JUDGMENT

Jeffrey Tan JCA:

(1) This is an appeal by the defendant/appellant against the learned judges order dated 10 March 2005. That order restrained the defendant from enforcing the securities pledged by the plaintiffs to the defendant, but was silent as to whether the injunction was interlocutory or permanent.

(2) The pertinent background facts were as follows. The defendant was a bank. The 1st plaintiff was a customer of the defendant. The 2nd plaintiff was the guarantor of the account of the 1st plaintiff. The bank and customer relationship commenced in 1996, with the acceptance by the 1st plaintiff of a credit facility of RM5 million from the defendant. That credit facility was later increased with the attendant provision of additional securities, which were (i) the guarantee of the 2nd plaintiff dated 9 July 2001, (ii) a charge over all fixed deposits and credit balances held to the credit of the 1st plaintiff by the defendant dated 9 July 2001, (iii) an undated letter of set off allowing the defendant to apply all monies held to the credit of the 1st plaintiff by the defendant in satisfaction of all monies owed by the 1st plaintiff to the defendant, (iv) an undated memorandum of deposit of fixed deposits allowing the defendant to apply the fixed deposits held to the credit of the 1st plaintiff towards sums due from the 1st plaintiff to the defendant, (v) a debenture dated 9 July 2001 of the 1st plaintiff in favour of the defendant, providing a fixed and floating charge over all the assets of the 1st plaintiff, (vi) a 1st party charge of five commercial lots in Wisma Central, Kuala Lumpur, (vii) a 1st party charge of two industrial lots in the Mukin of Ijok, Kuala Selangor, (viii) a 3rd party charge of a housing lot in Cheras, Selangor, and, (ix) a 3rd party charge of a house in Cheras, Selangor, the plaintiffs. Those were the securities that the order restrained the defendant from enforcing.

(3) All parties agreed that those securities were worth in the region of RM67 million (see 230AR and p. 1 of the written submission of the appellant) while the outstanding sum stood at RM18,346,546 at the material time (see 230AR and p. 2 of the written submission of the appellant). That outstanding sum of RM18,346,546 was incurred as a result of 105 telegraphic transfers that amounted to RM4,254,687.51 together with the interest (see 230AR and p. 2 of the written submission of the appellant).

(4) The crux of the plaintiffs claim against the defendant was that the defendant had breached the customer mandate, in that the defendant had acted on forged applications for telegraphic transfers and authorised the aforesaid 105 telegraphic transfers to companies or individuals unrelated to the 1st plaintiff. It was contended by the plaintiffs that one of the managers of the 1st plaintiff had forged the signatures of the authorised signatories on all applications for telegraphic transfers. Evidently, the claim against the defendant was not grounded on forgery by the defendant. In any event, the defendant denied all forgery on its part. The defendant contended that forgery, if any, was caused and or contributed by the plaintiffs. The defendant pointed to ss. 24 and 73A of the Bills of Exchange Act 1949. On the contrary, the plaintiffs argued that the defendant would have to prove those legal defences at the trial.

(5) It should also have been said that the claim would also have to be proved at the trial. But not all proof could be put on the back burner until the trial. In the application for the injunction, the plaintiff had to establish that there was a bona fide serious issue to be tried (Keet Gerald Francis Noel John v. Mohd Noor @ Harun Abdullah & Ors (1995) 1 CLJ 293) "and that the balance of convenience laid in favour of granting the injunction (see American Cynamid Co v. Ethicon Ltd (1975) AC 396 and Keet Gerald Francis Noel John v. Mohd Noor @ Harun Abdullah & Ors (1995) 1 CLJ 293") (Herman Ando v. Tactland Development Sdn Bh