JUDGMENT

Mary Lim Thiam Suan JCA:

Introduction

[1] This is an appeal against the dismissal of the appellant/plaintiff's claim for inter alia rentals of premises rented to the respondent/defendant, return of the premises or value of the premises. After hearing the learned counsel, we reserved our decision. Upon careful consideration of the records of appeal, the ground of judgment and the respective submissions, this is our decision.

Factual Background

[2] The appellant and his late father were joint registered owners of premises at No. 27, Jalan Utama, Georgetown, Penang [said premises]. The said premises was used as a restaurant by the name of "Barkath Restaurant". By an "Agreement of Lease" dated 11 February 2002 made between the appellant and his father on the one part, with the respondent on the other, it was agreed that the said premises would be leased to the respondent for inter alia a period of three years commencing 1 March 2002 to 28 February 2005 at a monthly rental of RM2,500.00 per month, payable in advance on or before the 1st day of each and every month [the said lease]. The said premises came with a list of furniture and fittings which was attached to the said lease.

[3] The appellant claimed that at the time of the making of the said lease, the parties orally agreed that since the said premises were charged to United Overseas Bank (M) Bhd in respect of loan facilities taken by the appellant, that because the appellant was moving to Kuala Lumpur and as his late father was then too old to personally collect the monthly rentals, the respondent had agreed to pay the monthly rentals directly into the bank account of the appellant. The fixed loan and revolving credit facilities were taken out in the name of Barkath Restaurant with the appellant and a few others standing as guarantors.

[4] The appellant claimed that the respondent only paid the first month's rental into the account and thereafter failed to pay the rentals as agreed. As a result of the respondent's failure to pay the monthly rentals, the bank foreclosed on the said charge. The said premises were auctioned off on 1 September 2004 and the respondent was the successful bidder.

[5] The appellant claimed that he was unaware of the foreclosure proceedings as all related correspondence and notices were served or sent to the said premises, and the respondent never forwarded or notified him of the same. He only found out about the foreclosure and the auction when he went to the bank to inquire about the status of his loan and for bank statements.

[6] The appellant claimed that the respondent's purchase and possession of the said premises was inter alia by way of wrongful and illegal means, with bad faith, criminal intent and that the respondent had cheated the appellant. The appellant sued the respondent in January 2015. Amongst the reliefs claimed were rentals for the whole period of the agreed lease, double rentals and a return of the premises to the appellant and/or the market value of the said premises at the material time. The appellant entered a caveat on the said premises.

[7] While admitting the existence of the said lease, the respondent denied the existence of the oral agreement. The respondent claimed that the monthly rentals were collected by either the appellant or his father; that he was not aware of the charge until he saw the foreclosure notices attached to the said premises, that all notices and letters were collected by the appellant and his father, and that he had informed the appellant of the auction. According to the respondent, he was forced to buy the premises because he had spent a substantial amount on the said premises. The respondent further pleaded that the claim was time-barred under s 6(1) of the Limitation Act 1953 and/or by the doctrine of laches. In addition, the respondent counterclaimed for a revocation of the appellant's caveat and for losses including the loss of the RM2,040,000.00 loan that was withdrawn by the bank.

[8] The counterc