JUDGMENT

Azmi LP:

Menaka wife of M Deivarayan (hereinafter referred to as Menaka) applied by way of originating summons to the High Court at Kuala Lumpur for an order of sale by public auction of certain pieces of land (hereinafter referred to as the said lands) to satisfy a principal sum of $20,000 and interest thereon, lent by her to Ng Siew San (hereinafter referred to as Ng). The said lands were charged to Menaka and a charge was registered at the Land Office as security for the said loan. The application was made by one Nachiappa Chettiar acting as the attorney of Menaka. In my view it is important to note that nowhere in his affidavit in support of the application for the sale of the land did Nachiappa state that the moneylender was the AR PR M Firm and that Menaka was merely the managing director.

Ng objected to the application upon several grounds and set out the facts and his grounds of objections which I summarise as follows:

(1)Menaka was licensed to carry on the business of moneylending under the authorised name of AR PR M Firm at the authorised address of 30 Leboh Ampang, Kuala Lumpur.

(2)Manickam Chettiar was licensed to carry on the business of moneylending as agent of AR PR M Firm at the same address.

(3)The memorandum under s. 16 of the Moneylenders Ordinance 1951 disclosed that Menaka is the lender and that Manickam Chettiar signed it as her attorney. The charge registered at the Land Office as Presentation No. 167/65 also disclosed Menaka as the charge and the document was signed by Manickam Chettiar as her attorney.

(4)It is alleged that both Menaka and Manickam Chettiar having been licensed to carry on the business of moneylending under the authorised name of AR PR M Firm carried out the business in the name of Menaka, and had contravened the provisions of s. 8(b) of the Ordinance.

(5)The licence granted to Manickam Chettiar to carry on the business of moneylending as an agent of AR PR M Firm does not permit him to carry on the business in three ways at the same time namely:

(i) in the name of the firm on behalf of the firm,

(ii) also separately on behalf of Menaka in her personal name and

(iii) AL Chockalingam in his own individual name.

(6)The memorandum under s. 16 failed to disclose the following terms stated in the charge:

(a) that Ng shall not transfer, sell, charge or otherwise deal with the land without the written consent of the said chargee first had and obtained, and

(b)that the said chargee shall have the custody or possession of the issue documents of title of the land charged.

(7)Neither in the memorandum under s. 16 of the Ordinance nor in the memorandum of charge registered in the Land Office was disclosed the authorised name of AR PR M firm. Menaka having entered into the agreement for the loan and repayment of the money lent and having executed the said memorandum under s. 16 otherwise than in the authorised name of AR PR M Firm, had rendered the transaction illegal, void and unenforceable.

Ng thereupon asked for a declaration to that effect.

Nachiappa Chettiar, Menaka's present attorney filed an affidavit in reply. He admitted the facts alleged in paras. 1, 2 and 3 above. He further stated that Menaka was at all material time the managing partner of AR PR M Firm and the cheque and the receipts in connection with the loan were in the name of

AR PR M Firm. In reference to para. 4 above he said that Ng well knew at all material time that the lender was AR PR M Firm and that Menaka was the managing partner. He denied that Ng was entitled to the prayer in para. 7. He further made the following claim:

4(a) Even if Ng is entitled to the prayers contained in para. 16 of his affidavit (para. 7 above) which is expressly denied by Menaka money not intended by Menaka to be given to Ng and Ng having enjoyed the benefit thereof is bound to restore the same to Menaka.

The learned Judge proceeded to consider the matter under three issues namely:

(1)Whether Menaka has violated s. 8(b)