JUDGMENT

Hj. Abdul Malik bin Hj. Ishak JC:

This is an appeal by the appellants/defendants against the whole decision of the learned Judge of the Sessions Court, Taiping, Perak ("the trial Court") in respect of unpaid rentals pursuant to a hire-purchase agreement with the respondent/plaintiff. The first appellant ("hirer") took on hire purchase from the respondent ("owner") one second hand BMW car bearing registration number AAQ 8196. The second appellant acted as a guarantor ("guarantor"). The transaction was the subject of a formal hire purchase agreement ("the agreement") dated 10 August 1988. By the agreement the hirer contracted to pay 35 rent instalments of RM486 commencing on 10 September 1988 with a final instalment of RM465. By the agreement the guarantor also guaranteed the payment of the hire purchase rentals and all sums payable under the agreement and to indemnify the respondent against all loss, damage or expense which the respondent may be put to or sustain by reason of the hirer's neglect or breach of the terms or stipulations of the agreement. The hirer paid the initial deposit of RM8,000 but refused to pay a single instalment thereafter. During the currency of the agreement the BMW car was seized by the police on 16 November 1988 suspected to be used in a kidnapping case.

As most of the grounds of appeal are overlapping, Dato' Paramjit Singh, learned Counsel for the appellants relied on four principal grounds only. I shall now deal with them.

The admission of exhibit P1 (summary of financial obligations under the Hire Purchase Agreement) as evidence as it had not been satisfactorily proved in accordance with law

Learned Counsel for the appellants contended that the trial Court failed to take into account that the summary of financial obligations as per exhibit P1 should be given or caused to be given to the hirer. It was submitted that though the hirer's signature appeared on exhibit P1 yet she denied receiving a copy of it. This denial is borne out by the amended statement of defence especially paragraph 3(a) thereof.

In rebuttal, Mr. Yap Wai Kheong, learned Counsel for the respondent submitted that Tee Sew Kee (PW1) under cross-examination categorically stated that exhibit P1 was "handed to hirer". PW1 also stated that he signed exhibit P1.

The rights and duties of parties to hire purchase agreements are clearly spelt out in the Hire Purchase Act 1967 (Revised 1978) (Act 212) ("The Act"). The relevant section is:

4(1) Before any hire-purchase agreement is entered into in respect of any goods the owner shall give or cause to be given to the prospective hirer a written statement duly completed in accordance with the form set out in the Second Schedule:

Provided that where the agreement is entered into by way of acceptance by the owner of a written offer signed by or on behalf of the hirer, the provisions of this subsection shall be deemed not to have been complied with unless the written statement was given to the prospective hirer before the written offer was signed.

Mohamed Azmi FJ (as he then was) in Affin Credit (M) Sdn. Bhd. v. Yap Yuen Fui [1984] 1 CLJ 62 had this to say in regard to s. 4(1) of the Act:

The words used in s. 4(1) are clear. Absoluta sententia expositare non indiger. The words mean what they say, and they plainly require a written statement in the form set out in the Second Schedule to be given or caused to be given to the prospective hirer before any hire purchase agreement is entered into. Where the agreement is entered into by way of acceptance by the owner of a written offer signed by the hirer, which is the case in the present dispute, the proviso to s. 4(1) also requires the written statement to be given to the prospective hirer before the written offer was signed.

Further down the page the learned Judge said:

As a general principle, in order to decide whether the parties have reached an agreement, it is usual to enquire whether there has been a definite offer by one party