JUDGMENT

Vincent Ng J:

[1] The defendant's claim is for the balance purchase price on goods delivered to New MK Marble and Granite Sdn Bhd ('New MK Marble'), the order of, and payment for which was expressly agreed to be made by the plaintiff. To be noted is that PEDC is formerly known as Peremba Construction.

[2] There were only three issues raised by the plaintiff, namely: (a) quality; and (b) shortfall of the goods supplied to and received by New MK Marble; (c) allegation of fraud against the defendant since the recipient of the goods was one Charles Lee Chye Hin ('Charles') who was the husband of the defendant's directors/shareholders named Madam Shu Yoke Mui.

Re (a) Quality And (b) Shortfall

[3] Considering that the plaintiffs had not at any time raised any complaint to the defendant concerning the quality or shortfall of the goods concerned they should not now be heard to raise this issue. It is this court's observation that the letter of complaint dated 9 March 2006 adduced by the plaintiff as exh. 'A-5' was in fact a letter from New MK. Marble & Granite Sdn Bhd which was addressed to Peremba Trading Sdn Bhd. This 9 March 2006 letter was indeed acknowledged and initialled as received by the latter at 3pm on 24 May 2006 - with their rubber stamp bearing the words (similar to exh. 'SYM-1' of encl.7) 'PH05 Peremba Construction ...'. It is trite law that in cases of goods sold and delivered, if evidence shows that a party had accepted the goods but fails to make any complaints in terms of quality or shortfall within a reasonable time he is deemed to have accepted the goods unconditionally. This court would have to take note that the plaintiffs had not, within a reasonable time, complained about the goods received by New MK Marble.

Re (c) Allegation Of Fraud

[4] It is common ground that Charles had acknowledged receipt of the goods and that at the material time he was an employee and project manager of New MK Marble. But, a factor which I hold in favour of the defendant is that even at the time of his application for the job in New MK Marble he had stated that Mdm Shu Yoke Mooi was his spouse (see exh 'A-6' of encl 3). Furthermore, Charles was the only person charged with the duty of liaising with the plaintiff and he had done so on a regular basis as the defendant had no sales personnel. I do not see how could there be any fraud committed by the defendant, as the plaintiff must have been aware of this relationship between Charles and Madam Shu Yoke Mui, and had acquiesced to this state of affairs. Furthermore, the plaintiffs had not complained or raised any objection in this regard until the defendant started to pursue this claim for the goods sold and delivered.

Re (d) Any Acknowledgement Of Debt

[5] The defendant's case is that they have written to the plaintiff a letter dated 24 March 2006 (rubberstamped as received on 25 March 2006 by 'PH0S, Peremba Construction ...') which, inter alia , stated that the plaintiff had agreed to release to the defendants payment of the balance of RM133,640 (see exh. 'SYM-1' encl. 7). The letter states as follows:

Freehold Point Sdn. Bhd. (331140-V)

24th March 2006

Peremba Construction Sdn Bhd

Block ... Peremba Square,

Saujana Resort, Seksyen U2

41050 Shah Alam

Selangor Darul Ehsan

Attn: Puan Radzillah Mahmood

Dear Puan,

Re: P.O. No PHOS/po/01808

D/O No. 0025/06, dated 10 February 2006

D/O No. 0026 & 0027/06 dated 22 February 2006

Invoice No. T/0028/06

The above P.O, d/o and Invoice refers.

As per your instruction the goods ordered by you been delivered to your sub-contractor M/S New MK' Marble & Granite Sdn Bhd factory in Semenyih since 22nd February 2006. We are please to inform you that they are in the process of cutting to sizes and will be release and send to your project site for installation soon.

During the site meeting with En Akmal of KLCC, your goodself had agreed to release the balance of the sum amounting to RM133,640.00 to us and that was weeks ago.

We looking forward to receive your cheque of RM133,6