JUDGMENT

David Wong Dak Wah JC:

[1] The plaintiff's statement of claim claims the followings:

(a) A declaration that the purported agreement was never executed by the plaintiff and the plaintiff is not liable thereunder;

(b) That the purported agreement be adjudged void and cancelled;

(c) Damages;

(d) Interest on such damages at such rate and for such period as the court shall think just;

(e) Costs;

(f) Such other order and relief as the court shall think just and proper.

[2] The defendant is resisting the claim and in its defense raised the following points:

(a) Services rendered to the person who used the plaintiff's lost identity card were done in good faith;

(b) They were not aware of the perpetrated forgery;

(c) They withdrew the action against the plaintiff in the magistrate court as soon as they were informed of the forgery;

(d) They deny that the plaintiff had suffered any damage and pleads s. 7 of the Defamation Act.

[3] The facts of this case are these. The plaintiff is a qualified engineer who obtained his degree from the University of Glamorgan, UK in 1991 and had worked in England for about a year. He also obtained a master degree in engineering (M.Sc) in 1993 and then worked in Singapore for a year or so and thereafter he returned to Kuching to work for two and half years when he was involved in several high profile projects. In late 1999, he went to Kuala Lumpur to pursue his career. He is also a member of Institute Engineer Malaysia (IEM) and Institution of Structural Engineers (UK).

[4] On 10 April 2000, the defendant commenced legal action by way of a summons in the Magistrate's Court (MC Summons) against the plaintiff for the sum of RM1,041.41 owing in a mobile phone account based on an application form allegedly signed by the plaintiff; The MC Summons was served by way of substituted service by publishing the same in the Borneo Post in Kuching on 1 August 2000. Upon being informed by his sister Koh Poh Na (PW2) of the advertisement, the plaintiff concluded that he had been wrongly sued as he never used the defendant's services. He then made a police report and instructed his solicitors to write to the defendant and their solicitors. Nothing materialized until in 31 October 2000 when the defendant's solicitors offered to withdraw the MC Summons with no order as to costs and liberty to file afresh. This was rejected by the plaintiff as he was of the view that he should not bear the costs and also that the defendant should make an apology to him for having been wrongly sued. After his refusal he was paid a visit in Petaling Jaya by the defendant's public relation officer and a legal adviser who asked him to 'back down'. On 12 December 2000 the MC Summons was withdrawn in the magistrate court by the defendant with costs to the plaintiff to be taxed and liberty to file afresh.

[5] Sometime in October 2001, the plaintiff approached Mayban Finance Bhd. in Kuching for a hire purchase facility to obtain a car loan as he planned to return to work in Kuching. The loan was rejected by Mayban Finance Bhd. on the ground that the plaintiff's name appeared in their credit check system which captures people's name when they are sued. The plaintiff flew back to Kuching and saw one Mr. William Kong who acted for the defendant and requested that he made things right. Mr. William Kong then wrote to CTOS Sdn. Bhd. and rectified the situation by a letter dated 16 October 2001.

[6] When this court sat on 2 March 2006 for clarification of counsels' submissions, I asked the Mr. Alvin Yong, plaintiff's counsel what really the plaintiff's reliefs are. To this Mr. Yong said there are two issues:

1. Whether or not the plaintiff is entitled to a declaration as stated in prayers 1 and 2 of the statement of claim in the circumstances of this case.

2. Whether or not in the circumstances of this case there is a duty of care on the part of the defendant to ensure that the plaintiff's name does not appear in credit checking system of the finan