SUIT NO: 22A BETWEEN AFFIN BANK BERHAD (25046-T)

Transcription

1 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO: 22A BETWEEN AFFIN BANK BERHAD (25046-T) (has been transferred the entire business Of BSN Commercial Bank (Malaysia) Berhad (23877-T) Pursuant to the Vesting Order dated ) PLAINTIFF AND 1. FIRUZ BIN SAIDIN (No. K/P: ) 2. SHARIFAH FATIJAH BINTI MOHD SYED NOR (No. K/P: ) DEFENDANTS JUDGMENT Mohd Zawawi Salleh J : Introduction [1] The Plaintiff in this case applied for a summary judgment pursuant to O.14 of the Rules of the High Court, 1980 ( RHC ) for the following orders: (i) a sum of RM22,359, for BBA-1 and BBA-2 as at 31 December 2010; 1

2 (ii) a sum of RM10,469, for the Bridging Loan as at 31 December 2010; (iii) interest at the rate 2.50% per annum above the Plaintiff s Base Lending Rate (the Plaintiff s Base Lending Rate presently is 6.30% per annum but subject to changes from time to time) on the Bridging Loan of RM10,469, payable from 1 January 2011 till date of full payment thereof; (iv) costs on solicitors-client basis; and (v) any further relief as this Court deems just and fit to grant. [2] After hearing the arguments both for and against, the Court granted the Plaintiff s application with costs at RM5, [3] I now set out my reasons. The Facts [4] By way of background, it is material to state the facts which give rise to the present application. [5] At the request of Arah Cipta and by Letter of Offer dated 15 January 1997, BSN had agreed to grant the following financing facilities in the sum of RM147,000, ( the 1 st Islamic Facility ): TYPE OF FACILITY LIMIT (RM) Al-Bai Bithaman Ajil 110,000,

3 Al-Mudharabah 37,000, Total 147,000, [6] Subsequently, at the application of Arah Cipta, by virtue of Letters of Offer dated 29 December 1998 and 22 October 1999, BSN had further agreed to add, reduce and vary the 1 st Islamic Facility to the extent and limit of the following revised financing facilities: Type of Facility Al-Bai Bithaman Ajil Al-Hiwalah Revolving I Al-Hiwalah Revolving II Existing (RM) Additional/ Reduced Limit (RM) Revised Limit (RM) Profit Margin Rate 110,000, (42,000,000-00) 68,000, % per annum on monthly rests - 20,000, ,000, Cost of funds+2.0% per annum - 17,000, ,000, Cost of funds+2.0% per annum [7] At this juncture, Al-Mudharabah facility in the 1 st Islamic Facility was converted into Al-Hiwalah Revolving Facility I and Al-Hiwalah Revolving Facility II. The facilities were secured by, inter alia, a joint and several Guarantee dated 27 December 1999 executed by the Defendants in which the total amount recoverable was RM105,000, only (Exhibit ABB-2) ( Guarantee 1 ). [8] On 18 December 2000, the vesting of the business (facilities) from BSN to the Plaintiff had taken place (see Vesting Order exhibited as ABB-9) ( the Vesting Order ). [9] Then, at the application of Arah Cipta again, the Plaintiff via Letter of Offer dated 17 January 2002 had agreed to the following, inter alia,: 3

4 (i) to convert Al-Hiwalah Revolving I facility to Al-Bai Bithaman Ajil ( the BBA II Facility ) and reduce the principal limit from RM20,000, to the principal limit of RM17,000, which shall constitute the purchase price in respect of the BBA II Facility; and (ii) to convert Al-Hiwalah Revolving II facility to a conventional Bridging Loan Facility and increase the principal limit from RM20,000,000-00, which had caused the total sum of the facilities granted to Arah Cipta to be RM105,270,000-00, the particulars of which are as follows: (i) Under Islamic Banking Facilities Limit (RM) Profit Rate Al-Bai Bithaman Ajil (BBA I) 68,000, % p.a. on monthly rest Al-Bai Bithaman Ajil (BBA II) 17,000, % p.a. on monthly rest Kafalah Bank Guarantee 270, % per month-min. of RM50 Bank s Selling Price (BBA I) 92,147, Bank s Selling Price (BBA II) 23,036, (ii) Under Conventional Banking Facilities Limit (RM) Profit Rate Bridging Loan 20,000, % + BLR per annum on monthly rests TOTAL 105,270, (hereinafter referred as the 2 nd Islamic Facility and the Bridging Loan ). 4

5 [10] As security for the indebtedness and all other moneys owing and payable by Arah Cipta under the Bridging Loan Facility, the Defendants had agreed to jointly and severally guarantee to the extent of RM20,000, with interests thereon (see Exhibit ABB-4) ( Guarantee 2 ). [11] Arah Cipta defaulted in servicing the repayments of the 2 nd Islamic Facility and the Bridging Loan. The Plaintiff thereafter terminated all the facilities and proceeded to realise the assets of Arah Cipta towards repaying the outstanding. However, on 13 April 2007 Arah Cipta was wound up by the Court (see Exhibit ABB-6). [12] The Plaintiff herein claimed for the outstanding under the 2 nd Islamic Facility and the Bridging Loan from the Defendants as the guarantors by virtue of Guarantee 1 and Guarantee 2, the particulars of which are as follows: (a) Bridging Loan Principal Owed and Accrued Interest from to Payment received as at Amount owing and accrued as at Interest from to Other expenses from to Balance as at RM19,479, RM7,393, (RM19,868,345-13) RM7,004, RM1,804, RM1,660, RM10,469, (b) BBA 1 Principal Owed and Accrued Payment Received RM92,147, (RM54,421,453-80) 5

6 Amount owing and accrued as at Payment received on Balance as at RM37,726, RM22,000, RM15,726, (c) BBA 2 Principal Owed and Accrued Payment Received on Amount owing and accrued as at RM23,036, (RM16,403,856-20) RM6,633, TOTAL AMOUNT OWING AND ACCRUED AS AT RM32,828, (see Exhibit ABB-7) ( the Statement of Account ). [13] This action was commenced upon the expiry of the demand letter dated 09 February 2011 issued by the Plaintiff s solicitors in which the Defendants failed to comply ( the Demand ). Purported Triable Issues [14] The Defendants resisted the claim and contested the summary judgment application. In nutshell learned counsel for the Defendants argued on eight (8) main issues: (a) that the Plaintiff has no locus standi; (b) that the Plaintiff failed to disclose the security documents dated 27 December 1999 and 17 April 2002 in verifying the facts averred in its Affidavit In Support (Enclosure 7); 6

7 (c) that the Plaintiff failed to disclose the BBA 2 Agreements to show how the sale price for BBA 2 was calculated; (d) that the Plaintiff failed to disclose a complete set of Guarantee 2; (e) that the Statement of Account in Exhibit ABB-7 was not a conclusive evidence because the Plaintiff failed to clarify how the amount in the Statement of Account is being calculated, they failed to exhibit any of proof of advertisement to show the change of interest rate as BLR was varied from time to time, the total principal owed and accrued under the facilities exceeded the total amount recoverable under Guarantee 1 and Guarantee 2 and they failed to clarify how the sum claimed for other expenses was arrived; (f) that the Plaintiff had charged interest which was against the principles of Islamic banking; (g) that the Plaintiff did not manage the account of Arah Cipta which then had jeopardized the Defendants as the guarantors; and (h) that there is no proper evidence and/or documentation to the purported realization of assets and securities of Arah Cipta. [15] That being the case, it was submitted that, this was not a proper case for summary judgment. 7

8 Plaintiff s Submissions In Reply To The Issues Raised [16] The Plaintiff denied the allegations put forth by the Defendants and on their behalf, it was submitted that: (a) the Plaintiff has a locus standi against the Defendant by reason of the Vesting Order; (b) it was not mandatory for the Plaintiff to produce the security documents herein as the Defendants were bound under the terms of Guarantee 1 and Guarantee 2 to be liable for the outstanding amount under the facilities; (c) it was further argued that the Plaintiff has provided a complete set of Guarantee 2 as in Exhibit ABB-13 and by virtue Clause 16 of Guarantee 2, the Defendants had acknowledged receipt a copy of the said document; (d) the Statement of Account was a conclusive evidence against the Defendants in respect of their indebtedness because they failed to produce any evidence to prove the calculation was wrong. A merely made bare statement was not a good defence. The Plaintiff had even exhibited the detailed breakdown on the interest imposed and on the expenses incurred in ABB-14 and ABB-15; (e) Guarantee 1 and Guarantee 2 were continuing guarantee which secured the final debt balance between Arah Cipta and the Plaintiff and as such, the aggregate amount 8

9 guaranteed, i.e. RM125,000, is more than sufficient to cover the final debt herein i.e. RM32,828,519-18; (f) the Plaintiff at all material times abided to the principles of Islamic banking and there was no interest imposed on the 2 nd Islamic Facility; (g) the Plaintiff was not required under any of the agreement to appoint any financial consultant to monitor Arah Cipta s account; and (h) the realization of Arah Cipta s assets was irrelevant herein. In any event, the Defendants guarantees shall not be effected by the said realization by reason of Clause 7.2 of Guarantee 1 and Clause 5 of Guarantee 2. Findings Of The Court [17] It is clear that the Plaintiff s cause of action was for the breach on the part of the Defendants as the guarantors under Guarantee 1 and Guarantee 2 to pay the balance outstanding under the 2 nd Islamic Facility and the Bridging Loan and arising out of that the Plaintiff filed this application. Therefore, it is for the Defendants to satisfy this Court why judgment should not be entered against them. [18] In doing so, it is not sufficient for a defendant who resists summary judgment to present only bare allegations of fact; the defendant must present evidence which lends some support to the claims he advanced. The Defendants must show that their defence is not sham defence but 9

10 one that is prima facie, raising serious issues as bona fide reasonable defence that ought to be tried (see Royal Bank v McLean [1997] A.J. No (Q.B.) at 5, Tuscon Properties v Sentry Resources [1982] A.J. No. 775 (Q.B.) at 2 and Hasil Bumi Perumahan Sdn Bhd & 5 Ors v United Malayan Banking Bhd [1994] 1 CLJ 328). [19] Mohd Azmi SCJ (as he then was) in Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 CLJ 14 (Rep); [1992] 1 CLJ 627; [1992] 1 MLJ 400 had this to say: Under an O.14 application, the duty of a Judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other on 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 as not triable. In our opinion, unless this principle is adhered to, a Judge is in no position to exercise his discretion judicially under an O.14 application. Thus, apart from identifying the issues of fact or law, the Court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue. [20] I shall now proceed to consider and examine each issue relied by the Defendants in resisting this application in turn. 10

11 No Locus Standi [21] I note that the Plaintiff had produced the Vesting Order in reply to this issue. To my mind, the Plaintiff who was clothed with the said order had the legal capacity to commence the legal action against the Defendants. Furthermore, s. 50(3) of the Banking And Financial Institutions Act, 1989 (Act 372) provides: Where the order of the High Court under subsection (1) provides for the transfer of any property or business vested in or held by the transferor, either alone or jointly with any other person, then, by virtue of the order, that property or business shall, on and from the transfer date, become vested in or held by the transferee either alone or, as the case may be, jointly with such other person, and the order shall have effect according to its terms notwithstanding anything in any law or in any rule of law, and shall be binding on any person thereby affected, regardless that the person so affected is not a party to the proceedings under this section or any other related proceedings, or had no notice of the proceedings under this section or of other related proceedings. [22] The Defendants in this case, however, were aware of the change of entity when they had since December 2000 been corresponding with the Plaintiff (see Exhibit FS-6). On that premise, it is my considered view; the issue raised was not meritious. 11

12 No Securities Documents dated 27 December 1999 and 17 April 2002 [23] To my mind, the relevant issue here is not whether the Defendants were in breach of the Facilities Agreements but whether their duty as the guarantors to the 2 nd Islamic facility and the Bridging Loan had been violated. [24] In that situation, it would not have been reasonable to expect the Plaintiff to produce all the securities documents which were only relevant to the case between the Plaintiff and Arah Cipta. For me, Guarantee 1 and Guarantee 2 and other existing documentations put forth by the Plaintiff in support of their case herein are more than sufficient to prove their case. Furthermore, the Defendants have never denied its execution neither its existence. On this ground alone, this defence should fail. No Explanation On How The Sale Price In BBA 2 Was Calculated [25] Again, this is not a relevant issue. This Court is of the considered opinion that this is not a proper quorum for the Defendants, at this later stage, to persuade this Court to hold an inquiry towards the price which had been long contractually agreed by the Plaintiff and Arah Cipta. The obligation of the Defendants was merely to indemnify the Plaintiff against all amounts which were due under the 2 nd Islamic Facility and the Bridging Loan arising out of the failure on the part of Arah Cipta to perform its obligation under the said facility and loan (see Clause 1.1 and 1.2 of Guarantee 1 and Clause 1 of Guarantee 2). Despite of that, it is not odd to have an increased sale price in a BBA transaction in comparison to the purchase price. As long as it has been mutually and freely agreed by the parties, they are bound to it (see CIMB Islamic 12

13 Bank Bhd v LCL Corporation Bhd & Anor [2011] 7 CLJ 594 for general discussion on BBA transaction). No Conclusive Statement Of Account [26] As regards this issue, it is expedient for this Court to reproduce the relevant part in Guarantee 1 and Guarantee 2 as follows: Clause 17 of Guarantee 1 reads: A statement of account in writing or Certificate of Indebtedness duly certified by any of the authorised officers of the Bank showing the indebtedness of the Customer or any judgment recovered by the Bank against the Customer in respect of such indebtedness shall be binding and conclusive evidence against the Guarantors in all courts of law and elsewhere. Clause 9 of Guarantee 1 provides: A statement signed by your manager, assistant manager, secretary or any one of your officers as to the monies and liabilities for the time being due or incurred to you from or by the Customer shall be final and conclusive evidence against me/us for all purpose. [27] The above provisions show nothing but the agreement between the parties to the use of conclusive evidence in the Certificate of Indebtedness or Statement of Account and therefore contractually bound by it. The legal position of this matter is well expounded in the Federal 13

14 Court case of Cempaka Finance Bhd v Ho Lai Yin (Berniaga Atas Nama K.H. Trading) Kor Toong Khoon [2006] 3 CLJ 544; [2006] 2 MLJ 685. [28] This Court is entirely satisfied with the explanation given by the Plaintiff in response to this issue as the points raised by the Defendants under this issue do not impress me to rule in their favour. Therefore, the Statement of Account produced herein was final and conclusive evidence against the Defendants. The Plaintiff Had Not Complied With Shariah By Imposing Interest [29] According to the Defendants, the Plaintiff had blatantly imposed Penalty Interest, Acquired Interest, Penalty Interest On Interest Recovered (under banking code-laz/lly) and Interest Accrual (under banking code LAP/LAI) against the BBA 2 Facility (see Statements of Account in Exhibit FS-5 and official letters from the Plaintiff in Exhibit FS- 6). [30] The explanation given by the Plaintiff was that at the material time when the Islamic facilities were granted to Arah Cipta, they were in infancy stage and were handled by one department of the Plaintiff s Bank. Internal banking terminology had at that time not changed from conventional terminologies yet. Conventional terminologies were as such utilised to refer to Islamic aspects of Islamic facilities until that department grew. Hence the terminology found in Exhibit FS-5, FS-6 and FS-7 had not reflected Islamic percepts/terms. Despite of that, the amount outstanding for the purpose of the present application was 14

15 correct and in accordance with the terms and conditions of the relevant agreements. [31] It is important to note that in this situation, the only document relevant to prove the Defendants indebtedness is the Statement of Account in ABB-7 which this Court has ruled as conclusive evidence against the Defendants. Even if this Court were to accept the Defendants argument, it is still insufficient to create a doubt to the Statement of Account put forth by the Plaintiff which, in my considered view, is free from element of riba on the surface of it. For me, the Plaintiff had amply justified the Court for the use of the conventional terms in the respective documents and the amount imposed was in accordance with the agreements. Failure Of The Plaintiff To Properly Manage The Account & To Produce Evidence On The Realization Of Arah Cipta s Assets [32] In the circumstances of this case, it would not be necessary for this Court to consider in details on these two final issues. No evidence was presented by the Defendants which could lend some support to the first claim. As for the second claim, this Court is agreeable with learned Plaintiff s solicitors that it was an irrelevant issue which, in any event, the Defendants s guarantee shall not be affected by the realization of Arah Cipta s securities. This was expounded in Clause 7.2 of Guarantee 1 and Clause 5 of Guarantee 2. 15

16 Conclusion [33] Based on the above, this Court is of the considered opinion that there is barren of any evidence adduced by the Defendants which could strongly persuade this Court for a full blown trial. [34] What is clear, to my mind, looking at the matter broadly, including the statement of defence filed by the Defendants (Enclosure 5) and their affidavit in reply (Enclosure 8), the Defendants tried to escape liability by constructing technical issues which that alone are not sufficient to meet the burden imposed on them. [35] The Defendants in this case were, at all material times, the directors of Arah Cipta. They seemed to be very well versed in the transactions that took place between the Plaintiff and Arah Cipta and the nature of the facilities granted to the company. [36] The facilities and the loan granted by the Plaintiff were not for small projects undertaken by Arah Cipta and it involved not a small amount of monies. The 1 st Defendant, for example, had been involved in the above transactions since the day one in which Arah Cipta applied for the financial assistance from BSN. Furthermore, the letters of offers issued by the Plaintiff shown that they were all accepted by him on behalf of Arah Cipta as the authorized signatory. Therefore, this Court is unable to understand the reason behind the issues put forth by the Defendants after almost 10 years of standing as the guarantors for the 2 nd Islamic Facility and the Bridging Loan granted by the Plaintiff. 16

17 [37] For the reasons I have given, I allowed this application with costs at RM5, Dated: 9 DECEMBER 2011 (DATO HAJI MOHD ZAWAWI BIN SALLEH) JUDGE HIGH COURT MALAYA KUALA LUMPUR For the Plaintiff : Dahlia W M Lee (Lim Jin Shawn and Xara Othman with her) Messrs Jagjit Singh Lee & Co Kuala Lumpur For the Defendants : SK Liow Messrs Liow & Co Selangor 17