Vincent Ng J:

As I had expected, this case had to go for full trial. And, I would expect my decision here would be appealed. The defendant is a lawyer. Furthermore, the plaintiff had s. 3 of the Moneylenders Act 1951 to contend with. So, I decided to promptly put pen on paper to write and deliver this decision within a week after the close of trial.

At the commencement of and in the course of the trial the following pertinent facts common between the parties were recorded and recognised by this court.

At all material times, the defendant was a sole proprietor trading under the name and style of Yacob Mat Yim & Rakan-Rakan running a legal practice at No. 93C, Tingkat 2, Jalan Bangsar, 59200 Kuala Lumpur. The defendant had executed an irrevocable and unconditional letter of undertaking dated 26 January 1998 in favour of the plaintiff as contained in 'exh. P1'. The defendant had received a loan in the sum of RM150,000 from the plaintiff by way of a bearer's cheque no. 404389 dated 27 January 1998 which was drawn on Bank Bumiputra Malaysia Berhad, and the defendant had acknowledged receipt of the same by signing on the plaintiff's payment voucher no. 2512 dated 23 January 1998. In consideration of the loan sum of RM150,000 granted by the plaintiff to the defendant, the defendant had expressly agreed in writing with the plaintiff to repay the plaintiff in full, on or before 2 July 1998, the following sums:

(a) the said loan sum of RM150,000;

(b) the sum of RM33,770.27 as agreed legal fees, costs and incidental charges; and

(c) a further sum of RM196,229.73, being the sum agreed by the defendant to be then outstanding by one Jamal bin Hussain (NRIC No. 5826416).

It was further agreed that: the loan of RM150,000 to him was interest free; that, in respect of the loan of RM150,000, a 10% per annum interest was only chargeable in respect of late payment charges ie, after the due repayment date of 2 July 1998; and that a 10% late payment charges for period after 2 July 1998 was to be payable on the RM196,229.73 loan to Jamal.

Thus, the RM380,000 claim comprise precisely the aggregate of RM150,000 plus RM33,770.27 and RM196,229.73, and both parties have agreed that no interest was to be charged on the RM380,000 until 2 July 1998.

Through this court's meticulous case management the parties have readily agreed, pursuant to O. 34 r. 4(2)(c) of the Rules of the High Court 1960, to confine the determination of the case to only two issues, namely:

(a) Whether the plaintiff had lent money (on one or two occasions) to the defendant in consideration of a larger sum being paid.

(b) Whether he was a moneylender at the time of the impugned transaction or transactions.

To support his cause, on this point, counsel for the defendant cited the following passage in Chellappah Rasadurai v. Selvadurai [1971] 2 MLJ 170 (FC) which reads:

In the instant case on the plaintiff's own pleadings alone it is clear that he had two occasions lent money to the defendant in consideration of a larger sum being paid, and therefore the statutory presumption under s. 3 arose against him

He further quoted another passage in T Chellaapah v. Official Assignee [1971] 1 MLJ 24 (FC) (which were decided pursuant to s. 3) which states:

Section 3 enables a defendant to found his claim on proof of a single loan made to him at interest, it being presumed, in the absence of rebutting evidence that there were sufficient other transaction of a similar sort to amount to a carrying on business It will be seen that proof of a single loan made to the debtor at interest raised a presumption that there were sufficient other transaction of a similar sort to amount to a carrying on of the business of money lending by the appellant

The question is, how do we resolve the above views of the Federal Court in the light of s. 2A(1)(h) read with s. 2 of the Act as elucidated by the Privy Council in Chow Yoong Hong v. Choong Fah Rubber Manufactory [1962] MLJ 74 (on system and continuity) an