JUDGMENT

Mohd Zawawi Salleh J:

Introduction

[1] This judgment is in respect of the Plaintiff's application for summary judgment against the Defendant pursuant to O. 14 of the Rules of the High Court, 1980 ("RHC") (Enclosure 8).

[2] The application is for recovery of the sum due under the Hire Purchase-!' Facility amounting to RM315,849-83 as at 5 January 2011, ta'widh at 1% per annum on the said amount calculated on daily basis from 6 January 2011 until the date of full settlement, costs of the application, solicitors-client costs and any other necessary relief.

[3] After hearing the rival submissions, I allowed this application with costs at R M3,000-00. I shall now state my reasons.

Factual Background

[4] For a better appreciation of Enclosure 8, regards must be had to the background of the case.

[5] The Plaintiff and the Defendant had entered into Hire-Purchase-i Agreement ("HPA") based on the principle of Al-Ijarah Thumma AI-Bai on 04-02-2010 in respect of one (1) unit Mercedes Benz CLS350 3.5 H/Specs 2005, Registration No: CCP 6999, Engine No: 27296430056288 and Chasis No: WDD2193562A021113 ("the Mercedes").

[6] The dispute arose when the Defendant has defaulted to pay the monthly installments as stipulated in the HPA.

[7] The Plaintiff was unable to get back the Mercedes because it was not at the address stated in the HPA at the time of repossession.

[8] By a letter dated 23 December 2010, the Plaintiff had demanded from the Defendant for the payment of the installment due and owing as at 22 December 2010. However, the Defendant failed to comply with the said demand.

[9] Thereafter, another letter was issued to the Defendant terminating the HPA and claiming the full outstanding sum due thereunder. Again, the Defendant failed, neglected and refused to make payment of the sum so demanded.

[10] This application was filed on the ground that the Defendant has no defence on merit and there is no triable issue which requires a full blown trial.

Arguments by Learned Counsels for Plaintiff and Defendant

[11] In response to the instant application, learned counsel for the Defendant argued on two (2) main issues:

(a) that the Mercedes identified in the HPA and Aqad For Rental Of Vehicle in Exhibit NH-1 was different from the one pleaded in the Plaintiff's Statement of Claim ("the Statement of Claim") and the one averred in Affidavit In Support of this application in ("the Plaintiff's Affidavit"), and

(b) that the Plaintiff has issued NOTICE OF INTENTION TO RE-POSSESS dated 20 December 2010 before the expiration of twenty-one (21) days from the service of the 4th Schedule Notice dated 6 December 2010. Therefore, the Plaintiff's claim herein is pre mature. That being the case, it was submitted on behalf of the Defendant that this is not a proper case for summary application.

[12] In countering the first issue, learned counsel for the Plaintiff raised a preliminary objection on the submissions put forth on behalf of the Defendant as it was never asserted by him in his affidavit. According to her, the Defendant merely averred that there was an issue on the identity of the Mercedes without precisely stated what the issue was. The issue was specifically presented for the first time through the submissions by learned counsel for the Defendant. The Plaintiff was caught by surprise by the said submissions which were obviously statements from the bar. Despite of that, the Plaintiff submitted that the Mercedes as pleaded in the Statement of Claim and averred in the Plaintiff's affidavit is the same Mercedes in the HPA. The Defendant has changed the registration number without informing the Plaintiff. This is evidenced by the report from FIS Data Link Sdn Bhd. Therefore, the Plaintiff has decided to proceed with this application by using the recent registration NO: of the Mercedes as the chassis and engine no(s) remains unchanged.

[13] As for the second issue, it was learned counsel for the Plaintiff's submission that the issue was irr