JUDGMENT

Low Hop Bing J:

In this suit, the plaintiff's claim against the defendant is for a sum of RM13,127,331.79 together with interest thereon at the rate of 8% per annum from 1 September 1990 till the date of judgment and thereafter until the date of realisation. The claim is contested by the defendant who has also filed a counterclaim for the same amount.

The plaintiff's claim puportedly arose from the 20% discount given to the defendant in respect of the supply and consumption of electricity at its Steel Mill Plant in Kemaman, Terengganu Darul Iman for the period from February 1988 till 31 December 1989.

The plaintiff and the defendant had executed Contract No. 383/85 ("the Contract") for the supply and consumption of electricity, pursuant to which the defendant was required to pay electricity bills within thirty days of receiving the bills together with discount notes, from the defendant, otherwise the plaintiffs will disconnect the electricity supply to the defendant's premises.

By letter dated 11 March 1987, the Ministry of Trade and Industries Malaysia ("MTI") confirmed with the defendant that 20% Government Discount on all electricity bills given to the defendant by the plaintiff has been granted with effect from 1 February 1987. For the purposes of the implementation of the discount, the defendant was asked to contact the plaintiff. This is evidenced by the material paragraph of the letter which reads as follows:

Kementerian Tenaga, Telekom dan Pos telah seterusnya bersetuju supaya Syarikat Perwaja Terengganu Sdn Bhd diberi diskaun sebanyak 20% ke atas bil elektrik bulanan (Kem. LP. 13) di tapak kilangnya bertempat di Kawasan Perusahaan Telok Kalong, Kemaman, Terengganu berkuatkuasa mulai 1hb Febryari 1987. Sila tuan berhubung dengan pihak Lembaga Letrik Negara di tempat tuan supaya diskaun ini dapat dilaksanakan.

(Translation: The Ministry of Energy, Telecommunications and Posts has thereby agreed that the Company Perwaja Terengganu Sdn Bhd be given discount at 20% on monthly bills (Kem. LP. 13) at its factory site situated in the Telok Kalong Industrial Area, Kemaman, Terengganu with effect from 1st February 1987. You are requested to contact the National Electricity Board in your area so that the discount can be implemented.

Pursuant to the contract, the plaintiff sent to the defendant the respective monthly electricity bills, credit notes for 30% discount, credit notes for 20% discount and covering letters confirming the amounts under the electricity bills, the amount of 30% discount, the amount of 20% discount and the amount to be paid. The 30% discount is not an issue here. As stated above, the dispute is confined to the 20% discount only.

In my judgment, it is the plaintiff's obligation and legal duty to send correct electricity bills and 20% discount credit notes to the defendant. The plaintiff at all material times knew that the defendant would rely upon these bills and credit notes to make payment. These bills and credit notes were signed by authorised officers of the plaintiff, as confirmed by the evidence of PW1 who is the district manager for Kemaman. However, under cross-examination, he has categorically stated that he has no knowledge concerning the issue of 20% discount as all these matters were handled by the plaintiff's head office in Kuala Lumpur. He only followed directions from the head office in Kuala Lumpur. In light of his ignorance, his evidence did not assist the plaintiff in establishing its claim against the defendant.

PW2 is the accountant for the plaintiff. He testified under cross-examination that he is not competent to comment on the letter written by Mr. K.M. Loke, the chief accountant of the plaintiff.

Under s.101(1) of the Evidence Act 1950, whoever desires the Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. In other words, the plaintiff must prove such facts as the plaintiff desire