JUDGMENT

Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] As long ago as December 1980 the respondents (defendants in the court below) placed RM21,350 on deposit with the appellant bank (plaintiff in the court below). Some 27 years later on 11 September 2006 the defendants' solicitor issued a notice making demand of the aforesaid sum pursuant to s. 218 of the Companies Act 1965. Failure on the part of the plaintiff to comply with the demand would, of course, have meant that the defendants would have been entitled to file a petition to wind up the plaintiff bank. So, the plaintiff went into court on 2 October 2006 with an originating summons claiming, inter alia, a declaration that the sum claimed by the defendants was not owing by it and other consequential relief including an injunction restraining the defendants from instituting and presenting winding up proceedings. In their affidavits filed in answer to the summons the defendants raised a counter claim. They were entitled to do so under O. 28 r. 7 of the Rules of the High Court 1980. Following an exchange of affidavits, the parties presented arguments to the learned judge who heard the summons. Later, the learned judge dismissed the summons but entered judgment on the defendants' counter-claim. It is against these orders that this appeal has been brought.

[3] A number of arguments directed on the merits of the case were addressed to us by both sides. But we must be forgiven if we do not address any of them here. In our judgment this appeal turns on a short point. It is whether the learned judge was entitled to proceed on the summons as he did or whether he ought, in the face of the serious conflict of evidence before him, to have given directions for the summons to proceed as a writ action under O. 28 r. 8 of the Rules of the High Court 1980. We say this because both the claim and counter claim made by the respective parties raised matters of finality which can only be determined after a proper exchange of pleadings and after hearing oral testimony.

[4] In E'Singam v. Dr Sundram & Ors ; [1960] 26 MLJ 91 Adams J held that the originating summons procedure was unsuitable or inappropriate to determine disputed questions of fact. He then proceeded to dismiss the summons in that case. But it must be remembered that at the time the case was decided O. 28 r. 8 did not exist. Again in Ng Wan Siew v. Teoh Sin ; [1963] 29 MLJ 103 Thompson CJ made the following observation when delivering the judgment of the Court of Appeal of the Federation of Malaya:

... it has been said again and again that when it is known there is going to be a conflict of testimony and a necessity for taking parol evidence the proceedings should be commenced by writ and a plaintiff if successful may be deprived of any additional costs caused by his having commenced proceedings by way of originating summons.

[5] It is implicit in the aforesaid passage that the originating summons procedure is wholly inappropriate where there is a serious dispute of facts.

[6] In responding to these points learned counsel for the respondents relies strongly on the decision of the Privy Council in Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 CLJ 441; [1987] CLJ (Rep) 24 where Lord Templeman had this to say about the role of a court in civil proceedings:

In civil proceedings the trial judge has no power to dictate to a litigant what evidence he should tender. In winding up proceedings the trial judge cannot refuse to read affidavits which have been properly sworn, filed and produced to him unless some opposing party has applied for the attendance for cross examination of the deponent and that application has been granted and the deponent does not attend. The court cannot give a direction about evidence unless one of the litigants desires such direction to be made. Of course a judge may indicate to a petitioner that unless he calls oral evidence or applies to cross-examine the deponents of the opposition so as to prove a