another appeal 1995 MarsdenLR 876

“…It is essential that a party’s case be expressly put to his opponent’s material witnesses when they are under cross-examination. A failure in this respect may be treated as an aban