WA-22NCC-347-06/2019 (Mahkamah Tinggi)

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR SUIT NO.: WA-22NCC-347-06/2019 BETWEEN BAJA NIAGA SDN BHD (COMPANY NO.: 105121-P) ... PLAINTIFF AND FELCRA NIAGA SDN BHD (COMPANY NO.: 470602-W) ... DEFENDANT JUDGMENT Introduction 1. The Plaintiff had filed this claim seeking an amount of . RM4,138,780.60 and interest of RM512,620.38 for having supplied various types of fertilisers to the Defendant in the year 2018. Page 1 of 68 Through its Statement of Defence, the Defendant denies any liability to the Plaintiff and pleads that it is entitled to set off a larger amount due to it from the Plaintiff as late delivery penalty in the amount of RM58,925,745.00. As such, the Defendant mounts a counter claim for this amount or alternatively the amount of RM54,891,964.40 after setting off the principal amount owed to the Plaintiff. A full trial was conducted over several days throughout 2021 physically in open Court with the Plaintiff producing 2 witnesses and the Defendant 7 witnesses. The Court takes this opportunity to thank both learned Counsel for having conducted themselves professionally and courteously to each other at all times during the proceedings and always adhering to the various timelines set by Court. Their comprehensive written submissions have also greatly assisted me in navigating the ~ evidence and issues to be decided in arriving at my decision. Page 2 of 68 ’ 5. — | will in this Judgment narrate the facts, set out what parties have agreed are the issues to be tried/decided and to thereafter analyse the evidence adduced both oral and documentary to determine if the parties have succeeded in discharging the burden of proving their claim and counterclaim respectively. The Background Facts 6. |The Defendant is a fertilizer manufacturer and will regularly need to source three components of fertilizers and to supply the same to its plantations all over Malaysia. The Plaintiff is in the business of producing and supplying such components and the parties have been transacting for several years. 7. On 9" November 2017, the Plaintiff had submitted a tender to the Defendant to supply and deliver goods to the Defendanit’s warehouses with such tender known as TFN32/2017. This letter appears at page 15 of Bundle B1 and as its significance will become apparent later in relation to a disputed issue, the same is reproduced here:- Page 3 of 68 cy DN 2ej2 Maga Sdu. Bhd. (6st 21F) Medea, Porat: Perdagengaa Kota Damanzaa, No.12, Jalan PU Sf1, Kote Damansara, 47810! Petatlng Jays Selangor Carul thean, Tely-O2-7686 8900 trates ‘Ularna) Fase-03-7 686 8905 Emeb-bebeakegeSalmcom Tarik: OShb. November 2017 FELCRA NIAGA SDN. BHD No.16, Jalan Usahawan 5, Kawasan Perusahaan Setapak, OffJalan Genting Klang, $3200 Setapak Kuala Lumpur Tuan, SEBUTHARGA MEMBEKAL DAN MENGHANTAR BAJA TEMPATAN SECARA EX-LADANG KE LADANG-LADANG FELCRA BERHAD BAGI PUSINGAN 1/2018 NO.TAWARAN : TEN. 32/2047 Dengan segala hormatnya perkara di atas adalah dirujuk. Bersama-sama ini dikernbalikan borang sebutharge beserta harga tawaran dan lairdain dokumen berkaitan untuk tindakan pihak tuan selanjutnya. Juga dilampirkan sekeping bankderaf RHB = 910590 bernilat RM 20,000.00 ( Ringgit Malaysia : Oua Puluh Ribu Sahaja } sebagal tender deposit sebagaimana disyaratkan oleh pihak tuan. Untuk makluman tuan tawaren kam adalah tertakluk kepada FIAM Uniform Terms and Canditlons kecuall tempoh sah selama satu (1) minggu dan sebagal tambahan tanya juga tertaktuk kepade kKdausa seperti berikut Cukal, dutl dan permit import Taweren ini adalah berdasarkan kepada peraturan keralaan dan/atau pihek berkuasa berkattan yang sedia adaseklranya kos barangen meningkat disebabkan perubahan oeraturan tanpa had, cukal, duti danfatau eksais atau caf pelabuhan atau surcaj yang dikenakan oleh mana-mana kerajean dan/atau pihak berkuasa berkgitan semasa tempoh penghantaran, kenalkan hendaldah ditanggung oleh pembell, Akhir sekali kemi berharap fanya dalam penerimaan di pthak tuan. Sektan teria Kasih, Page 4 of 68 10. 11. It will be immediately become apparent that the Plaintiff had expressly stated that their offer was subject to the FIAM uniform terms and conditions which the Plaintiff had annexed to this letter. The significance of such FIAM terms is the provision in Clause 7 therein of payment terms of not more than 60 days of delivery and the suppliers right to impose late payment charges of 1% per month. The parties then have a negotiation meeting on the 12° December 2017 where the pricing is negotiated. This appears at pages 45 to 49 at B1 and | have noted that in those minutes, time for delivery is prescribed as December 2017 to February 2018/ April to June 2018. Next comes a letter 6 days later from the Defendant dated 18th December 2017 with an invite to the plaintiff to attend the Defendants offices to sign an Akuan Penerimaan Tawaran. The Plaintiff duly attends the Defendant's offices and the Akuan Penerimaan Tawaran is executed. As with the tender letter, as this Akuan Penerimaan Tawaran is of significance, the same is produced in its entirety:- Page 5 of 68 ine 9 470602.) re cscucaret am FSB atuk PENUH FELCRASERHAD) Fer BAGS - ead: wine FLORA tag Sin Be fsa Fplera BAJA NIAGA SDN BHO le - M-JA-1, PUSAT PERDAGANGAN KOTA DAMANSARA [E1034 guaran sd NO. 12, JALAN PJU 5/1, KOTADAMANSARA Tyan “W8/tUO017 47840 PETALING JAYA, SELANGOR wlan, FNSB(00062)-KFNO02/2018 - Kotdoen, MUP 127/2017 tb Pojahot FELCRA Bothag ' FELCRA NIAGA Wisma Betery, Lol PY 4769 oo Jalan Rejang, Setopak Jaye AKUAN PENERIMAAN TAWARAN " MEMBEKAL DAN MENGHANTAR BAJA TUNGGAL SECARA EX-GUDANG KE GUDANG-GUDANG FELCRA NIAGA SDN BHD BAGI PUS, 1/2018 NAMA PROJEK: NO, KONTRAK KFNO002/2018 Manik kopade lawaran lersdbut di atas, sdaish dimaliumian bahawa FELGRA Ninga Sis, Bhd. horsotye: monerime tawaran tain {Harge fawaran asatharga tawacwn ruccingan) pata kadatsader barge yang terters di asca sebelah surat intlempran di alag aya Syatal paruntuken dan sinulad yang todandung dalam Perjaajian Kontak, syarat-syoral penentuan-penentuan, Akuan Pererimean ‘Tasiocan it dan ke semua dokumen dokumen tein somn ada dinguk sean khysas él sind atau sobsllinys secars manyelurh dingu« sebagai “Dakumon Kontrakt yang moniad’ kontrakin, 2 Noi Kontak . RM 45.982,098.00 3, Twine 2512/2017 | ° 4 Tork Stop so/ogiz048 | . 5 Wa Cagsron Kesutamosan Kenia RM 399,574.98 € Sta serahlan cagatan inf kepada PELCRA Ninga Sci. Bhd. solewatlewatnye annpat belas 44} had dad task menerima . (awaran atau sobalum daripada tavikh muta kerr bebalevperkhidmatan. Kegagalan tuan monperahkan cagaran tersebul pada sempoh yang distaphas, PELCRA Niaga Seo Bhd. boteh membalgkan towaran in. 6 — Olmallumkan joga banawa luan adalh dikoherdalé menyeratikan kepads FELCRA Niega Sis. Bhd. ke semus pote! ingurats sobagomany yang dientuken ofeh peruntuken kootak ini sebolum menwlskan sebsrang lenis hededbohntan/perhidmatan . bereabl dengan konteak ini, 7. Kugntti Gan tempon pembexelan sabengr bag: kocdrak bekalan adalah sebagaimans yang cinyalakon datary Bacang Pesaran Temoatan yang dikeksarton dan savtiasa ke semasa, Yorg Eonar SHANA ET Ua? NOORDIN Segath Unin Pengatah Urusan TELERA nage Son Bt AKUAN TERIMA OLER KONTRAKTOR Batwa parandstangan di bannh ini mengaky telah meneiing sesainan Akuan Perodmass Tawaran largest disias, Peagrdelangen borsatedy eetanhinpa bohawe Aluan Pentrmiaas Tanurat Wi herdaldan dinea dan dintken sebegy esbahagier dadzade Honirah tosses dan . genatdolangan bocwshtu seeryuinys backeraan cagaran tesalaminten Kontak tocabel alan mented kanaphayat daa akan dtayer oah ponaratangas hepgtla FELCEA Nisa Scie. Bnd. vattaupan jan artatinsyn ganged monandotanent dokumen Pedingan Kowa, a : {TarcteedeeaNeReY Bin KHAMIS Nava: PENGUAUS BESAR OPERAS? sO : dawalan FELORA NIAGA SON BHO ing ongson Eau ESAS Page 6 of 68 12. 13. lt will become apparent later in this judgment that it is significant to note that the same tender is now described as No. Kontrak KFNO02/2018 and that it refers to a total value of RM15,982,998.00 and that it describes a “tarikh mula” as 25" December 2017 and “tarikh siap” as 30" September 2018. Clause 7 therein also provides that the quantity and time for deliveries shall be those as stated in the Purchase orders that will be issued from time to time. There is no dispute that both parties signed this document dated 18" December 2017. The problem then begins with a highly disputed fact arising in this case. It is the Defendant's contention that three days after the execution of the above akuan penerimaan tawaran, both parties executed a formal contract dated 215t December 2017 as appearing at pages 43 to 66 of Bundle B3. The Plaintiff contends that it never executed the said contract and only saw it for the first time in the course of these proceedings when it was annexed as an exhibit to an affidavit in support of an application by the Defendant in Enclosure 7 for Summary Judgment of its counterclaim. For the record, | had dismissed such application by the Defendant in Enclosure 7 in September 2020. Page 7 of 68 14. 15. 16. The authenticity and existence (or otherwise) of this agreement is indeed significant as from its pleadings, the Defendant's counterclaim is pivoted on the same and the fact that it contains an express clause that the Plaintiff is liable to pay a penalty of RM25 per metric ton for each day of late delivery. Thereafter, the Defendant issued 9 purchase orders (“PO”) to the Plaintiff. They are all dated 29° December 2017. The Plaintiff contends that they were all only emailed to the Plaintiff on the 4" January 2018. On the same dayi.e. 4 January 2018, the Defendant emailed an invite for the Plaintiff to supply GU to Lahad Datu which the Plaintiff duly did and this led to the issuance of a 10" PO dated 15" January 2018. Under the first nine purchase orders, the Plaintiff was to deliver and supply the GAC, GDP and GU fertilizer components within 14 days by 12" January 2018, as shown in Table 1 below:- TABLE 1 B17/PO-0107 6,300 12.1.2018 B17/PO0-0109 700 12.1.2018 C17/PO-0069 5,420 12.1.2018 C17/PO-0070 900 12.1.2018 Page 8 of 68 17. 18. E17/PO-0460 7,500 12.1.2018 E17/PO-0461 270 12.1.2018 F17/PO-0143 180 12.1.2018 Fi7/P0-0144. | 50 42.1.2018 F17/PO-0145 2,800 12.1.2018 TOTAL 18,120 Under the tenth purchase order, the Plaintiff was to deliver and supply the GAC, GDP and GU fertilizer components within 14 days by 18" January 2018, as shown in Table 2 below:- TABLE 2 It is not disputed that the first 9 PO’s dated 29!" December 2017 stated therein that the goods were to be delivered on or before 42h January 2018. The 10" PO dated 15'" January 2018 stated that the goods therein were required by the 18" January 2018. Of importance is that in all the 10 PO’s, it was expressly stated that the said PO is cancelled if not delivered on or before the said delivery date stipulated. Page 9 of 68 19. 20. 21. 22. It is also not disputed that the Plaintiff thereafter in the following months had sent deliveries to the Defendant pursuant to the said PO’s but had not supplied fully the quantities as requested in the said PO’s. The Plaintiff has produced the invoices and delivery notes which will reveal that they delivered fertiliser continuously in respect of the said PO’s right up to May 2018 and that the same deliveries were accepted by the Defendant. Thereafter, vide a letter dated 2"4 March 2018, the Defendant issued a letter to the Plaintiff requesting a meeting on 6" March 2018 for a discussion on the status of deliveries under the contract. The Plaintiff attends this meeting on 6/3/18 (hereinafter referred to as the “4st meeting’). The Defendant then issued a letier dated 9" April 2018 with a reminder on delay of delivery. This is then followed by another letter from the Defendant dated 13" April 2018 requesting a second meeting on 18" April 2018 to . discuss the status of deliveries. At this point, the Defendant owed monies to the Plaintiff from a previous contract (KFN004/2017). SP- 1 testified that at the meeting on 18" April 2018 (hereinafter referred Page 10 of 68 23. 24. 25. to as the “2"4 meeting”), the Plaintiff had provided the Defendant with an update on shipment deliveries and also reminded the Defendant of the outstanding sums owing which the Defendant was informed was causing problems to the Plaintiff in continuing supply to the Defendant for the current contract. This second meeting is then followed by certain emails between the Defendant and one Agromate Sdn Bhd on delivery updates. Agromate Sdn Bhd was the supplier to the Plaintiff for its contract with the Defendant and its marketing manager had also testified for the Plaintiff as SP-2. In the meantime, as the Defendant had not paid the Plaintiff outstanding sums owed since 2017, the Plaintiff issued the Defendant a letter dated 4° June 2018 highlighting the same and that due to this, informed that they were unable to pay their supplier and as a result, the balance deliveries for 2018 had to be stopped. As no payment was forthcoming from the Defendant, the Plaintiff then issues a letter dated 25" July 2018 informing that they were terminating contract KFNO002/201 8 due to non-payment of its debts. Page 11 of 68 26. 27. 28. The Defendant then issued a letter dated 6" August 2018 whereby it informed the Plaintiff that since they have failed to abide by their delivery obligations, the contract will be terminated if terms not complied with within 7 days. The Plaintiff then responds to the said letter via their letter date 21S August 2018 expressing their regret and enclosing thereto a detailed account and the outstanding invoices of the sums owing under the previous contract and the current contract. lt is not disputed that the Defendant thereafter made payments to the Plaintiff. They had in fact on 25" October 2018 paid a sum of RM299,412.90 as full settlement of the previous contract. The statement of accounts produced at pages 83 to 85 of B3 will reveal that the Defendant had made further payments in the months of November 2018, December 2018, January 2019 and April 2019 in excess of a million ringgit towards the outstanding sum due under the current contract KFN 002/2018. This is then followed by a letter from the Defendant to the Plaintiff dated 13" February 2019 informing that they will not be paying the late payment interest (LPI) of RM482,630.46 as at 31% January 2019 as it was not a term contained in the contract. The Plaintiff replies Page 12 of 68 by stating that LPI is indeed chargeable as payments were not made within 60 days of delivery. 29. Things then seem to quieten down with the Defendant making a further payment RM261,555.00 on 17" April 2019. The Plaintiff then through their solicitors issue a Letter of Demand (“LOD”) dated 2™ May 2019. 5 days later, the Defendant sends a letter of demand claiming a sum of RM62,290,995 as penalty for late delivery. The Plaintiff responds vide its letter dated 24° May 2019 stating that it had always abided by the deliveries as ordered as amended and setting out certain facts correctly therein. 30. The Plaintiff then commences this suit on 25" June 2019. The Trial 31. At the trial, the following witnesses testified:- I. The Plaintiff produced two witnesses: (a) PW-1 - Zahariah Binti Zamri. She is the Executive Director of the Plaintiff; and Page 13 of 68 (b) PW-2 - Choo Kin Chong. He is the Senior Regional Marketing Manager in Agromate (M) Sdn Bhd. The Defendant produced seven witnesses: (a) DW-1 - Shahaizri Bin Md Noordin. He was the Defendant's former director; (b) DW-2 - Huzairy Bin Khamis. He is the Defendant’s General Manager ; (c) DW-3 - Mohd Saidin Bin Ngadimin. He is the Defendant’s Senior Manager in charge of the warehouse; (d) DW-4 - Mohamad Nashrik Bin Suhaimy. He is the Defendants Manager in charge of operations; Page 14 of 68 (e) DW-5 - Nurazeeha Binti Anmad. She is the Defendani’s Manager in charge of procurement; (f) DW-6 - Mazni Binti Mohd Said. She is the Defendant's Head of Finance; and (g) DW-7 - Fatin Syaheera Binti Yahya. She is the Defendant's Senior Manager in charge of procurement. The Issues to be tried 32. 33. Prior to the commencement of trial, both parties were unable to agree on common issues to be tried and had filed separately what they perceived to be the issues to be tried in their respective cases However, through their respective written submissions, they appear to have agreed that the following are the 5 issues that require determination:- Page 15 of 68 (a) was there a binding contract between the Plaintiff and Defendant?; (b) did the Plaintiff deliver all the GAC, GDP and GU fertilizer components to the Defendant as ordered within the new deadlines?; (c) whether the Defendant is entitled to claim late delivery charges? If yes, how much?; (d) whether the Defendant is bound by the Uniform Terms And Conditions For Supply Of Fertilizer by the Fertilizer Industry Association Malaysia or known as FIAM?; and (e) whether the Plaintiff could impose interest on late payment ? 34. | now propose to analyse the evidence and submissions on each of the issues above. Page 16 of 68 ISSUE 1 - WAS THERE A BINDING CONTRACT BETWEEN THE PARTIES? 35. 36. 37. 38. Off the bat, this issue is easily answered in the affirmative. Based on the narrated facts above, there is no dispute that there indeed was a binding contract. Both parties in fact concede this. The real issue is which/what was the contract and the terms that bound the parties? On the one hand, itis the Plaintiff's position that the applicable terms are the FIAM terms. If correct, this would mean that the answer to issue 5 must be answered in the affirmative as the FIAM terms expressly provided for late payment interest. On the other hand, the Defendant submits that the terms of the contract were those as contained in the tender documents AND the impugned agreement dated 21st December 2017. The Plaintiff submits that the basis of its contention that the FIAM terms are applicable are manifold. In this regard, it is submitted that for the previous tender which led to the earlier contract KFN004/2017, the same was based on the FIAM terms. Reliance is Page 17 of 68 placed on the decision in the case of Popular Industries Limited v Eastern Garment manufacturing Sdn Bhd [1989] (3) MLJ 360 where Edgar Joseph Jr J had held as follows in regards to previous course of dealings between parties:- “In my view, in considering the alternative defence, it is important to have regard to the previous course of dealings between the parties. In other words, the 26 contracts sued on fall fo be construed in the general context of the parties’ transactions rather than as separate documents in isolation. ! am supported in this by certain passages in the judgment of Lord Denning in Amalgamated Investment v Texas Commerce [1981] 3 All ER 577 at p 583 wherein he deals succintly with the matter of how a course of dealing can give rise to legal obligation; this is how he put it: Although subsequent conduct cannot be used for the purpose of interpreting a contract retrospectively, yet it is often convincing evidence of a course of dealing after it. There are many cases to show that a course of dealing may give rise to legal obligations. It may be used to complete a contract which — would otherwise be incomplete: see Brogden v Metropolitan Railway (1877) 2 App Cas 666 at 682 per Lord Hatherley. It may be used so as fo introduce terms and conditions into a contract which would not otherwise be there: see J Spurling Ltd v Bradshaw [1956] 2 All ER 121; [1956] 1 WLR 461 and - Henry Kendall & Sons (a firm) v William Lillico & Sons [1966] 7 All ER 309 at 322; [1966] 1 WLR 287 327-329; [1968] 2 All ER 444 at 308, 316, CA; [1969] 2 AC 31 at 462, 474-4765, 481at 90104113 (per Lord Morris, Lord Guest and Lord Pearce in the House of Lords all disapproving the dictum of Page 18 of 68 Lord Devlin in McCutcheon v David Macbrayne Ltd [1964] 1 All ER 430 at 437; [1964] 1 WLR 125 at 134) and Hollier v Rambler Motors Ltd [1972] 1 All ER 399 at 403-404; [1972] 2 QB 71 at 77-78 per Saimon LJ. If it can be used fo introduce terms which were not already there, it must also be available to add to, or vary, terms which are there already, or to interpret them. If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it, on the faith of which each of them to the knowledge of the other acts and conducts their mutual affairs, they are bound by that interpretation just as if they had written it down as being a variation of contract. There is no need to inquire whether their particular interpretation is correct or not, or whether they were mistaken or not, or whether they had in mind the original terms or not. Suffice it that they have, by the course of dealing, put their own interpretation on their contract, and cannot be allowed fo go back on it. To use the phrase of Latham CJ and Dixon J in the Australian High Court in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 the parties by their course of dealing adopted a ‘conventional basis’ for the governance of the relations between them, and are bound by it. | care not whether this is put as an agreed variation of the contract or as a species of estoppel. They are bound by the ‘conventional basis’ on which they conducted their affairs. The reason is because it would be altogether unjust to allow either party to insist on the strict interpretation of the original terms of the contract when it would be inequitable to do so, having regard to dealings which have taken place between the parties. That is the principle on which we acted in Crabb v Arun District Council [1975] 3 All ER 865; [1976] Ch 179 It is particularly appropriate here where the judges differ as to what is the correct interpretation of the terms of the guarantee. Page 19 of 68 39. The trial judge interpreted it one way. We interpret it in another way. It is only fair and just that the difference should be solved by the course of dealing, by the interpretation which the parties themselves put on it and on which they have conducted their affairs for years. Now, between 1963 and mid-1979, when the disputes between the parties arose, the format of the contracts used by the parties, was the same as that sued on.” Secondly, the Plaintiff also relies on the sequence of events in November/December 2017 to support its contention that such FIAM terms apply. In this regard, the Plaintiff submits that the tender offer from the Defendant was an invitation to treat. It was then the Plaintiff who made the offer vide its letter dated 9'" November 2017 which as we have seen above expressly states that the same is subject to the FIAM terms. Such offer was then accepted by the Defendant vide the “Akuan Penerimaan Tawaran” dated 18" December 2017. The fact of the Plaintiff's offer and acceptance by the Defendant on 18" December 2017 is in fact conceded by the Defendant in their written submissions. Since the Defendant’s acceptance stated that it was accepting the Plaintiff's offer and no disqualification was made in relation to the applicability (or otherwise) of the FIAM terms, the Plaintiff submits that this effectively meant that they were accepted and thus the FIAM terms applied. Page 20 of 68 40. Al. On the contrary, the Defendant submits that the terms of the contract are those as contained:in the tender documents and the impugned agreement dated 21% December 2017. The Defendant submits at paragraph 60 of their written submissions that a binding contract was concluded based on the tender acceptance. However, they also go on to further submit that after the contract was concluded, the parties had executed the impugned agreement dated 215 December 2017. In my view, the starting point has to be the tender documents itself. There is no dispute that the Plaintiff had the opportunity to collect the entire tender documents titled TFN 32/2017 which consisted of several documents such as:- (a) Notes of Conditions of Fertilizers; (b) Particulars of Tender Deposit; (c) Particulars of Tenderer; (d) Bill of Quantity; (e) Specification of Fertilizer; (f) Tender Notice; (g) Instructions and Notes On Tender; (h) Conditions of Contract; and (i) | Technical Specifications. Page 21 of 68 42. 43. Of significance in my view is that in Document No. 3 on the conditions of contract, it is expressly stated in Clause 4(v) therein that the tender notice, instruction and forms shall be read and construed as forming part of the Contract Document. Sub clause (vi) then provides that unless and until a formal agreement is prepared and executed, the tender documents together with the Defendant's written acceptance shall constitute a binding contract. In my considered view, whilst the Plaintiff may very well have made reference to the FIAM terms and conditions in their cover letter dated 9" November 2017, the fact remains that no mention is made to the FIAM terms in either the tender documents nor in the Akuan Penerimaan Tawaran. I|n fact, in the said akuan penerimaan, no reference is made to the Plaintiff's letter dated 9!" November 2017. Further, | have noted from the opening paragraph of the said Akuan that it states that the Defendant “seftuju menerima tawaran tuan (harga tawaran asal/ harga tawaran rundingan) pada kadar kadar n harga...... . Page 22 of 68 44. 45. 46. Further, it has not escaped my attention that in the tender forms itself, it is stipulated at Clause 9 in Document 2 that tenderers are not allowed to make any cancellation or changes to their entries. Similarly, in various other parts of the tender documents, it is expressly stipulated that suppliers are to strictly abide by the Defendant’s terms and not any other terms. Further, as highlighted above, the parties had met and conducted negotiations on the 12'° December 2017 whereby no mention nor agreement was reached on the applicability of the FIAM terms and conditions. Under all the circumstances, | am not persuaded that there was an unequivocal or unconditional acceptance by the Defendant to be bound by the FIAM terms. In this regard, the Defendant relies on the decision of Mahabuilders Berhad v Hotel Rasa Sayang Sdn Bhd [2014] 4 MLRH 95, where the High Court referred to Pollock and Mulla on the Indian Contract And Specific Relief Acts 12" Edition Volume 1 Butterworths 2001 at page 99 to explain on absolute and unqualified acceptance as follows: Page 23 of 68 47. 48. “A valid acceptance of proposal must be absolute and unconditional. It must extend to all terms of a proposal. If the purported acceptance is conditional or qualified, it does not create a contractual relationship. If becomes a counter-proposal, which may become a contract on the terms offered by the offeree if the proposer accepts it, Such an acceptance would revoke the offer, and the contract cannot be revived on original terms by withdrawing the conditional acceptance. A bid can be revoked by notice if it has been accepted provisionally or with conditions.” In addition, in relation to any alleged past practise of the parties, | have also taken into account the fact that the Defendant has never at any time for this contract or even for the previous one paid any late payment interest as per the FIAM terms. In fact, as soon as the Defendant became aware that the Plaintiff was imposing late payment interest, they had sent a letter dated 13° February 2019 vehemently objecting to the same on the basis that the same was never agreed upon nor was it a contractual term. Having concluded that the FIAM terms are not applicable but that the tender documents are, the next issue to then consider is whether the impugned agreement dated 218! December 2017 was executed and binding as contended by the Defendant. To recap, the Plaintiff categorically denies ever having executed the agreement and Page 24 of 68 49. 50. contends that it was merely a compilation of various documents put together by the Defendant to bolster its counter claim herein. In fact, when put to DW-5 in cross examination, she agreed that the said impugned agreement was made to support the Defendant's case. | must at the outset state that | too am suspicious of the authenticity of this document (the impugned agreement) for various reasons. Firstly, and quite starkly, whilst the agreement was allegedly executed by the parties on the 21%* December 2017, it annexes to it a delivery schedule with reference to PO's dated 29" December 2017 and 15" January 2018. The Defendant's witnesses were evasive during cross examination on this issue and couldn't give a suitable explanation. Further, there is nowhere to indicate that the Plaintiff had signed this agreement and there is similarly no evidence whatsoever of the Defendant having given the Plaintiff a copy of the same. In addition, | note that the same contains an arbitration clause and the question arises as to why the Defendant never invoked the same once a dispute arose between the parties. | am also persuaded by the Plaintiffs submissions and as set out hereinbelow as to why the impugned agreement is highly questionable for the following several reasons. Page 25 of 68 51. Firstly, the contents and the construction of the Impugnéd Agreement are confusing and indeed questionable as apart from the document not chronologically paginated and incoherent, it also contains several documents with differing dates and some that came into being after the date of the Impugned Agreement of 21% December 2017 namely:- (a) The document at 42 — 43/B3 is purportedly dated 21* December 2017. The Plaintiff contends that it has never seen this document prior to this suit. In fact, whilst page 43 ends with the words to the effect that parties had signed the said contract, there are no signatures at all; (b) The document at 44 — 45/B3 is a copy of KFN002/2018 which was signed on 18 December 2017. However, this particular copy was only stamped on 23" July 2019; after the Plaintiff had filed this action against the Defendant. This further supporis the Plaintiff's contention that the Impugned Agreement was tailored for the instant suit; Page 26 of 68 (c) The document at 46 - 47/B3 is the Arahan Perubahan Tambahan dated 15" January 2018 in respect of the supply and delivery of GU to Lahad Datu (“AP001/2018”). This later translated into the Additional PO at 187/B2; (d) The document at 48/B3 is the Jadual Penghantaran which DW5 testified was sent to the Plaintiff on 4" January 2018, and of which the Defendant is relying on in calculating the late penalty for the Plaintiff's alleged delay (“Impugned Timetable’); (e) The document at 49 — 54/B3 is a set of terms and conditions which is undated and unpaginated, said to be part of the Impugned Agreement; (f) The document at 55 — 65/B3 are part of the tender document in TFN32/2017. Page 27 of 68 52. In relation to the creation of the Impugned Agreement, the Defendant’s witnesses revealed as follows at trial: (a) DW5, the witness whom had prepared the Impugned Agreement, testified that the Impugned Agreement was made by the Defendant to support the Defendant’s case. PC1: Puan Zeeha, soalan saya bahawa perjanjian tarikh 21.12.2017 dibuat oleh pihak Defendan untuk menyokong kes Defendan dalam guaman ini, setuju atau tidak? DW5: Setuju. (b) DW5 had assertively testified that she prepared the Impugned Agreement on 18" December 2017. PC1: Puan Zeeha, saya mengulangi soalan saya. Soalan saya senang, bilakah Puan Zeeha menyediakan dokumen atau perjanjian ini? YA: Jangan rujuk kepada kontrak term ini, bila? DW5: Saya sediakan pada 18 hari bulan 12. YA: | prepared this contract on 18.12.2017? DW5: 18.12.2017. Page 28 of 68 (d) It is clear however that on 18" December 2017, purportedly the date of the preparation of the Impugned Agreement, the Impugned Timetable, the stamped KFN002/2018 dated 23 July 2019 and AP001/2018 could not have existed. in fact, DW5 had also admitted that those documents were inserted later on the basis that the later documents were part and parcel of KFN002/2018. YA: DC1: DWS: DC1: DW5: DC1: Soalan peguam pada pagi itu, ia mustahil kerana suatu. dokumen bertarikh 21.12.2017 tidak boleh mengandungi rujukan dokumen yang bertarikh 15 Januari. Itu asas dia kata mustahil. Kamu tidak setuju. So, soalan peguam Defendan sekarang, kenapa tidak setuju ia mustahil? Correct, counsel? Ya, Yang Arif. Sekali lagi? Tadi kamu ditanya berkenaan perjanjian tersebut. Kamu kata kamu buat 18.12.2017. Perjanjian ini ditandatangani pada 21. Kemudian, peguam cadangkan mustahil untuk wujudkan dokumen tersebut pada 18.12.2017, dia kata mustahil. Kamu kata tidak setuju. Betul, saya tidak setuju. Kenapa kamu kata tidak setuju? Page 29 of 68 53. DW5: Mustahil maksudnya dokumen yang complete macam ini? per: Ya. DW5: Kalau bertarikh 18- YA: Kuatkan sikit. Tidak dengar. DW5: Kalau ikut akuan penerimaan tawaran, tarikh mula adalah 25.12.2017 dan tarikh siap adalah 30.09.2018. Itu adalah tempoh kontrak. Jadi, dalam tempoh tersebut, dokumen- dokumen yang datang kemudian masih lagi dibuat kontrak KFNO002. Whilst the Defendant had relied on the Impugned Agreement to bind the Plaintiff, there is no evidence before the Court that the Plaintiff was given a copy of the Impugned Agreement. This is consistent with the Plaintiff's evidence that the Plaintiff has never seen the Impugned Agreement uniil it was exhibited in an affidavit. Further, there is no evidence of the Plaintiff having been given or provided a copy of the impugned agreement. Page 30 of 68 54. 55. 56. In this regard, it was DW5’s evidence as follows: DC2: Peguam Plaintif juga mencadangkan bahawa sebab kenapa salinan perjanjian ini tidak pernah diterima oleh Plaintif adalah kerana dokumen tersebut direka oleh Defendan dan Puan tidak bersetuju. tidak bersetuju. Boleh terangkan.dengan lebih lanjut? DW5: Setiap dokumen yang dikeluarkan oleh pihak Defendan selalunya kita akan memaklumkan kepada pihak Plaintif sama ada secara e-mel ataupun courier. Itu sahaja. However, | have noted that there is no evidence be it by email or courier slip produced to show that the Impugned Agreement was ever given to the Plaintiff. In fact, DW2’s evidence was as follows under during his cross examination: ‘| PC1: DW2: Boleh cuba Encik Huzairy memakiumkan atau menjelaskan kepada Mahkamah bagaimana satu tarikh, satu dokumen di masa depan, 15.1.2018 terkandung dalam satu perjanjian yang bertarikh 21.12.2017? Boleh Encik Huzairy jelaskan? Atau tidak boleh? Tidak boleh. Page 31 of 68 PC1: YA: DW2: PC1: DW2: Saya juga cadangkan kepada Encik Huzairy pada muka surat 48 yang kononnya jadual penghantaran. la mengandungi tarikh-tarikh PO pada 29.12.2017 dan satu lagi tarikh 15.1.2018. Saya juga cadangkan kepada Encik Huzairy bahawa adalah mustahil untuk satu dokumen yang bertarikh 21.12.2017 mempunyai jadual seperti mana yang dinyatakan dalam muka surat 48. Setuju? Peguam menggunakan- perkataan mustahil. Peguam cadangkan, tengok dokumen ini secara keseluruhan, Encik Huzairy katakan ini satu kontrak bertarikh 21.12.2017. Dia katakan, kalau macam itu, mustahil ada rujukan kepada PO bertarikh 29.12.2017. Tidak mungkin suatu kontrak bertarikh 21.12.2017 akan membuat rujukan kepada PO. Kalau 29.11.2017, okay, kita boleh masuk akal. Tetapi 29.12.2017, itu soalan dia. Mustahil. Setuju? ltu cadangan beliau. Setuju. Setuju dengan saya, Encik Huzairy, bahawa pihak Plaintif tidak pernah diberitahu berkenaan dengan jadual penghantaran sebelum- maaf. Saya ulangi soalan. Setuju dengan saya bahawa adalah mustahil untuk wujudnya satu jadual penghantaran di muka surat 48 pada 21.12.2017. Adalah mustahil? Setuju. Page 32 of 68 57. 58. 59. PC1: Jadi, setuju dengan saya bahawa jadual ini hanya boleh direka oleh pihak Defendan pada tarikh 15.01.2018 atau tarikh-tarikh selepas tarikh tersebut, setuju? DW2: Setuju. Having considered all matters as aforestated, in my considered view, it is more probable that the Impugned Agreement was created by the Defendant after the Plaintiff filed this action in an effort to bolster its case. In the final analysis, | conclude that the authenticity and credibility of the impugned agreement dated 21% December 2017 questionable and ought not to be considered. | have also taken into account that there is absolutely no contemporaneous documents at the material time ever making any reference to such 21** December 2017 agreement. As such, | conclude that the terms and conditions that were applicable to the parties were only those as contained in the tender documents. To recap, | find that neither the FIAM terms applicable nor the contents of the impugned agreement applicable. Page 33 of 68 60. 61. Having concluded as above, there is no doubt that the Plaintiff had made deliveries under the said contract and the Defendant does not at all dispute that it owes the principal amounts as claimed. In fact, DW1 admitted that the Defendant truly owed the Plaintiff and - that the payments were delayed to the Plaintiff because the Defendant had financial issues. PC1: Saya juga nyatakan bahawa pada 6.8.2018 ada sejumlah hutang yang pihak Felcra Niaga hutang kepada Baja Niaga, setuju? DW1: Setuju. DW1: Sorry. Sudah biasa. Sebenarnya, dalam pembayaran kepada supplier dia tetap kepada kedudukan kewangan sebenarnya dan itu bagi saya adalah biasa dalam business ini. YA: Kedudukan kewangan siapa? Felcra? DW1: Yes. Kita Defendan kewangan. Dan saya rasa kita sebenarnya untuk buyer-buyer kita, pasti kita akan bayar walaupun sama ada cepat atau lambat dia punya isu dia begitu sahaja. Maksudnya kalau dia kata kita sengaja melengah-lengahkan saya tidak setuju sebab kita bayar, kita tidak akan lengahkan. Kalau duit kita cukup, kita bayar. Saya rasa biasa dalam business baja. YA: So keterangan kamu- Sebab soalan semalam bahawa pihak Felcra sengaja- jawapan kamu kami tidak melengahkan sengaja tetapi memang ada isu kewangan. DW1: Ada isu-isu sampingan yang tidak boleh bayar, kewangan. Page 34 of 68 62. DWS testified that all the goods supplied by the Plaintiff had been received in good order. PC1: Menurut penyata saksi Encik Saidin, Encik Saidin kata ada menyatakan bahawa Defendan ada menerima baja-baja yang telah dihantar oleh Plaintif. Soalan saya, baja-baja yang telah diterima oleh pihak Defendan tidak mempunyai sebarang kecacatan, setuju? DW3: Kecacatan fizikal baja, setuju. PC1: Sempurna diterima. DW3: Ya. Setuju. 63. DW6 unequivocally testified that the Defendant would have continued to make payment to the Plaintiff but for the Plaintiff commencing the instant suit against the Defendant. YA: So, dari jawapan 13, sekiranya Plaintif tidak memfailkan tindakan ini, adakah itu bermakna Defendan akan terus membuat pembayaran? DW6: Ya, saya akan membuat bayaran sehingga selesai. YA: Jika Plaintif tidak memfailkan tindakan ini? DW6: Betul. YA: Pihak Defendan akan terus membuat pembayaran? Page 35 of 68 64. DWé6: Betul. YA: Alright. Questions from Court. Sorry. Based on question and answer 13, if Plaintiff did not sue, we would have carried on making payments. Alright. As such, | have no hesitation in holding that the Plaintiff is entitled to judgement for the principal amount claimed of RM 4,138,780.60. ISSUE 2 - DID THE PLAINTIFF DELIVER WITHIN THE NEW 65. DEADLINES My first point of reference will have to be the Defendants pleaded defence and counterclaim. In essence, they plead that the Plaintiff had failed to deliver the goods in accordance with the PO’s and the delivery schedule annexed to the impugned agreement. It is further pleaded that since the Plaintiff failed to adhere to such delivery schedule and delayed, they are entitled to a penalty of RM25 for each metric ton per day of delay. Page 36 of 68 66. 67. 68. | have also noted that in the PO’s that were dated 29'" December 2017 and 15” January 2018, it is expressly stated therein that delivery has to be made on or before 12! January 2018 and 18" January 2018 failing which the PO’s will be cancelled. On this issue of new deadlines, the Defendant contends that Clause 5(ii) of the Technical Specification provides that: “Delivery of Goods to the estate is to commence should not be later than fourteen days after the issue of the Letter of Acceptance or Purchase Order” and that as such, based on Clause 4(ii) of the Technical Specification, the Plaintiff only had 14 days to deliver all the ordered GAC, GDP and GU fertilizer components. The 14 days period to deliver all the GAC, GDP and GU fertilizer components was also stated in all the purchase orders, as summarized in Table 4 and Table 2 earlier. Page 37 of 68 69. 70. 71. The Defendant contends that the 14 days period under Table 1 and Table 2 was later rescheduled by the Defendant as stated in the Defendant's e-mail of 4 January 2018 whereby it is further contended that there was no objection raised by the Plaintiff on the new deadlines. It is therefore contended that the new deadlines had given the Plaintiff more than ample time to deliver all the ordered items in January, February, March, April and May 2018. As such, it is contended that Table 3 below set out the New Deadlines: TABLE 3 (NEW DEADLINES) B17/PO-0107 12.1.2018 January-May 2018 B17/PO-0109 12.1.2018 January-May 2018 C17/PO-0069 12.1.2018 January-May 2018 C17/PO-0070 12.1.2018 January-May 2018 E17/PO-0460 12.1.2018 January-May 2018 E17/PO-0461 12.1.2018 January-May 2018 F17/PO-0143 12.1.2018 January-May 2018 F17/PO0-0144 12.1.2018 January-May 2018 Page 38 of 68 12. 73. 74, F17/PO-0145 12.1.2018 January-May 2018 E18/PO-0002 18.1.2018 January 2018 Reference is also made by the Defendants to Clause 6(ii) of the Technical Specification which provided that time is of the essence. The Defendant finally submits that although they had issued several reminders to the Plaintiff about the need to be punctual on the delivery, the Plaintiff still failed to deliver all the GAC, GDP and GU fertilizer components to the Defendant within the new extended deadlines. As such, the Defendant contends that they should be entitled to its claims for penalty. In response, it is the crux of the Plaintiff's contention that the Defendant’s claim is hinged on the impugned timetable whereby it is submitted that the Defendant has been unable to prove that the timetable was in existence or even provided to the Plaintiff. What is Critically not disputed is that in the akuan penerimaan tawaran for the KFN 002/2018, it was expressly provided that the Plaintiff had until September 2018 to complete the deliveries. The Defendant’s witnesses had also testified to that effect. Page 39 of 68 75. 76. The Plaintiff submits that the Impugned Timetable was never given to the Plaintiff at any point in time either at the point or after KFNO02/2018 was executed by the parties and that as such, the timeline in the Impugned Timetable does not bind the Plaintiff. In my view, the evidence led by the Defendant's witnesses throughout the course of the trial on the Impugned Timetable in its totality appears to fortify the Plaintiff's contention. Some excerpts of such evidence is as follows; 76.1. DW5 testified that the Impugned Timetable at 48/B3 was emailed to the Plaintiff on 4° January 2018 at 1/B4 (“PO Email”). This would be impossible given that the Impugned Timetable contains a PO that is dated 15" January 2018. 76.2. DW3 testified that the timeline is that as set out in the Impugned Timetable which is contained in the disputed Impugned Agreement: PC1: Jadi, menurut jawapan Encik Saidin, Encik Saidin dengan merujuk kepada perjanjian ini, Encik Saidin menyatakan bahawa wujudnya satu jadual penghaniaran baja, setuju? Page 40 of 68 Dws: PC1: DW3: PC1: DW3: PC1: DWs: PC1: DW3: Setuju. Dan jadual tersebut yang dirujuk Encik Saidin adalah di muka surat mana, boleh beritahu Mahkamah? Muka surat 48 dan 66. Dokumen yang sama? 48. Dokumen yang sama? Muka surat 66? Ya. Sebahagian daripada perjanjian, setuju? Setuju. 76.3. It was also DW2’s testimony that the timeline is as that which is set out in the Impugned Timetable contained in the Impugned Agreement: PC1: Item nombor 46. Encik Huzairy kononnya menyatakan bahawa wujud satu. perjanjian membekal dan menghantar serah baja tunggal secara ex-gudang ke gudang-gudang Felcra Niaga Sdn Bhd dan dokumen tersebut adalah bertarikh 21.12.2017, ya? Saya sekarang rujuk Encik Huzairy kepada muka_ surat tersebut. Encik Huzairy telah menyatakan bahawa Page 41 of 68 t7. perjanjian tersebut adalah daripada muka surat 42 — 65. Sila rujuk kepada muka surat tersebut. DW2: Ya. PC1: Setuju dengan saya bahawa Encik Huzairy dalam penyata saksi kononnya menyatakan bahawa _ pihak Plaintif telah bersetuju dengan perjanjian ini? DW2: Ya. In my view, it is incomprehensible for the Impugned Timetable to include the details of the PO dated 15" January 2018 — which could not have existed at the time of the email of 4" January 2018. This is the only time that the Defendant had ever contended that it forwarded the Impugned Timetable to the Plaintiff. 77.1. This point is further fortified by the fact that the Defendant had only sought the quotation of the additional order of the PO only on 4" January 2018 and the Plaintiff quoting for the same on 8" January 2018. Page 42 of 68 77.2. The PO for the additional order was made on 15" January 2018, and emailed to the Plaintiff on 16" January 2018. If at all, the Impugned Timetable therefore could only be created on 15" January 2018 and not before that: YA: Soalannya senang. Muka surat 48, apakah tarikh seawal-awalnya dokumen itu boleh disiapkan? Itu sahaja soalan dia DW5: Tarikh yang sama. 15.01.2018. YA: Tarikh awal? DW5: Ya. 78. The only inference that can be derived from the above is that the Impugned Timetable at 48/B3 was not the document informed to the Plaintiff. This was been confirmed by DW5: PC1: Dalam penyata saksi bahawa menurut e-mel ini, Puan Zeeha telah hantar PO dan jadual. Setuju dengan saya bahawa jadual yang dimaksudkan di dalam e-mel ini bukan jadual pada muka surat 48, Bundle B3, setuju? DW5: Ya, betul. Page 43 of 68 79. 80. As such, if there was any schedule at all in the PO Email dated 4" January 2018, it is not béfore the Court. Furthermore, neither in TFN32/2017, KFN002/2018 or the POs, is there any reference to the Impugned Timetable. This has been conceded by DW1, DW3 and DW5, YA: PC1: DW1: PC1: DW1: PC1: DW1: PC1: DW1: All the POs? Yes, all at one time. 113, 174, 187, 223, 233, 234 dan 239 tidak merujuk kepada sebarang jadual penghantaran, setuju? Tidak merujuk itu maksud apa? Tidak mempunyai sebarang rujukan atau membuat rujukan kepada sebarang jadual penghantaran. Adakah perkataan jadual penghantaran di dalam- Ada perkataan ‘tidak’ di dalam ini. Tidak, perkataan jadual penghantaran, saya nyatakan bahawa PO-PO tersebut tidak merujuk kepada sesuatu jadual penghantaran. Tarikh yang dikehendaki jadual penghantaran? Jadual, table. Oh, table? Table tidak ada. Page 44 of 68 PCi: Setuju dengan saya bahawa tidak wujud sebarang tandatangan oleh Plaintif atau Defendan pada dokumen ini. Setuju? DW1: Yang mana? Bundle berapa? PC1: Bundle B3. DW1: 66? PC1: Yes. Setuju dengan saya bahawa tiada tandatangan oleh pihak Defendan ataupun Plaintif pada dokumen ini? DW1: Yes, setuju. Page 45 of 68 PC1: Setuju dengan saya bahawa menurut akuan penerimaan pada muka surat 51, B1, nombor 7, perenggan 7, setuju dengan saya- boleh Puan Zeeha baca perenggan 7? DW5: Mukasurat 51, perenggan 7, Kuantiti dan tempoh bekalan -sebenar bagi kontrak bekalan sebagaimana yang dinyatakan dalam borang pesanan tempatan yang dikeluarkan dari masa ke semasa. PC1: Ada tak menyebut mengenai jadual penghantaran? DW5: Tempoh bekalan sebenar. Dalam ini tidak ada jadual penghantaran. PC1: Saya akan cadangkan kepada Encik Saidin bahawa di dalam semua PO-PO yang saya rujuk Encik Saidin sebentar tadi, tidak wujud sebarang jadual penghantaran, setuju? DW3: Merujuk kepada PO-PO, saya setuju. PC1: Saya cadangkan juga nota-nota hantaran tidak merujuk kepada sebarang jadual, setuju? DW3: Setuju. Page 46 of 68 81. 82. Furthermore and importantly, | find that there is also no reference whatsoever to the Impugned Timetable at pages 42 — 43 and 49 — 54/B3 of the Impugned Agreement itself. If indeed it was part of the agreement, it would only be expected that the agreement make reference to it. In addition, it would appear that the contents of the Impugned Timetable which is said to require a minimum quantity to be delivered every month from February 2018 until May 2018, are contrary to the POs and KFN002/2018 where: (a) Clause 7 of KFN002/2018 specifically provide that: “Kuantiti dan tempoh pembekalan sebenar bagi kontrak bekalan adalah sebagaimana yang dinyatakan dalam Borang Pesanan Tempatan yang dikeluarkan dari semasa ke semasa.” (b) It is also stipulated under KFNO02/2018 that the period for delivery shall end on 30" September 2018 — a position agreed by DW1, DW3 and DW7 during trial. Page 47 of 68 PC1: Nombor 4, Baja Niaga diberikan sehingga 30.9.2018 untuk menyiapkan pembekalan dan penghantaran baja tunggal di bawah Kontrak KFN002/2018, setuju? DW1: Setuju. PC1: Soalan saya, bahawa Plaintif mempunyai, menurut akuan penerimaan yang saya telah rujuk Encik Saidin tadi, Plaintif mempunyai jangka masa sehingga September 2018 untuk melengkapkan penghantaran baki 7 purchase order tersebut. Setuju? YA: Faham soalan? DW3: Berdasarkan kontrak, setuju. DC2: Puan, peguam Plaintif juga mencadangkan bahawa PO yang dikeluarkan oleh Felcra Niaga ke Baja Niaga tidak dibatalkan oleh Defendan kerana tidak wujud pun kelewatan dalam penghantaran baja. Puan kata tidak bersetuju. Boleh terangkan dengan lebih lanjut? DW5: Sebab PO itu dia masih lagi di bawah kontrak perjanjian di mana tempoh kontrak adalah 25.12.2017 ~ 30.9.2018. Jadi, kita pun dalam tempoh tersebut daripada Januari sehingga Mei. Jadi, kita sentiasa berharap pihak supplier dapat membekal dan kita boleh memproses. Jadi, kita tidak sewenang-wenangnya untuk membatalkan. Page 48 of 68 la juga bergantung pada apabila kita- kita tidak menerima barang itu dan ataupun kita perlu memproses semula untuk mendapatkan bekalan yang baru, dia mengambil masa yang lama untuk kita dapat balik baja. (c) The “Tarikh Dikehendak?’ in the POs are not the same dates set out in the Impugned Timetable. 83. The evidence of DW5 and DW7 also contradicted the Impugned Timetable and the POs. 83.1. On one hand, DW5 testified that the Plaintiff must deliver at least one ‘lot’ to the Defendant by the ‘Tarikh Dikehendaki’: DW5: Pesanan ini dibatal jikalau barang tersebut tidak dihantar sebelum atau pada 12.01.2018. DC1: Ya. DW5: Okay. PO ini dikeluar melalui sistem. Jadi, sebenamya tarikh PO adalah pada 29 Disember dan tarikh dikehendaki adalah 14 hari selepas tarikh pengeluaran PO sebenarnya. Jadi, tarikh dikehendaki itu adalah 12.01.2018. Page 49 of 68 YA: Auto default. Tarikh dikehendaki selatunya 14 hari selepas PO dikeluarkan. DWS5: Ya, betul. Ini adalah sebenarnya sekurang-kurangnya pihak pembekal hantar satu lot bekalan ke gudang. Jadi, dalam sistem kami, bila saya tulis dekat situ, 12 Januari, automatically dia berada di bawah. 83.2. Apart from the fact that the above is not pleaded and the documents before this Honourable Court do not support DW5’s contention, DW7 later contradicted this by testifying that the ‘Tarikh Dikehendak? meant to commence delivery: PC1: PC1: DW7: DW7: Setuju dengan saya bahawa peringatan (i) tersebut tidak menyatakan bahawa_ pihak Plaintif boleh menghantar satu lot pada tarikh tersebut, setuju? Ulang soalan? Di sini dikata barang mesti dihantar ke lokasi sebelum 12.01.2018. Setuju dengan saya peringatan tersebut tidak bermaksud bahawa_ pihak Plaintif boleh memulakan penghantaran pada tarikh tersebut, setuju? Tidak setuju. Page SO of 68 84. DC1: YA: YA: DW7: DW7: DWT: Dicadangkan oleh rakan saya tadi bahawa di dalam peringatan tersebut tidak menyatakan bahawa Plaintif boleh hantar satu lot pada tarikh tersebut. Kamu kata tidak setuju. Kenapa kamu kata tidak setuju? At least sepatutnya satu lot boleh dihantar. Maksud dekat sini adalah telah memulakan penghantaran. It is not necessary mesti complete. At least telah memulakan penghantaran itu. Satu metrik tan pun cukup? At least you have delivered something. So, if your PO is 700 metric tonne, even you just deliever one metric ton or whatever one bag of 50 kg pun cukup on the first date? Yes. At least. Sebab itu priority ready stock. Where there is inconsistency between oral evidence dan documentary evidence, the Plaintiff relies on the judgment of Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 where it was held _that:- “He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. Page 51 of 68 85. 86. 87. For myself, | would with respect fee! somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.” By unilaterally imposing the applicability of the Impugned Timetable onto the Plaintiff, the Plaintiff submits that such imposition is barred by Section 92 of the Evidence Act 1950. Taking into account all the matters, | am constrained to conclude that the said impugned timetable is not binding on the Plaintiff. | am certainly not satisfied on the evidence before me that it exists or was ever communicated to the Plaintiff. Having found that the impugned timetable is not binding on the Plaintiff, and bearing in mind that the PO’s had stipulated delivery within 14 days, the next issue to consider | whether there was a delay in delivery. Page 52 of 68 88. 89. For the reasons enumerated hereinbelow, | am of the view that there was no delay by the Plaintiff. At the outset, KFN002/2018 provides that the Plaintiff has until 30 September 2018 to complete delivery. DW1 as well as DW7 admitted this in trial: PC1: Nombor 4, Baja Niaga diberikan sehingga 30.9.2018 untuk menyiapkan pembekalan dan penghantaran baja tunggal di bawah Kontrak KFN002/2018, setuju? DW1: Setuju. DC1: Kamu juga dirujuk pada tarikh. Plaintif mempunyai tarikh sehingga 30.09.2018 untuk menghantarkan baja berdasarkan KFN2018 tersebut kepada Defendan. Kamu kata tidak setuju. DW7: Tempoh sehingga 30 September? DC1: Ya. DW7: Ya, maksudnya tempoh sehingga 30.09.2018 adalah tarikh tamat kontrak ini. Jadi, tidak boleh hantar selepas tarikh tamat kontrak ini. Kita tidak akan terima. DC1i: Rujuk kepada B1. Page 53 of 68 YA: YA: YA: DW7: DW7: DW7: So, tarikh tamat untuk menghantar, 30 September? Selepas 30 September, tidak boleh hantar lagi? Kebiasaannya memang- | am just taking out what your last evidence. Inilah tarikh akhir untuk membuat penghantaran? Yes, 30.09.2018, all complete. Including pembayaran ke apa. Based on jadual. | know. For clarification. 30.09.2018 is the last date to buat penghantaran. Selepas 30 September, tidak akan menerima apa-apa baja lagi? Ya. 90. The very basis of the Defendant's allegation of delay on the Plaintiff's part rests solely on the Impugned Timetable. YA: PC1: PC1: DW4: DW4: DW4: Soalan peguam, apakah asas penghantar lewat itu? Adakah berdasarkan jadual penghantaran? Ya, betul. Jadual penghantaran dalam perjanjian membekal baja, setuju? Jadual penghantaran... Jadual penghantaran. Ya, lewat daripada jadual penghantaran. Page 54 of 68 91. 92. Even if there was a delay in delivery, the evidence reveals that the Defendant did not reject the Goods and had accepted all the Goods without any protests and/or reservation. There was also no complaint of any delay by the Defendant. This in my view, amounts to acquiescence on the Defendant's part. The Plaintiff relies on the Supreme Court decision of Ganda Edible Oils Sdn Bhd v Transgrain BV [1988] 1 MLJ 428 where it was held: ‘A distinction must be drawn between defects in the goods which are apparent on the face of the documents, and those which are not. If the buyer accepts documents which on their face indicate, for example, that the goods were shipped late he may be held to have waived his right to reject the goods on this ground, and he may lose the right to reject the goods even though he has not read the documents, so that he cannot strictly speaking be said to have waived the right to reject, since waiver requires actual knowledge of the facts giving rise to the right to reject.” Page 55 of 68 93. 94. 95. The Defendant's acceptance of the Goods therefore shows that time under KFN002/2018 had become at large. This is true whether the Impugned Timetable (which the Plaintiff denies) or the POs are applicable. When the Defendant contends that the Plaintiff has breached KFNO002/2018 by the Plaintiff's alleged delay to supply and deliver the Goods to the Defendant, the contract then becomes voidable. On this aspect of a contract being voidable, Mary Lim J (now FCJ) stated as follows in Mardale Pipes Plus Ltd v Malaysian International Trading Corp (Japan) Sdn Bhd (ExxonMobil Exploration and Production Malaysia Inc, third party) [2009] 5 MLJ 691: 23] ... Non-performance by the due dates allows the innocent party to treat the contract as voidable, that is, to reject late delivery. This position under common law is enshrined in Contracts Act 1950. Page 56 of 68 96. [24] However an innocent party may nevertheless choose to accept a late delivery. But where he chooses to do so and wants to claim for any damages for late delivery he must notify the other party of this intention at the time of acceptance of late delivery. This too is encapsulated in Contracts Act 1950.” As such, it there was indeed any delay, the Defendant was then presented with the option to terminate and claim damages from the Plaintiff. This is neither the Defendant’s pleaded case, nor was there any evidence to this effect. Instead, the Defendant had affirmed KFNO002/2018. In this regard, the Defendant had allowed the Plaintiff ‘to continue delivery of the Goods. DW7 confirmed this position during trial: PC1: .Dia berbunyi pesanan ini dibatal jika barang tersebut tidak dihantar ke lokasi sebelum atau pada 12.01.2018, setuju? DW/7: Berdasarkan ini, setuju. PC1: 1am saying this, Puan Fatin tidak membatalkan PO, setuju? DW7: Setuju. Page 57 of 68 97. In Hock Huat Iron Foundry (Suing As A Firm) v Naga Tembaga - Sdn Bhd [1999] 1 MLJ 65, it was held as follows: “Since the defendant did not rescind the contract under s 56(1) of the Contracts Act 1950 when the plaintiff failed to complete on 31st January 1981 but instead had allowed the completion date to pass and had even allowed the plaintiff to remedy his default by permitting him to continue to work on the project until it was wholly completed, time was no longer to be regarded as of the essence of the contract. And when time is no longer of the essence of the contract, s56(1) (which is only applicable to cases where the parties to the contract have intended that time is essential) no longer applies. When time is no longer of the essence of the contract and no time for performance is specified, the promise must be performed within a reasonable time. Section 47 reads: Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. As to what is a reasonable time to have the contract performed is, in each particular case, a question of fact. But where one party has been guilty of unnecessary delay, the other may give him a notice fixing a reasonable time at the expiration of which he will treat the contract as at an end. The remedy at law for one party to call off the contract unilaterally in this way if he finds the other guilty of unnecessary delay has survived unscathed to the present day because equity would not assist the party who had been guilty of. impropriety (see Jamshed Khodaram Irani v Burjori Dhunjibhai (1915) 32 TLR 156 at p 157). in Webb v Hughes, Malins V-C said at p 286: Page 58 of 68 98. 99. But if time be made the essence of the contract, that may be waived by the conduct of the purchaser; and if the time is once allowed to pass, and the parties go on negotiating for completion of the purchase, then time is no longer of the essence of the contract. But, on the other hand, it must be borne in mind that a purchaser is not bound to wait an indefinite time; and if he finds, while the negotiations are going on, that a long time will elapse before the contract can be completed, he may in a reasonable manner give notice to the vendor, and fix a period at which the business is to be terminated. But, having once gone on negotiating beyond the time fixed, he is bound not to give immediate notice of abandonment, but must give a reasonable notice of his intention to give up his contract if a title is not shown.” It seems to me that a reasonable period within which the plaintiff was to complete deliveries was the 30" September 2018 as stipulated in the akuan penerimaan and as admitted by the Defendant’s witnesses. Even then, once time was at large, there was no notice from the Defendant to the Plaintiff indicating an intent to terminate KFN002/2018. On the contrary, the Defendant had during these times continued to accept delivery of the Goods from the Plaintiff without protest. Page 59 of 68 100. On the fact of the 2 meetings between the parties In March and April 101. 2018, despite both the meetings being formal meetings called by the Defendant purportedly on the issue of delay by the Plaintiff, the Defendant did not record the minutes of such meetings. PC1: Yes, PW1. Setuju dengan saya bahawa memandangkan ia adalah mesyuarat rasmi yang dipanggil oleh pihak Defendan, wujudnya minit-minit pada mesyuarat tersebut? DW7: Tidak ada. Further the evidence will reveal that after such meetings, the parties also proceeded based on latest shipment dates and not to any impugned timetable. The Whatsapp conversations between DW4 with PW1 and PW2 post such meetings will reveal that parties were communicating on latest estimated arrival dates via shipment etc. 102. Additionally, as far as contemporaneous documents go, it has not escaped my attention that prior to this suit being filed, the Plaintiff had issued a letter dated 24/5/19 to the Defendant wherein it was stated that parties had indeed agreed to ‘mengubah jadual penghantaran” after the 2." meeting of 18" April 2018 which had Page 60 of 68 been agreed to by the Defendant. There was no reply by the Defendant to this letter. 103. In my view, the continuous acceptance of the goods by the defendant without any protest or reservation after the “Tarikh Dikehendaki” as stipulated in the PO’s is clearly reflective of the fact that the Plaintiff did indeed have until 30 September 2018 to complete delivery as stipulated in the “AKUAN penerimaan’. 104. In this regard, the Plaintiff also relies on to Section 56(3) of the Contracts Act (“CA”) 1950:- “Effect of acceptance of performance at time other than that agreed upon (3) If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of the promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of the acceptance, he gives notice to the promisor of his intention to do so. Page 61 of 68 105. Itis pertinent that notice must be given should the Defendant intend to charge late penalty. This was however not done by the Defendant. It is the unequivocal evidence that the Defendant had received the goods without any protest. 106. DW/7’s evidence on this is clear: YA: PC1: PC1: DW7: DW7: DW?7: So, walaupun tidak diikuti tarikh yang dikehendaki, yang hantar selepas tarikh itu masih diterima? Masih diterima. Saya akan cadangkan kepada Puan Fatin bahawa_ pihak Defendan telah menerima baja-baja tersebut selepas tarikh- tarikh yang dikehendaki tanpa sebarang protes, setuju? Tidak setuju. Saya cadangkan kepada Puan Fatin tidak ada mana-mana dokumen yang menyokong pendirian Puan Fatin bahawa pihak Defendan ada menerima baja-baja tersebut dengan protes? Ya, setuju. YA: DW7: Just peringatan. Sebab yang pembatalan mesti melalui surat rasmi. Alright. Ini pembatalan PO will come with surat rasmi? Page 62 of 68 DW7: Yes. ltu adalah manual perolehan sendiri. DC1: Puan Fatin, tadi kamu juga ditanya, Defendan telah menerima baja-baja yang dihantar oleh Plaintif tanpa protes, kamu kata tidak setuju. Kenapa kamu kata tidak setuju? DW7: Ulang? YA: Telah diterima- DW7: Kami menerima baja tanpa protes. DC1: Dia kata tidak setuju. YA: Dia kata setuju. DW7: Dia hantar lambat, kita terima sahaja sebab kita tahu akan ada denda kelewatan. Jadi, kita terima sahaja. 107. In the final analysis, quite apart from the way the parties had conducted themselves which in my view was clearly indicative that time was no longer of the essence, and bearing in mind the Defendants own witnesses testimony that the Plaintiff had until September 2018 to complete delivery, | am constrained to conclude this issue in the Plaintiff's favour by holding that the alleged new deadlines were not applicable and that there was as such, no delay by the Plaintiff. Page 63 of 68 ISSUE 3 - CAN THE DEFENDANT CLAIM LATE DELIVERY PENALTY 108. 109. | have earlier concluded that the impugned agreement dated 21% December 2017 which contained the RM 25 penalty clause is not effective nor binding. | have however also taken note that in clause 6 of document 4 of the tender documents, the said penalty is expressly provided. In my view, the Plaintiff was clearly aware of the existence of such a penalty clause. My view is fortified by the fact that in the Plaintiff's letter to the Defendant dated 4 June 2018, when the Plaintiff had raised the issue of a possible delay on their part due to non-payment, they had informed the Defendant that the Plaintiff should not be held liable for any “denda’” as a result of any delay. However, for the reasons stated above, | find that there was no delay by the Plaintiff entitling the Defendant to claim late delivery penalty. Alternatively, even if there was a delay, the Defendant had acquiesced to such delay by accepting the goods without protest. In any event, the Defendants calculation of its claim for penalty is in my view erroneous as they have calculated the penalty from the 18" January 2018 which flies in the face of their own “new deadlines.” Page 64 of 68 ISSUE 4-1IS THE PLAINTIFF ENTITLED TO CLAIM INTEREST UNDER THE FIAM TERMS 110. In light of my earlier conclusion that the FIAM terms con't apply, | find that the Plaintiff is not entitled to such interest. The Plaintiff has submitted that they should be entitled to interest under the Sale of Goods Act 1957 (“SOGA’”) which is discretionary. Quite apart from the fact that SOGA was never pleaded, on the facts of this case, | see no basis to award interest pursuant to SOGA. CONCLUSION 111. In conclusion, the following is a summary of my findings;- a) there was a binding contract between the parties; b) neither the FIAM terms not the impugned agreement were applicable; c) neither the impugned agreement nor the impugned timetable were binding on the Plaintiff; Page 65 of 68 d) f) h) time was no longer of essence but at large due to the conduct of the parties. The agreement executed on 18" December 2017 expressly stipulated that delivery must be completed by 30" September 2018 and as such, there was no delay; even if there was any delay, there was acquiescence by the Defendant in their conduct of continuing to accept delivery without protest; As such, the defendant is not entitled to any late delivery penalty; The Plaintiff is only entitled to the principal sum ‘claimed and not the late payment interest under the FIAM terms; As for late payment interest under SOGA, the Plaintiff has not pleaded the same and the Court in any event sees no basis to exercise its discretion to award such interest based on the facts of this case. Page 66 of 68 112. As such, the Plaintiffs claim in prayers (a) and (d) are allowed and the Defendants counterclaim dismissed. 113. As for costs, taking into account all factors, | am of the view that a total sum of RM100,000.00 is reasonable and would order the Defendant to pay such sum to the Plaintiff (subject to 4% allocator). Date: 10" May 2022 Anand Ponnudurai Judge High Court Malaya Counsel: Brian Foong Mun Loong together with Lim Ke Xin (Messrs Chooi & Company + Cheang & Ariff) for the Plaintiff. Mohd Rosly Khady together with Nur Khairunnisa and Efa Sakina (Messrs Hisham Sobri & Kadir) for the Defendant. ‘Legislation: Section 92 Evidence Act 1950 Section 56(3) Contracts Act Sale of Goods Act 1957 Page 67 of 68 Cases referred to: Popular Industries Limited v Eastern Garment manufacturing Sdn Bhd [1989] (3) MLJ 360 Ganda Edible Oils Sdn Bhd v Transgrain BV [1988] 1 MLJ 428 Mahabuilders Berhad v Hotel Rasa Sayang Sdn Bhd [2014] 4 MLRH 95 Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 Mardale Pipes Plus Ltd v Malaysian International Trading Corp (Japan) Sdn Bhd (ExxonMobil Exploration and Production Malaysia Inc, third party) [2009] 5 MLJ 69% Hock Huat Iron Foundry (Suing As A Firm) v Naga Tembaga Sdn Bhd [1999] 1 MLJ 65 Page 68 of 68