JUDGMENT

1. Brief Facts

1.1. On or about 30/11/05, M. Saravanan (DW2) requested for a loan from the Plaintiff for the Defendant. DW2 spoke to M. Balakrishnan (PW1) the Managing Director of the Plaintiff, on behalf of K. Ravindran (DW1) the Executive Director of the Defendant and requested for a "short term friendly loan".

1.2. Upon the Defendant signing and forwarding a Letter of Undertaking dated 30/11/05 (Bundle B - pages 1 and 2) addressed to PW1 and the Plaintiff, the Plaintiff gave a loan of RM1.5 million to the Defendant to be repaid within 14 working days "from the date of receipt of the full loan".

1.3. The loan was disbursed by the Plaintiff as follows:

(i) RM500.000 paid by cheque into the Defendant's account on 6/12/05.

(ii) RM300.000 paid by telegraphic transfer into the Defendant's account on 7/12/05.

(iii) RM200.000 paid by telegraphic transfer into the Defendant's account on 8/12/05.

(iv) RM500.000 paid by telegraphic transfer into the Defendant's account on 12/12/05.

The loan was to be repaid by 30/12/05.

1.4. The Defendant in paragraph 3 of the Amended Defence admitted receiving the loan of RM1.5 million from the Plaintiff.

1.5. The Plaintiff claimed that the Defendant had failed to repay the loan sum or any part thereof and issued a Letter of Demand on 2/9/10.

1.6. The Defendant claimed that they had repaid the loan in full together with interest on or before 31/12/05 to the Plaintiff through DW2 namely, the sum of RM1,521,000 being repayment of the loan of RM1.5 million and the sum of RM21,500 as interest payable on the loan.

1.7. DW2 in his evidence claimed that he had before 31/12/05 paid the sum of RM 1,077,000 in 11 cheques issued by his company RMW Manufacturing Sdn Bhd (RMW) to the Plaintiff and cash in the sum of RM444.500 to PW1 thereby totaling RM1,521,000. The list of the 11 cheques is set out in paragraph 4 c) of the Amended Defence.

1.8. The Defendant also claimed, by way of an amendment to the Defence, that the loan was an illegal money transaction and therefore void and unenforceable in law.

2.Issues

The main issues to be determined by the Court were:

(i) Whether the loan was repaid in full by DW2 on behalf of the Defendant and

(ii) Whether the loan was an illegal money lending transaction.

3.Decision of the Court

Upon hearing the evidence of the 2 witnesses for the Plaintiff and the 2 witnesses for the Defendant in the full trial and upon reading the written submissions and hearing oral submissions of Counsel, the Court found as of fact that the Defendant had failed to repay the loan in full or any part thereof to the Plaintiff. The Court also found as of fact that the loan was a friendly loan without interest and not a money lending transaction. Accordingly, the Plaintiff's claim was allowed with costs.

4.Appeal

The Defendant being dissatisfied with the judgment given on 29/9/11 now appeals against the said decision.

5.Grounds of Judgment

5.1. Whether the loan was repaid by the Defendant

5.1.1. It was an undisputed fact that the loan sum of RM1.5 million was disbursed to the Defendant through DW2. It was also an undisputed fact that the Defendant did receive the loan sum from the Plaintiff.

5.1.2. It is important to note at the outset that the main line of defence in this case was that the Defendant had repaid the loan in full and as such ought not be made to repay the loan a second time. It was not as through the Defendant had not repaid the loan and now refuses to do so on the ground that it is an illegal money lending transaction.

5.1.3.DW1 in his evidence testified that he had paid RM3.6 million by cheque to DW2 on 23/12/05 (Bundle C - pages 178 to 180) and that out of this sum DW2 was to pay RM1.5 million to the Plaintiff. That being the case DW2 ought to have repaid the Plaintiff in full by 26/12/05.

5.1.4.DW2 in his evidence said that upon clearance of the Defendant's cheque of RM3.6 million, he had transferred RM3.2 million to RMW's account with RHB Bank on 27/12/05 (Bundle B - page 10) and that he used part of