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JUDGMENT
Mary Lim Thiam Suan JCA:
[1] These two appeals, Civil Appeal No: W-03(IM)(NCC)-56-07/2016 [1st appeal] and Civil Appeal No: W-03(IM)(NCC)-65-07/2016 [2nd appeal] were heard together just as they were similarly heard in the Court below since they arose from the same facts and involved common parties. We allowed the appeals after considering the submissions of both learned counsel. These are our reasons.
Background Facts
[2] The respondent sued both appellants before the Sessions Court at Kuala Lumpur in Civil Action No: A52NCC-362-02/2015 for monies outstanding under a friendly loan arrangement of RM325,800.00. The appellant in the 1st appeal, Sumathy Subramaniam [Sumathy] was sued as the principal borrower while the appellant in the 2nd appeal, Gunaseelan Tangiah [Gunaseelan] was sued as the guarantor. On 4 September 2016, the respondent entered summary judgments against both appellants. The terms of the summary judgment which is the same in respect of both appellants inter alia are as follows:
"Defendan hendaklah membayar kepada plaintif iaitu Jumlah Penghakiman sebanyak RM291,800.00, faedah pada kadar 5% setahun dari tarikh 22 November 2014 hingga tarikh Penghakiman, faedah pada kadar 5% setahun dari tarikh Penghakiman sehingga penyelesaian penuh dan kos sebanyak RM4,000.00."
[3] On 16 November 2015, the respondent filed two separate Bankruptcy Notices against both appellants. In each Bankruptcy Notice, the same judgment sum of RM291,800.00 together with the sum of RM14,504.85 as interest at the rate of 5% per annum and the sum of RM4,000.00 as costs, was specified as the unpaid debt. The total sum being RM310,304.85.
[4] On 26 January 2016, both appellants filed separate applications to set aside the Bankruptcy Notices; the ground relied on however, was the same; that the sum specified therein was more than what the respondent was legally entitled to under the terms of the summary judgment. The appellants argued that given that the terms of the summary judgment did not specify that the appellants, as judgment debtors were "jointly and severally liable", the judgment debtors must then be equally liable for the judgment sum. In other words, each judgment debtor should only be liable for half of the judgment sum.
[5] The applications were heard by two different Senior Assistant Registrars on 30 March 2016. Both learned SARs allowed the applications and the notices were set aside. According to the learned High Court Judge, the learned SARs were of the view that the judgment obtained by the respondent/Judgment Creditor or JC was "open ended as it did not specifically state the exact amount or portion that each JDs are liable. Further both the learned Senior Assistant Registrars are of the view that the amount owed should be divided equally between the JDs." The respondent appealed.
Decision Of The High Court
[6] The High Court allowed the appeal. It was the finding of the High Court that since Gunaseelan had guaranteed repayment of the loaned sum under the Friendly Loan Agreement dated 30 June 2011 ["the loan agreement"], the respondent was entitled to sue both Gunaseelan and Sumathy in the event Sumathy did not pay. The respondent had a cause of action against both of the appellants and it may pursue that line of action by either suing Gunaseelan with Sumathy in a "joint action", or by a "separate action against them individually". Consequently, the summary judgment that was entered against them "can be enforced against any one or both the JDs". The learned High Court Judge added that since the summary judgment referred to Sumathy and Gunaseelan as "defendant", the respondent "can proceed with one action against both the JDs at the same time or two separate actions against both of them individually. The cause of action against any one of the JD is not discharged if judgment [sic] entered against the other." Her Ladyship adopted the decision in ; [2012] 8 MLJ 285; [2012] 4 CLJ 624, holding that Subramaniam was
