Judgment

Ramli Ali J

1. The first defendant is appealing against the learned Senior Assistant Registrar's (SAR) decision dated September 26, 2005 which allowed the plaintiff to enter summary judgment against him.

   BRIEF FACTS

2. The plaintiff's claim against the defendants is for the sum of RM1,352,229.81 as at June 8, 2004 being the amount outstanding under an overdraft facility together with interest accrued from June 9, 2004 upon the contract rate calculated at 3.5% per annum on the plaintiff's base lending rate (or such other rate as may be varied from time to time) until the date of full settlement.

3. Pursuant to letters of offer dated September 12, 2001 and September 10, 1997 issued by the plaintiff and accepted by Strategy Powerhouse Sdn Bhd, (the borrower) the plaintiff agreed, inter alia, to grant an overdraft facility in the sum of RM800.000 to the borrower subject to the terms stated in the said letters of offer.

4. Pursuant to letters of guarantee dated September 17, 1996 and September 19, 1997, as consideration to the plaintiff granting the overdraft facility to Strategy Powerhouse Sdn Bhd, both the defendants agreed jointly and severally to pay to the plaintiff when demanded, the sum indebted by Strategy Powerhouse Sdn Bhd, in the event it fails to repay the said amount.

5. The plaintiff has provided the overdraft facility to Strategy Powerhouse Sdn Bhd and the facility has been fully utilised. Due to the default by Strategy Powerhouse Sdn Bhd to make repayment of the amount due and owing under the overdraft facility, the plaintiff filed an action in the High Court of Kuala Lumpur vide Suit No D1-22-714-2004 whereby Strategy Powerhouse Sdn Bhd was named as first defendant, the first defendant in this present action as named as second defendant and the second defendant in this present action was named as third defendant.

6. Suit No D 1-22-714-2004 was withdrawn against the first and second defendant on July 15, 2004 with liberty to file afresh. Judgment has been obtained on July 25, 2002 against Strategy Powerhouse Sdn Bhd whereby winding-up proceedings was commenced resulting in a winding-up order being made against Strategy Powerhouse Sdn Bhd. The plaintiff refiled the present action on August 4, 2004 against the first and second defendants, as guarantors.

7. Judgment in default of appearance was obtained against the second defendant on January 25, 2005. On March 10, 2005 the plaintiff filed an application for summary judgment under Order 14 of the RHC 1980 against the first defendant.

8. On September 26, 2005 the plaintiff's Order 14 application against the first defendant was allowed with costs. On October 5, 2005 the first defendant filed the present notice of appeal to the judge in chambers to appeal against the said decision of the learned SAR.

   FIRST DEFENDANT'S SUBMISSION

9. The first defendant submitted that summary judgment should not have been allowed in the present action as there are several issues to be tried.

10. The issues raised are as follows:

    1. that the plaintiff has no cause of action to obtain summary judgment against the first defendant;

    2. that the plaintiff's action is premature as the plaintiff has not sent any letters of demand to the first defendant, to demand for the outstanding amount owed by Strategy Powerhouse Sdn Bhd;

    3. that all the plaintiff's affidavits are defective as the plaintiff failed to insert the complete jurat i.e. the title of the action was not inserted into the jurat — failing to comply with Order 41 r 1(7) and (8) of the RHC 1980; and

    4. that first defendant is not liable to pay the plaintiff for the sum owed by Strategy Powerhouse Sdn Bhd, as the plaintiff has not proved that it has provided the loan to Strategy Powerhouse Sdn Bhd.

    FINDINGS OF THE COURT

11. The law of summary judgment under Order 14 of the RHC 1980 is settled. The principles to be applied has been laid down in so many authorities. In Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, the Supreme Court has laid down comprehensive principles to be adopted in cases involving applications for summary judgment under Order 14. The relevant principles are as follows:

    1. In an application under Order 14, the court has to be satisfied on affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether an issue is or is not triable depends on the facts or the law arising from each case as disclosed in the affidavit evidence before the court.

    2. Under an Order 14 application, the duly of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. Unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an Order 14 application.

    3. Where the issue raised is solely a question of law without reference to any fact or where the facts are clear and undisputed, the court should exercise its duty under Order 14. If the legal point is understood and the court is satisfied it is unarguable, the court is not prevented from granting a summary judgment merely because the question of law is at first blush of some complexity and therefore takes a little longer to understand.

12. Based on the principles, the court will analyse all the issues raised by the first defendant in the present action and to be satisfied that these issues are triable issues i.e. determination of the issues can only be made after full trial of the action. If the issues can be determined at this stage of the proceedings by way of affidavits without having to go for full trial, then, these issues cannot be used as grounds to set aside the summary judgment granted to the plaintiff by the learned SAR. Also, if the issue raised is solely a question of law or interpretation of law, then the court should exercise its discretion under Order 14 to grant summary judgment to the plaintiff. Also, if the facts are clear and undisputed then, the court can decide on these facts without having to go for full trial. It is a common practice that defendants in Order 14 applications will raise as many issues as possible for the purpose of impressing upon the court that there are issues to be tried and therefore summary judgment is not appropriate. In order for the court to exercise its discretion judicially in an Order 14 application, the court must analyse and scrutinise all the relevant affidavits, contemporary documents and other statements as well as submissions by counsels, to see whether issues raised are really triable issues.

13. Based on the above principles, the court shall now deal with the issues raised by the first defendant in the present action, to determine whether those issues or any one of them are really triable issues.

    FIRST ISSUE

    That the plaintiff has no cause of action to obtain summary judgment against the first defendant

14. On this issue, the first defendant contended that the plaintiff has no cause of action against the first defendant in view of the fact that the plaintiff had already obtained judgment in default of appearance against the second defendant who was also a guarantor to the overdraft facility on January 25, 2005. The first defendant contended that the said judgment in default was entered on "joint basis" against the second defendant as opposed to "joint and several" basis and thus the said judgment has clearly destroyed the remedy against the first defendant.

15. The first defendant admitted that the first and second defendants signed the "joint and several" guarantees dated September 17, 1996 and September 19, 1997, to act as sureties for the repayment on demand of the overdraft facilities in question. However the first defendant contended, that in the said judgment in default against the second defendant, the plaintiff has omitted to insert the words "jointly and severally". Also, there was no such insertion in the prayer to the statement of claim. On that ground the first defendant argued that the plaintiff has elected to pray judgment which is to be obtained against all the defendants on "joint basis" but not on "joint and several" basis. On that ground the first defendant argued that the said judgment in default, being on "joint basis" has destroyed the cause of action or remedy against the first defendant. The first defendant was relying on the authorities in Parr v Snell [1923] 1 KB 1 (English Court of Appeal); and 2 Malaysian High Court decisions in Asia Commercial Finance (M) Bhd v Island Rental Sdn Bhd [2002] 2 CLJ 741; and Hong Leong Bank Bhd v Percetakan Melati Sdn Bhd [2002] 4 MLJ 70 (both by the same judge: RK Nathan J).

16. The first defendant further argued that since the plaintiff has failed to make any necessary attempts to amend the statement of claim and also the judgment in default dated January 25, 2005 on or before the hearing of the Order 14 application before the learned SAR, therefore it follows that the court has no power to give an order beyond what has been prayed for by the plaintiff in its statement of claim (namely to allow the plaintiff to enter a judgment on a "joint and several" basis against the second defendant) and/or for the court to treat the said judgment in default entered against the second defendant as a judgment entered on a "joint and several" basis.

17. It is not disputed that in both the letters of guarantee dated September 17, 1996 and September 19, 1997 signed by both the first and second defendant, both of them "jointly and severally" guaranteed and agreed to pay to the plaintiff when demanded, the sum indebted by Strategy Powerhouse Sdn Bhd to the plaintiff. The title for the letters of guarantee is "JOINT AND SEVERAL GUARANTEE". The preamble to the letters of guarantee clearly provides: "we the undersigned, Chan Kim Shin (NRIC: 132xxxx) and Mukhriz Mahathir (NRIC: A xxxx999) jointly and severally guarantee payment on demand ...."

18. It is also not disputed that the plaintiff in its prayer to the statement of claim has not inserted the words "jointly or severally". The prayer only states: "The plaintiff claims against the first and second defendant ...." (without the words "jointly or severally").

19. It is also not disputed that in the said judgment in default dated January 25, 2005 against the second defendant, the words "jointly or severally" are not inserted. The said judgment only states: ".... no appearance being entered by the second defendant in this action it is this day adjudged that the second defendant do pay the plaintiff as follows ...."

20. This issue is solely a question of law. The facts related to this issue are not disputed. The court has to determine whether this issue is a triable issue or not for the purpose of the present appeal. The question is whether the plaintiff has lost its cause of action or remedy against the first defendant in view of the fact that a judgment in default has been obtained against the second defendant earlier (on January 25) 2005) as alleged by the first defendant.

21. The first defendant cited the case of Parr v Snell, supra, as authority to support his contention. In that case, it was held that if there was an action which was brought by a plaintiff against three joint contractors, for damages for breach of an agreement and if the plaintiff obtained an interlocutory judgment for damages against two out of the three defendants on a joint basis, then the cause of action against the third contractor will cease to exist. The above decision was adopted and followed by RK Nathan J in Asia Commercial Finance (M) Bhd v Island Rentals Sdn Bhd, supra, and Hong Leong Bank Bhd v Percetakan Melati Sdn Bhd, supra — both of Penang High Court). In both the cases (Asia Commercial Finance and Hong Leong Bank) the plaintiff brought an action against the guarantors, the vital words "jointly and severally" were missing from the final prayer sought by the plaintiff as well as in the judgment granted earlier to some of the defendants.

22. Parr v Snell is an action against three contractors, for damages for breach of an agreement, the plaintiff obtained an interlocutory judgment for damages, to be assessed, against two of the defendants in default of defence.

23. The plaintiff then procured an assessment of damages and signed final judgment for the assessed amount against the two defendants who were in default.

24. The facts of that case (Parr v Snell) are as follows:

    In November, 1919, the plaintiff Parr saw the following advertisement in the Daily Telegraph: "Secretary required in an established motor manufacturing company. Must invest £500. Excellent opportunity for the right man. Commencing remuneration £350 per annum. In addition to dividends on investment. Splendid prospects," Having answered the advertisement he received a reply from the Kensington Light Car, Ld, and entered into negotiation with the defendants JS Snell, R Saxon Snell, and DN Quertier who stated themselves to be directors of the company. On January 8, 1920, the plaintiff wrote agreeing to accept the position of secretary to the company, and on January 17, the defendant JS Snell wrote to him confirming an arrangement whereby the plaintiff was to act as assistant secretary to the company for four weeks before becoming a official secretary at £350 a year, subject to his investing £500 in the company. On February 1, 1920, an agreement was executed whereby the plaintiff was appointed secretary. On February 9, shares in the company to the nominal value of £500 were allotted to the plaintiff for which he paid by cheque, and the following undertaking in writing was given to him: "We JS Snell, R Saxon Snell and DN Quertier hereby undertake and agree with GC Parr, Secretary of the Kensington Light Car, Ld, that upon his relinquishing his position as Secretary to the Kensington Light Car, Ld, if he shall so desire, shall be purchased from his by a person, either appointed by us or through GC Parr, suitable to fulfill the position vacated by GC Parr, or by persons delegated by us. At a minimum rate of £1 per share, or if the market value of the shares be higher than £1 per share, then shall such shares be purchased from GC Parr at their market value. Signed: JS Snell, R Saxon Snell. DN Quertier." The plaintiff having commenced his duties as secretary, discovered that the company was a fraudulent concern promoted by the defendants Snell and that no business was being done by it. The defendant Quertier had been entrapped in a similar manner, and induced to invest 500 in shares upon being appointed mechanic at a salary of £250 a year, and director at £100 a year. Having charged the Snells with fraud he was dismissed and resigned his office of director. The plaintiff then brought this action against the Snells and Quertier claiming £500 as the agreed purchase price of his shares in the company, or, in the alternative, £500 damages for breach of the undertaking of February 9. On May 4, 1921, the plaintiff signed interlocutory judgment against the two Snells, who had disappeared without putting in any defence, for damages to be assessed. The master afterwards assessed them at £516 12s 3d, and final judgment was entered for this sum. The plaintiff then proceeded with the action against Quertier, who pleaded that he was not liable on the agreement as there was no consideration for his signing it, and contended that it was a joint, and not a joint and several agreement, and the plaintiff having recovered judgment against the Snells the cause of action against Quertier had been merged in the judgment and could not be prosecuted.

25. The trial court (Shearman J) held that the undertaking of February 9, was joint and several, that the claim was for a liquidated sum of which that there was a good consideration for the agreement between the plaintiff and Quertier (third defendant). The court therefore gave judgment for the plaintiff as prayed. The third defendant (Quertier) appealed.

26. At the Court of Appeal, Scrutton LJ applied the technical rule of law, i.e.: that where there are joint contractors if judgment is signed against one the other is discharged. In that situation, the contract is merged in the judgment and therefore the cause of action on the contract is gone.

27. Scrutton LJ further held:

    The first question here is: is this a joint contract? Because, if it is not, the technical rule does not apply. With great deference to the learned judge, it seems to me reasonably clear that this is a joint contract. The two Snells and Quertier agree that if the secretary relinquishes his position his shares shall be purchased from him by a person either appointed by them, or by persons delegated by them. That seems to me to be a contract to find a purchaser approved by the three, and to be clearly a joint and not a several contract. That being so, in this case judgment has been signed against two and the third is discharged under the technical rule in Kendall v Hamilton (1), unless there is some rule or statute which prevents the operation of the old rule.

28. It must be noted that the Court of Appeal in that case had made a finding of facts that the relevant contract entered into by the plaintiff and all the three defendants was a joint contract, after taking into consideration the nature of the undertaking given by all of them to the plaintiff. The undertaking in that case is not for payment of liquidated amount, as in the present case. The undertaking in that case is to find a purchaser to purchase the plaintiff's shares upon his relinquishing his post as secretary of company. There is no indication or evidence at all to show that the undertaking was given on a "joint and several" basis, as in our present action. Scrutton LJ provided exception to the rule i.e. "unless there is some rule or statute which prevents the operation of the old. rule".

29. One of the rules cited by the learned judge is "Order XIII - relating to judgment signed in default of appearance", where it was held:

    In Order XIII and in Order XXVII. if it is a case of a debt or liquidated demand, judgment may be signed against one for default of appearance or default of pleading, and yet the plaintiff may go on and sign judgment against the others.

30. It is also to be noted that the so a called "old rule" (as described by Scrutton LJ) still survives (in that case) as to "that class of case" i.e. for action for damages or unliquidated demand where the plaintiff is not allowed to sign final judgment against some of the defendants and yet go on against the others or other. Therefore, in that case (Parr v Snell) the Court of Appeal had rightly held that since the plaintiff's claim was not a liquidated claim (but for damages or unliquidated claim) the plaintiff cannot proceed against the remaining third defendant after final judgment had been entered against the other2 defendants. In that case, the Court of Appeal was satisfied that there was no "rule of statute" which present the operation of the "old rule".

31. From the above principles, the court understands that the said "old rule" is applicable only in cases where the contract is not a "joint contract". It is not applicable in cases where the contract is based on "joint and several" liability. The said rule is also not applicable if "there is some rule or statute which prevent it's operation". This court is also of the view that the said "old rule" does nor apply if there are agreements between the parties to exclude its operation in a particular case.

32. Back to the present action before this court, the plaintiff's claim against both the first and second defendant is based on the letters of guarantee they signed as guarantors to the overdraft facilities granted by the plaintiff to Strategy Powerhouse Sdn Bhd (where both of them were directors of the company at the material times). Both the letters of guarantee carry "joint and several" liability on both the guarantors. This was clearly stated in the letters of guarantee. Both the defendants being educated, knew about it. That was the intention of the parties to the contract. The liability is to pay for liquidated claim on demand in the event Strategy Powerhouse Sdn Bhd failed to repay the facility.

33. The words "jointly and severally" is defined as

    persons who are jointly and severally bound render themselves liable not only to a joint action against them, but also to a separate actions against them individually.

    See A Dictionary of Law, LB Curzon.

34. When the letters of guarantee provided for "joint and several" liability what they meant is that the plaintiff has a cause of action against both the defendants as guarantors not only to a joint action against them but also to a separate action against them individually. In such situation, the plaintiff can proceed with one action against both of them at the same time or 2 separate actions against both of them individually. The effect is that, either way, the cause of action against any one of them is not discharged if judgment is entered against the other one. The fact that the said judgment in default dated January 25, 2005 against the second defendant as well as the prayer in the plaintiff's statement of claim do not state or insert the words "jointly and severally" does not in any way change the position. The plaintiff's right on the cause of action against both of the defendants either jointly or individually (i.e. severally) still survives. The plaintiff can always proceed against the first defendant even though a final judgment in default had been entered against the second defendant.

35. The second reason why the rule in Parr v Snell, supra, is not applicable in the present action is that "there is some rule or statute which prevent the operation of the old rule" as highlighted by Scrutton LJ in his decision. In that case, Order XIII relating to judgment signed in default of appearance has been considered as one of those rules that "prevent the operation of the old rule". In the present case before this court, the provisions of Order 13 r 1(1) of the RHC 1980 provide the same "prevention" on the operation of the "old rule". Order 13 r 1(1) of the RHC 1980 provides:

    (1)

    Where a writ is indorsed with a claim against a defendant for a liquidated demand only, then if that defendant fails to enter an appearance, the plaintiff may, after the time limited for appearing, enter final judgment against that defendant for a sum not exceeding that claimed by the writ in respect of the demand and for costs, and proceed with the action against the other defendants, if any.

    This rule is crystal clear — that in claims involving liquidated demand, (as in the present suit) the plaintiff may enter final judgment against the defendant who fails to enter appearance for a sum not exceeding that claimed in the statement of claim in respect of the demand and for costs and at the same time to proceed with the action against the other defendant, if any. A claim is still a claim for a liquidated demand even if it contains an element of interest accruing after the date of the writ at an unspecified rate. This is provided under Order 13 rl(2) of the RHC 1980, which says:

    (2)

    A claim shall not be prevented from being treated for the purposes of this rule as a claim for a liquidated demand by reason only that part of the claim is for interest accruing after the date of the writ at an unspecified rate, but any such interest shall be computed from the date of the writ to the date of entering judgment at the rate of 8 per cent.

36. On the above considerations, the court is satisfied that this issue raised by the first defendant is not a triable issue. We don't need to go for full trial just to decide on or to determine this issue. As laid down by the Supreme Court in Bank Negara Malaysia v Mohd Ismail, supra, this issue is solely a question of law without reference to any disputed facts. If the legal point is understood and the court is satisfied it is unarguable, the court is not prevented from granting a summary judgment merely because "the question of law is at first blush of some complexity and therefore takes a little longer to understand". To decide otherwise, in the circumstances of the present case, may amount to total disregard of the real intention of the parties expressly provided in the guarantee agreements and may also be contrary to commercial reality in the banking industry.

    SECOND ISSUE

    That the plaintiff's claim is premature as the plaintiff has not sent any letter of demand to the first defendant

37. The first defendant has denied that the plaintiff has sent any letter of demand to him, to demand from him the outstanding amount owed by Strategy Powerhouse Sdn Bhd. The first defendant claimed that the plaintiff has not proved the service of the letter of demand by sending it through the post in an envelope addressed to the last known address of the first defendant. The first defendant further argued that the plaintiff has failed to state in the list of registered mails acknowledged by the postal department dated July 20, 2004 the full address of the first defendant's last known address (No 43-B, Jalan 2/71, Off Jalan Tun Mohd Fuad, Taman Tun Dr Ismail, 60000 Kuala Lumpur) and what was merely written by the plaintiff in the list was "TTDI, KL". Therefore, the first defendant argued that the plaintiff cannot rely on the deeming clause (i.e. clause 16 of the joint and several guarantee agreements) to show that it has given sufficient notice to the first defendant that the plaintiff has made demand from the first defendant of the outstanding amount owed by Strategy Powerhouse Sdn Bhd. Therefore, according to the first defendant, since the joint and several guarantee agreements have stipulated that the liabilities of the guarantors are to pay on demand, it flows that the plaintiff's action against the first defendant is premature as the plaintiff has not complied with the condition precedent to sue the first defendant.

38. Clause 16 of the guarantee agreements states that:

    Any notice or demand hereunder shall be deemed to have been sufficiently given if sent by prepaid letter post to the address last known to the Bank is stated hereon .... and shall be assumed to have reach us in the course of post.

39. The plaintiff through its solicitors, Messrs Anad & Noraini had sent a notice of demand dated July 15, 2004 to the first defendant at the address - c/o Strategy Powerhouse Sdn Bhd No 43-B, Jalan 2/71, Off Jalan Tun Mohd Fuad, Taman Tun Dr Ismail, 60000 Kuala Lumpur. The first defendant did not dispute the correctness of the address. The first defendant complained that the plaintiff has failed to state in the list of registered mails (Registered Bulk Postage) dated July 20, 2004 the full address of the first defendant, but merely states "TTDI, KL", The plaintiff exhibited the said list of registered mails in one of it's affidavit in support of the application for summary judgment, where it is stated that registered letter No: 0422 was sent to "Mukhriz b Mahathir — TTDI — KL". That letter of demand, together with 23 other letters were posted on July 20, 2004. The first defendant is saying that his full address (as stated in the letter and on the envelope) must be stated in the list of registered mails.

40. Prior to that, the plaintiff had also sent another notice of demand via ordinary post to the first defendant at the same address. In cases of this nature, it is very common that the defendant always denied having received the notice of demand and therefore claimed that the plaintiff has failed to send one to him, in order to avoid summary judgment being entered against him. By doing so, the defendant is hoping that a triable issue can be raised and the action will go for full trial.

41. What the plaintiff has to do is clearly defined in the guarantee agreements, in this case, clause 16 i.e. to send the notice of demand by prepaid post to the address last known to the plaintiff or as stated in the agreements itself. This has been done twice i.e. March 14, 2002 and July 20, 2004. Therefore, the presumption is that the said notice of demand reached the first defendant in the course of post. It is not the plaintiff's duty to ensure that the said notice after being posted, was actually received by the first defendant. The guarantee agreements do not stipulate that obligation on the part of the plaintiff. Mere denial by the first defendant to the effect that he did not receive the notice is insufficient to the rebut the said presumption, particularly in the present case, where the first defendant did not at any time dispute the correctness of the address in the notice of demand as well as on the envelope. The list of registered mails dated July 2U, 2UU4 as exhibited by the plaintiff is sufficient in the circumstances of this case, to prove that the said notice of demand was actually posted on that date, even though it just states that it was sent to "Mukhriz Mahathir, TTDI, KL". Therefore, once again, the court is satisfied that this issue raised by the first defendant is not a triable issue.

    THIRD ISSUE

    Defective affidavit — as the plaintiff failed to insert the complete jurat

42. The first defendant complained that the plaintiff's affidavits (No 1 and 25 No 2) to support it's application for summary judgment, are defective for not complying with the provisions of Order 41 r 1(7) and (8) of the RHC 1980, and therefore should be disregarded.

43. Order 41 r 1(7) provides that every affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn.

44. Order 41 r 1(8) provides that a jurat must be in one of the forms in Form 78.

45. The first defendant argued that the jurat in both the plaintiff's affidavits are not complete as the title of the present suit is not inserted into the jurat.

46. The court cannot understand how this issue can amount to a triable issue. The first defendant has not submitted on this question as to how this issue is a triable issue. He just said that the issue is a triable issue. That's all.

47. This is a very technical issue which does not affect or prejudice the interest of the first defendant in the present proceedings. This issue can always be decided and determined at the stage of summary judgment under Order 14, without having to go for full trial.

48. Order 1A of the RHC 1980 clearly stipulates that "in administering any of the rules herein the court or judge shall have regard to the justice of the particular case and not only to the technical non-compliance of any of the rules herein. The first defendant cited the case of Utama Merchant Bank Bhd v Mohd Nadzmi [2001] 2 AMR 1687; [2001] 2 CLJ 235 to support his argument on this issue. It must be noted that the said case was decided in 2001, before the coming into force of Order IA of the RHC 1980 which was inserted by the Rules of the High Court (Amendment) 2002 (PU(A) 197/2002) in 2002.

49. In argument, an affidavit may, with the leave of the court, be filed or used in evidence notwithstanding any irregularity in the form thereof. This is provided under Order 41 r 4 of the RHC 1980. In the present case, the court may use and accept the 2 affidavits as the failure to insert the title of the action in the jurat is of very little significance or consequence as the jurat is not a separate document from the affidavit sworn. (See Airmatech Corporation (M) Sdn Bhd v Equaltra (M) Sdn Bhd [2001] 2 CLJ 57).

50. Therefore, the court is satisfied that this particular issue raised by the first defendant is without merit and in no way it amounts to a triable issue.

    FOURTH ISSUE

    Plaintiff has not proved that the loan was provided to Strategy Powerhouse Sdn Bhd

51. On this issue, the first defendant argued that he is not liable to pay the plaintiff for the sum owed by Strategy Powerhouse Sdn Bhd as the plaintiff has not proved that it has provided a loan to Strategy Powerhouse Sdn Bhd on the ground that the plaintiff has failed to stamp the 2 credit facility agreements dated September 13, 1996 and September 19, 1997 respectively as required under s 52 of the Stamp Act 1949. The first defendant argued that the court should disregard the 2 agreements exhibited by the plaintiff to support it's application for summary judgment, and on that score, the first defendant argued that the plaintiff has not prove that it has given a loan to Strategy Powerhouse Sdn Bhd.

52. The first defendant did not dispute that the credit agreements were executed by Strategy Powerhouse Sdn Bhd where both the first defendant and second defendant were directors at the material times. The first defendant did not dispute that both the first and second defendant executed the guarantee agreements in respect of the said overdraft facilities granted to Strategy Powerhouse Sdn Bhd. The first defendant did not dispute that the overdraft facilities were given out and utilised by Strategy Powerhouse Sdn Bhd. The only dispute raised by the first defendant at this stage is that the credit facility agreements were not duly stamped under s 52 of the Stamp Act 1949. The first defendant did not dispute that the guarantee agreements duly executed by them were duly stamped under the said Act.

53. Section 52(1) of the Stamp Act 1949 provides:

    No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered, or authenticated by any such person or by any public officer, unless such instrument is duly stamped.

54. The above provision touches on the question of evidence. It does not in any way render the substantive transaction as void and invalid. Even though the said agreement id not to be admitted as evidence as claimed by the first defendant, that does not adversely affect the plaintiff's case against the first defendant. There are other sufficient facts or evidence as admitted and not disputed by the first defendant as highlighted above, to help the plaintiff to prove that the said overdraft facility was granted to and utilised by Strategy Powerhouse Sdn Bhd and was duly guaranteed by both the first and second defendant, as director of the company.

55. Strategy Powerhouse Sdn Bhd was wound-up pursuant to the judgment obtained on March 9, 2003. If no loan was obtained by Strategy Powerhouse as claimed by the first defendant, then surely it would not be wound-up. There is also evidence of directors circular resolution dated September 15, 1997 of Strategy Powerhouse Sdn Bhd signed by both the first and second defendants confirming that the overdraft facility has been granted and accepted by Strategy Powerhouse Sdn Bhd.

56. This issue must be an "afterthought" strategy raised by the first defendant to delay the matter as this issue has never been raised in any of his affidavits. This must be a desperate attempt by the first defendant to avoid liability under summary judgment. The court has no hesitation to hold that this particular issue is baseless and without merit. It is not a triable issue at all.

    CONCLUSION

57. Based on the above considerations, the court is satisfied that the first defendant has failed to raised any triable issue. Therefore, the decision of the learned SAR dated September 26, 2005 allowing summary judgment to be entered against the first defendant is hereby confirmed and the first defendant's appeal is dismissed with costs.

Airmatech Corporation (M) Sdn Bhd v Equaltra (M) Sdn Bhd [2001] 2 CLJ 57, HC; Asia Commercial Finance (M) Bhd v Island Rental Sdn Bhd [2002] 2 AMR 2281; [2002] 2 CLJ 741, HC; Bank Negara Malaysia v Mohd Ismail [1992] 1 MLJ 400, SC; Hong Leong Bank Bhd v Percetakan Melati Sdn Bhd [2002] 4 MLJ 70, HC; Parr v Snell [1923] 1 KB 1, CA; Utama Merchant Bank Bhd v Mohd Nadzmi [2001] 2AMR 1687; [2001] 2 CLJ 233, HC.

Rules of the High Court 1980: Ord.1A, Ord.13, Ord.14, Ord.41, Form 78

Rules of the High Court (Amendment) 2002

Stamp Act 1949: s.52

Authors and other references

LB Curzon, A Dictionary of Law

Nordina Mohd Tajudin (Anad & Noraini) for plaintiff.

Douglas Chai (Lim & Hoh) for defendant.

This decision is also being reported at [2006] 3 AMR 580.