JUDGMENT

Hamid Sultan Abu Backer JC:

[1] This is my judgment in respect of the plaintiff's claim against the 3rd defendant as guarantor in respect of overdraft facilities granted to the 1st defendant. In suit No. 22-55-2002 the 3rd defendant is the plaintiff and claims for a declaration that the guarantee is null and void, etc.

Brief Facts

[2] The 2nd defendant is the father and the 4th defendant is the brother of the 3rd defendant. Both the 2nd and 4th defendants had passed away after the commencement of the action. The 3rd defendant is not a Director or Shareholder of the 1st defendant though the 4th defendant was the Shareholder and Managing Director of the 1st defendant. The letter of offer dated 30 September 1994 was accepted by the 4th defendant. It was inter alia a term of letter of offer that the 2nd, 3rd and 4th defendants must execute joint and several guarantee. The 1st defendant company had passed a director resolution authorising the 4th defendant to accept the letter of offer. There are many other documents which have the signature of the 4th defendant to show the propriety of the transaction. The 1st defendant has defaulted and hence this claim.

The 3rd defendant's main contention was that his signature was forged and asserts that it is not his signature. He cannot recall signing the said guarantee or/and did not request for the said facility. In addition to the evidence of 3rd defendant, the 3rd defendant relies heavily on the evidence of one handwriting expert, from India.

Preliminaries

[3] Three witnesses gave evidence for the plaintiffs and two witnesses for the 3rd defendant. The plaintiffs led evidence to establish its case. The solicitor, (PW2) who witnessed the execution of the guarantee gave evidence. A handwriting expert by the name of Mr. Harcharan Sing Tara (PW3) gave evidence in support of the plaintiffs' case. I take the view that it is not necessary for me to rely on expert evidence unless I am in doubt of the signature. Further, I do not see much merit in the 3rd defendant's contention that he did not request for the said facility. The real issue is whether the signature of the 3rd defendant is genuine and not a forgery.

Evidence

[4] PW2 testified that he witnessed the 3rd defendant's signature in the said guarantee and that he is acquainted with the 3rd defendant's signature as he had on many occasions from time to time been requested by the 2nd and 3rd defendants to witness their respective signatures in their family's various business ventures, both locally and overseas. PW2 claimed that the 3rd defendant's signature therein is a genuine one. The 3rd defendant in his evidence confirmed that he knew PW2 and that PW2 has witnessed some of his overseas documents before. Based on this evidence, the plaintiffs say it is a well established general guide to the judicial appreciation of handwriting evidence that where there is a sharp conflict between the direct testimony of a disinterested witness on the one side and that of a handwriting expert on the other as to the genuineness of the execution of a document, then it is a safe course for the court to prefer the direct evidence. (See Lee Ing Chin & Ors v. Gan Yook Chin & Anor, [2003] 2 MLJ 97 ).

[5] PW3 stated that in his opinion the 3rd defendant's signature in the said guarantee is a genuine one, and inter alia in his report says:

No signature should be pronounced or declared as forgery if it only diverges in some respect of letter design. The following should be taken into consideration: Natural Variation, speed of writing, environmental conditions of writing. More importantly, in the signatures "Q1",and "Q2" there was not an iota of evidence of the usual features of forgery viz . no evidence of "delicate" retouching, touch-ups, unusual pen lifts and hesitation or bad line quality of forgery.

In mark contrast, the 3rd defendant's expert (DW2) opinion inter alia says as follows:

1. The suspected signature marked Q-1 on the Bank Guarantee pertaining to RHB Ban