GROUNDS OF JUDGMENT.

This is an appeal by the Defendant against the decision of the learned Session Court Judge made on 15th September 1995 allowing the Plaintiff's claim against the 1980 claiming for the sum of RM97,575.00 plus costs for goods purchased and delivered and for services rendered.

The brief facts of the case are as follows. On 22nd April 1994 the Defendant as contractor and the Plaintiff as sub-contractor entered into a contract whereby the Plaintiff would supply and deliver materials and to do works required for the purpose of "SLOPE PROTECTION WORKS" at Taman Titiwangsa for a contract sum of RM428,250.00. It was an agreed term that payment for progressive work must be paid by the Defendant within 10 days of claim made by the Plaintiff to the Defendant.

The Plaintiff had carried out works for the value of RM97,575.00 and made claim to the Defendant on 4th November 1994. But the Defendant had failed to settle the Plaintiff's claims. Hence the Plaintiff brought this action against the Defendant.

At the Session Court after Defence had been filed by the Defendant, the Plaintiff applied for a summary judgment under O. 26A of the Rules of the Subordinate Courts 1980 as the Plaintiff alleged that the Defendant had no valid defence to the Plaintiff's claim.

Before the learned Session Court Judge the Defendant, in an attempt to object the Plaintiffs application gave 2 grounds why the application should be rejected, namely:-

1. There was delay in the part of the Plaintiff in filing the notice under O. 26A; and

2. There was a novation of contract by the Defendant to the main contractor.

In respect of the 1st ground, there was a delay of 6 weeks by the Plaintiff in filing the application under O. 26A.

However the Plaintiff had given an explaination of the delay. It was explained that the Plaintiff was overseas during that time. That explaination was accepted by the learned Session Court Judge as reasonable. In his grounds of judgment the learned Session Court Judge also said that 6 weeks is not inordinate delay. I am in full agreement with the findings of the learned Session Court Judge in respect of this ground.

In respect of the 2nd ground, i.e. a novation of contract, it is to be noted that the Defendant was awarded this contract from the Main Contractor, Titibina Credit & Leasing Sdn. Bhd. The Defendant alleged that the main contractor had agreed to the novation of contract to themselves and as such the Defendant should no longer be liable under the terms of the contract between the Plaintiff and the Defendant. It was contended by the Plaintiff that there was an intention to novate the contract to the main contractor from the Defendant. However the intention did not become a reality because the main contractor refused to sign the novation agreement.

Because the novation agreement was not signed by the main contractor the Session Court Judge ruled that there was no novation of the contract from the Defendant to the main contractor. In the light of such circumstances the Session Court Judge ruled that this 2nd defence should also fail.

Before me the Counsel for the Defendant argued quite strenuously that there was in fact a novation of contract from the Defendant to the main contractor. It was submitted by the learned Counsel that the signing of the novation agreement by the main contractor was not important. He argued that the main contractor had made payments direct to the Plaintiff. Therefore there was already in effect a novation. In my view signing of the novation agreement by the main contractor would be a conclusive evidence to indicate its consent. The fact that it had refused to sign it should clearly that it did not want the contract between the Plaintiff and the Defendant be novated to it. That it had made some payments direct to the Plaintiff does not mean that the contract had been novated from the Defendant to the main contractor. In other words the Defendant would be relieved of its liability if there exist