Professional Documents
Culture Documents
PLAINTIF-PLAINTIF
DAN
DEFENDAN]
KORUM:
DAVID WONG DAK WAH, JCA
UMI KALTHUM BINTI ABDUL MAJID, JCA
PRASAD SANDOSHAM ABRAHAM, JCA
1
GROUNDS OF JUDGMENT
[1]
We heard this appeal on the 15th of July 2015 and dismissed the
same on the same date. We also dismissed the cross appeal of the 2nd
respondent / 2nd plaintiff and made no order as to costs. We append
below our grounds for so doing.
[2]
[3]
younger brother of the 2nd respondent. The respondents were and are
the co-registered proprietors in equal shares of a property held under
title No.38521, Lot no 17106, Mukim Damansara, District of Petaling,
Selangor (the property).
[4]
was originally EON Bank Berhad (Eon Bank). By a vesting order dated
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17th June 2011 entered in the Kuala Lumpur High Court Originating
Summons No: 24NCC-175-2011, all the assets, rights and liabilities of
Eon Bank Berhad were vested upon the appellant.
[5]
[6]
suit.
[7]
[8]
[9]
On the facts pleaded, the taking of the loan from the defendant
was precipitated by the 2nd plaintiff getting involved with loan sharks to
assist a friend Chong Yoke Cheong (Chong), (see para 7 statement of
claim pg. 31 Rekod Rayuan, Bahagian A).
[11] The signatures on the loan documents and the charge documents
was for the loan application by the 2nd plaintiff (see para 8 pg. 37
statement of claim).
[13] Particulars of the various facilities are set out in the statement of
defence (pg. 76-77, Rekod Rayuan, Bahagian A).
[14] The 2nd plaintiff liaised with the defendant and the appointed
solicitor to attend to the creation of the charge in favour of the defendant.
[16] The defendant contends all was done bona fide and there was no
element of conspiracy and / or fraud as alleged by the 1st plaintiff.
[17] The issue of the 1st plaintiffs claim not having signed the charge
document and / or the loan document has been put into issue by the
defendant.
OUR FINDINGS
[18] The pivot of this appeal would be to convince us that the learned
Judicial Commissioner misdirected himself when finding that PW1 had
not signed the charge documents in this case and the loan document.
Having found so, the charge became defeasible under section 340 2(b)
of the National Land Code which we now set out:
Commissioner adopted the correct approach in law (see para 53, 56 &
58 of the Grounds of Judgment at page 145-146 of the Rekod Rayuan
Jilid 1).
(i)
(ii)
The evidence of PW3 and the role of one Kamarul using the
forged identity card of PW1 (P3) to identify himself as PW1
to deceive the solicitors when signing the charge documents
at their office.
(iii)
(iv)
The solicitors DW4 and DW5 were not certain whether they
had met PW1 at their office at time of attestation of the
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(v)
(3)
evidence
that
contemporaneous
was
before
documents
and
him
together
considering
with
the
all
the
[24] We also find that the correct evidential burden was applied by the
learned Judicial Commissioner in his appreciation of the evidence
tendered by the 1st plaintiff.
(1)
plaintiff's
authority
and
were
therefore
wholly
inoperative.
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[25] It is for the aforesaid reasons, as the 1st plaintiff being a coproprietor of the said Land had not signed the charge documents
creating a charge over the whole of the said land, the learned Judicial
Commissioner was correct in his findings and we would dismiss the
appeal accordingly.
[26] In the light of those findings we do not see the need to address the
issues raised in the cross appeal. As to allegations of fraud, conspiracy
and negligence, the learned Judicial Commissioner had painstakingly
gone through the evidence and dismissed the plaintiffs claim and we
find the learned Judicial Commissioner had committed no appealable
error in that regard.
[27] We therefore dismissed the appeal and the cross appeal with no
order as to costs.
Signed
[DATUK DR. PRASAD SANDOSHAM ABRAHAM]
Judge
Court of Appeal Malaysia
Putrajaya
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1. AGS Harta Sdn Bhd v. Liew Yok Yin [2010] 7 CLJ pg. 142 NB
(referred)
2. United Asian Bank v Tai Soon Heng Construction Sdn Bhd [1993] 1
MLJ pg 182 (referred)
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