Zabariah Mohd Yusof J:

[1]Enclosure 11 is the second defendant’s application to strike out the plaintiff’s writ and statement of claim under O 18 r 19(1)(a) or (b) or (c) or (d) of the RHC and/or under the inherent jurisdiction of the court.

[2]Enclosure 7 is the application by the first defendant to strike out the plaintiff’s writ and statement of claim under O 18 r 19(1)(b) or (d) of the Rules of the High Court 1980 and/or under the inherent jurisdiction of the court.

BACKGROUND FACTS

[3]Proasas Sdn Bhd (‘Proasas’) and Dynaboost Sdn Bhd (‘Dynaboost’) have opened a corporate/investment trading account and a share margin trading facility with the first defendant.

[4]There was a letter of acknowledgement and undertaking dated 28 June 1999 (‘the undertaking’) executed by the plaintiff in favour of the first defendant (refer to LKK5 of encl 8).

[5]The terms of the letter of acknowledgement and undertaking is that, the plaintiff, inter alia, unconditionally and irrevocably undertook to pay the first defendant on or before 31 December 1999 all monies which are now or should at any time be owing to the first defendant by Proasas and Dynaboost in consideration of the first defendant agreeing at the plaintiff’s request forbearing to sue the said Proasas and Dynaboost.

[6]Proasas and Dynaboost have suffered substantial losses in the aforesaid accounts.

[7]The plaintiff breached his undertaking to pay the first defendant for the outstanding indebtedness of the said Proasas and Dynaboost by 31 December 1999.

[8]The first defendant’s solicitors demanded payment from the plaintiff vide letter of demand dated 28 January 2000 (exh LKK3 of encl 8).

[9]The plaintiff did not dispute the demand made by the first defendant but instead asked for the first defendant’s indulgence for an extension of time to pay till the end of July 2000 vide a letter dated 4 February 2000 (exh LKK7 of encl 8).

[10]There was a series of letters between the plaintiff and the first defendant from 23 February 2000 until 21 July 2000 which relates to the plaintiff’s repeated request for more indulgence and time for him to ‘settle the outstanding sum which was due to K&N Kenanga (1st Defendant)’.

[11]The plaintiff’s letter dated 28 April 2000 to the first defendant, inter alia, states as follows:

I would like, to request for a further extension of time for another 3 months to settle the outstanding sum which was due to K&N Kenanga.

[12]The plaintiff’s letter dated 14 July 200, inter alia, states as follows:

We assure you that the stakeholder has been appointed, we shall give the letter to them to get the amount owing to your client.

(refer to exh LKK8 of encl 8).

[13]The plaintiff failed to pay the indebtedness despite the indulgences given by the first defendant.

[14]As a result, the first defendant’s solicitors then issued another fresh letter of demand dated 5 July 2001 (exh LKK9 of encl 8).

[15]Again the plaintiff failed to pay the said indebtedness. It is to be noted that at this point, in time, the plaintiff did not dispute the indebtedness.

[16]On 26 October 2001, the first defendant then commenced a suit in Kuala Lumpur High Court Civil Suit No D-22–1869 of 2001 (‘Suit 1869’) (exh LKK4 of encl 8) against:

(a)Proasas;

(b)Dynaboost; and

(c)the plaintiff,

for a certain amount of sum owed to the first defendant.

[17]The claim by the first defendant in Suit 1869 was premised upon the undertaking dated 28 June 1999 executed by the plaintiff in favour of the first defendant (refer to LKK5 of encl 8).

[18]There was no dispute by Proasas and Dynaboost on the alleged debt and judgment in default was accordingly entered against Proasas and Dynaboost on 20 December 2001 and 3 December 2001 respectively when both the companies failed to enter their appearances (exh LKK10 of encl 8).

[19]The plaintiff filed an appearance and the first defendant filed an application for leave to enter summary judgment under O 14 of the Rules of the High Court 1980 against the plaintiff.

[20]In the hearing of the summary ju