Judgment

Abdul Wahab Patail J

1. The plaintiff Sivalingam S Ponniah is suing the defendant Bank of Commerce (M) Bhd for the recovery of 3 land titles and the sum of RM400,000 allegedly placed in safe deposit locker No 266 (the locker). The locker was rented by one S Ponniah Sinniah in 1981 for use by himself and his sons Sivalingam S Ponniah and Thiyagarajan  S Ponniah. Specifically the plaintiff alleged the sum of RM400,000 was placed in the locker by him and his father in late 1987.

2. The plaintiff instructed his solicitor V Manickarn & Partners to write on October 9, 1997 to the defendant for an explanation for these items which he alleged were missing. The solicitor's letter was posted October 24, 1997 and was received October 29, 1997. There was a series of correspondence thereafter, wherein the defendant sought time to find the relevant records which appeared to have gone missing in the course of moving its premises over the years. In 1998 the plaintiff filed this action in negligence.

3. The crux of the plaintiffs case is that the defendant on June 25, 1994 wrongfully allowed the locker to be forced open at the request of Thiyagarajan S Ponniah upon his lone assertion that the key was lost, without the plaintiff being informed; and the plaintiff has now lost 3 land titles placed in the safe and RM400,000 that he and his father had placed in the safe sometime in 1987.

4. The defendant's defence is that Thiyagarajan S Ponniah, one of the joint hirers of the locker has taken some files out of the locker without signing the register book.

5. In support of this defence the defendant called Elangovan Karapaya (DW1), an assistant manager dealing with operation of the safe deposit locker service in the defendant bank. He joined the Masjid India Road branch of the defendant bank in 1991. He gave evidence from his own knowledge and records available. He confirmed that the locker was rented by Sivalingam S Ponniah, S Ponniah Sinniah and Thiyagarajan S Ponniah in 1981. Only one key is issued to the joint hirers. He said after being informed by Thiyagarajan S Ponniah that he had lost the key, the bank had called upon the services of an expert locksmith Mr. Kanapathy from Godrej Sdn Bhd to force open the locker upon condition that Thiyagarajan S Ponniah paid the fee of RM200 charged for forcing open the safe. He said this is in accordance with condition 8 of the agreement. He said in early June 1994 he was informed by a bank clerk Ramaa Chelvi that Thiyagarajan S Ponniah, one of the joint hirers of the locker, wanted to force open the locker because he had lost the key. He said he was told they were given only one key. Therefore they had agreed to open the locker by force in the presence and with the consent of Thiyagarajan S Ponniah. 

6. The testimony of DW1 is essentially the same as a report he had made to the police on October 14, 1998 alleging that in early June 1994 Thiyagarajan S Ponniah had telephoned a bank clerk Ms Ramaa Chelvi to tell her that the key to the locker was lost and sought information on how to open the safe. She informed him that the locker could be forced open by someone from Syarikat Godrej Sdn Bhd in the presence of the hirer of the locker. It was alleged in the said report that Thiyagarajan S Ponniah agreed, including payment for the cost at RM200. An appointment to force open the locker was fixed for June 15, 1994.

7. The locker was accordingly forced open by one Mr. Kanapathy in the presence of Thiyagarajan S Ponniah on the said date at about 11.30 am. He alleged he had identified the locker to be forced open. He was present with Thiyagarajan S Ponniah when the locker was forced open by Mr. Kanapathy. After the locker was opened, he and Mr. Kanapathy left the safe deposit room, leaving Thiyagarajan S Ponniah inside. About 10 minutes later Thiyagarajan S Ponniah was seen leaving the room by Ms Ramaa Chelvi carrying some files. Upon being requested to do so, he declined to sign for the files upon the pretext to rush to put money into the parking meter but he never came back. When approached to do so on March 3, 1998 he gave the excuse that he was asked to take the things from the locker by his father, that he had been busy to sign the book, and after the death of his father, he needed to think how to sign the register book.

8. His testimony in court is to the effect that Thiyagarajan S Ponniah refused to sign the record book saying that he would discuss the matter with his lawyer before he signed the record book.

9. The defendant called Thiyagarajan S Ponniah (DW2) as a witness. He told the court that when the locker was forced open immediately upon complaint on June 25, 1994, it was in the presence of his father S Ponniah and himself. He further testified, contrary to the testimony of Elangovan (DW1), that he and his father had signed the register book. As such the testimonies of DW1 and DW2 need to be scrutinized with care before being relied upon, particularly in view of the fact that both the register book and the records relating to their hire of locker 266 are missing and could not be produced.

10. Be that as it may, it is trite law that the onus is upon the plaintiff to make out his case upon a balance of probabilities.

    USE OF SAFE DEPOSIT LOCKER

11. It is not disputed that the defendant bank operates a safe deposit service. The plaintiff testified that he did not sign any agreement with the defendant for the use of the locker. Consistent with this assertion he has commenced his action in negligence.

12. The defendant was unable to produce a signed agreement between the plaintiff and the defendant. DW1 explained that the agreement has been lost in the course of moving premises. The defendant's premises had been moved twice since 1981. 

13. He was able to produce the standard form of agreement signed with all hirers of safe deposit lockers. He referred to the document entitled "Rules for Safe Deposit Service" (the rules) at pp 28-31 of Encl. 30. Thiyagarajan S Ponniah (DW2) testified he could not remember if he signed an agreement. He said he thought he gave a specimen signature. This clearly does not mean there was no agreement. However it is not disputed that it was S Ponniah who hired the safe deposit locker for use with his sons as joint hirers. Under such joint use, all users of the same safe deposit locker would have the same rights.

14. There is no reason advanced why the bank would extend the use of a safe deposit locker to the plaintiff, his father S Ponniah and his brother Thiyagarajan, for free or without terms and conditions. Joint use of a safe deposit locker is inherently fraught with risk of eventual dispute that a bank would be unlikely to extend such use without clear terms and conditions. I find that the preponderance of probability point in the direction that the parties did enter into an agreement for the use of the safe deposit locker and that it is in the standard form. 

15. Condition 1 of the standard rules provide that a locker may be rented in joint names, in which case either of the joint hirers shall have access to the lockers unless instructions to the contrary are given in writing: 

    A Locker can be rented by a person either in his sole name or in the joint names of himself and another. In the case of a sole hirer, the hirer only, and in the case of joint hirers, either of them shall have access to the lockers, unless instructions to the contrary are given in writing.

16. There is no assertion or evidence given of any such contrary instruction being given. I conclude therefore that in accordance with Condition 1 anyone of the joint hirers had access to the locker. Access to the locker is therefore not restricted to anyone of the joint hirers.

17. I have specifically considered the possibility that a dispute may have arisen between the joint hirers, and the hirer alleging that the key is lost may have been denied by the other joint hirers the use of the single key that is issued. On the face of it, it would appear to be prudent for the defendant bank to have at the very least required all of the joint hirers to be notified of the request to force open the locker, before allowing the locker to be forced open.

18. Condition 8 deals with the event if the key is lost. It provides as follows:

    When the key of a locker is lost by a hirer, the Safe Deposit Department of the Bank should be immediately notified so that the key hole of the particular locker may be sealed. The locker will be broken open in the presence of the hirer and the contents protected by transfer to another locker if any are available. The charges for fitting up a new lock to the locker, the key of which may have been lost by the hirer, will have to be borne by the hirer.

    • Firstly, there is, unlike the proviso to condition 1, no requirement for notification to be in writing.

    • Secondly, the term used is "hirer".

    There is no proviso or qualification in condition 8 for the joint hirers. In such case the general provision of condition 1 remains applicable, that anyone of the joint hirers shall have access.

19. In other words access requires only the presence of one of the hirers, not all of them. The bank, upon being notified by a hirer that the key is lost is therefore authorized to cause the locker to be forced open, provided it does so in the presence of the hirer or anyone of them. The presence of all of the joint hirers is unnecessary because access in any case does not require the presence of all the hirers. Indeed the proviso to condition 1 places the onus upon the joint hirers to give not merely notice, but notice in writing, if access is to be other than on the single and separate basis set out in Condition 1. 

20. Having specifically contracted upon the terms of access in the event of the bank being notified by a hirer that the key is lost, the plaintiff has in effect contracted out of a claim of negligence if the defendant bank did not inform him that another joint hirer had requested for the locker to be forced open upon the grounds the key is lost. I find that the plaintiff therefore fails in his claim in negligence. 

21. It is also the plaintiffs case that he and his father had placed the sum of RM400,000 in the locker in late 1987 for the payment for a house and for shares as described in the company resolution of November 14, 1987. The conclusion above applies equally to the alleged lost of RM400,000. Since anyone of the hirers could have lone access, the disappearance of the money is not prima facie negligence of the bank, unless there is a finding that precludes all of the hirers from having taken out the funds. There is no such evidence in this case. There is no evidence adduced that the RM400,000 was in fact in the locker immediately before the locker was forced open and was missing after that. I bear in mind that the money was put into the locker not by the plaintiff alone but by the plaintiff and his father. I bear in mind also that it was not put in cross-examination of DW2 that cash of RM400,000 was not taken out by DW2 or his father.

22. I find therefore that the plaintiff has failed to discharge the onus that is upon him to show that the loss if any is in fact caused by the defendant allowing the locker to be forced open. 

Representations

G Gunaseelan and YL Hiew (G Gunaseelan & Associates) for plaintiff

MP Raja (Rostam, MP Raja & Partners) for defendant

Pala (Pala Mutu & Associates) for third party