WA-22M-169-08/2021 (Mahkamah Tinggi)

eh DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR (BAHAGIAN DAGANG) GUAMAN SIVIL NO: WA-22M-169-08/2021 ANTARA BANK KERJASAMA RAKYAT MALAYSIA BERHAD ... PLAINTIF DAN PRISMA BUMIRAYA SDN BHD ... DEFENDAN GROUNDS OF JUDGMENT (NO. 2) DEFENDANT’S APPLICATION TO STRIKE OUT [ENCLOSURE 46] Overview {. | This is Grounds of Judgment (No. 2) because it is the second round of this bout between the Plaintiff and the Defendant. 2. In the first round, the Plaintiff attempted to deliver a knock-out blow to the Defendant by its application in Enclosure 9 for summary judgment of its claim, for the sum of RM17,818, 786.66, with interest and costs. | dismissed it on 18 February 2022, and the Plaintiff did not appeal. My Judgement on that dismissal is reported in [2022] MLJU 411. Page 1 of 25 a On the authority of Diamond Peak Sdn Bhd & Anor v Tweedie [1980] 2 MLJ 31, the Court cannot dismiss an action when it dismisses an application for summary judgment. So, the Defendant by Enclosure 46 brings round two, hoping to land its own knock-out blow to the Plaintiff by applying to striking out its claim. It succeeded; | allowed it. Here are my reasons. The salient background facts By a Letter of Offer dated 2 July 2018 (‘the Reka Letter of Offer’), the Plaintiff had granted to Reka Indah Development (Penang) Sdn Bhd (“Reka”) a Term Financing-i Facility of RM33,000,000.00 (Restructure) (“Reka’s Loan’), repayable by 24 monthly instalments. Item 14.0 of Section 1 of the Reka Letter of Offer, entitled “Security” set out the various security documents for Reka’s Loan. These included a third-party charge by the Defendant over four lands in Penang, and a joint and several guarantee by four of Reka’s directors/shareholders (collectively, “the Guarantors”). This Suit does not involve Reka, or the Guarantors or any of those securities. Page 2 of 25 5. This Suit is about a matter identified as Item 19.0 B of Section 1 of the Reka Letter of Offer entitled “Additional Conditions Precedent”. It states: “Submission of Letter of Undertaking by the Customer and Prisma Bumiraya Sdn Bhd to cover any deficit/shortfall on the installment due and to ensure payment are made according to the payment schedule.” The Defendant did execute a Letter of Undertaking dated 9 October 2018 (“the Letter of Undertaking’) addressed to the Plaintiff. Upon Reka defaulting in the repayment of Reka’s Loan, the Plaintiff issued separate demands dated 7 January 2020 to Reka and to the Guarantors. In both letters, the Plaintiff made two demands. Firstly, the Plaintiff demanded payment within seven days of the arrears of the installments of RM3,340,429.62 as at 31 December 2019. Secondly, if they did not pay those arrears, then Reka’s Loan would be automatically terminated and/or recalled, and the Plaintiff demanded payment within seven days of the entire outstanding sum of RM23,491,095.23 under Reka’s Loan as at 31 December 2019. Page 3 of 25 When Reka and to the Guarantors failed to pay either the arrears of the loan installments or the outstanding sum under Reka’s Loan, in February 2020 the Plaintiff filed Kuala Lumpur High Court Civil Suit No: WA-22M-141-02/2020 against them. On 23 December 2020 obtained summary judgment against all of them for the entire outstanding sum under Reka’s Loan of RM20,109,586.96 as at 18 February 2020 with other late payment charges. More than a year and a half later on 5 July 2021, the Plaintiff issued a demand to the Defendant based on the Letter of Undertaking for payment of the sum of RM17,818,786.66, which it said was the total arrears at the “Expiry date”, within fourteen days. When that demand went unheeded, the Plaintiff filed this Suit for that sum. To support its claim for that amount, the Plaintiff relies on a Penyata Akaun Setakat 30 June 2021 (“the Penyata Akaun”), which contains the following brief particulars: Perkara Jumlah (RM) Prinsipal 17,071,161.08 Keuntungan 747,534.29 Ta’widh 91.29 Jumlah Keseluruhan 17,818,786.66 Page 4 of 25 10. On 26 March 2022, the Defendant applied to strike out the Plaintiff's claim. The Defendant’s case 11. 12. 13. The Defendant applied to strike out the Plaintiff's claim on two main grounds. Firstly, while the Defendant does not deny that it issued the Letter of Undertaking to the Plaintiff, it alleges that Letter of Undertaking is not connected or relates to the Reka Letter of Offer Reka’s Loan. This is because the Leiter of Undertaking does not expressly refer to or mention the Reka Letter of Offer dated 2 July 2018 that the Plaintiff issued to Reka for Reka’s Loan, but instead mentions a “Letter of Offer dated 2" April 2018”. Secondly, even if the Letter of Undertaking could be construed as connected or related to the Reka Letter of Offer and Reka’s Loan, i.e. issued pursuant to Item 19.0 B of Section 1 of the Reka Letter of Offer entitled “Additional Conditions Precedent”, the Defendant contends that the Plaintiff was not entitled to bring this action against it for the sum of RM17,818,786.66. Page 5 of 25 14. In a nutshell, the Defendant contends that, when the Plaintiff terminated and recalled Reka’s Loan in 2020, then Reka’s obligation to pay the installments under Reka’s Loan also ended. As the Letter of Undertaking was to ensure Reka paid those installments and would pay any shortfail or deficit on the installments, then likewise the Defendant's undertaking to the Plaintiff ended. Thus, under the terms of the Letter of Undertaking, the Plaintiff was not entitled to claim the sum of RM17,818,786.66 from the Defendant, and the letter of undertaking did not make the Defendant liable for the whole outstanding sum under Reka’s loan. Analysis and decision 1%*Ground: The disparity between the date of the Letter of Offer mentioned in the Letter of Undertaking to the date of the Reka Letter of Offer 15. The contents of the one-page Letter of Undertaking, transcribed on the Defendant's letterhead, are set out in full below: Page 6 of 25 “Date: 09 OCT 2018 To: BANK KERJASAMA RAKYAT MALAYSIA BERHAD Business Banking 26 Floor, Menara 1, Menara Kembar Bank Rakyat, No. 33, Jalan Rakyat 50470 Kuala Lumpur Dear Sirs, Re: LETTER OF UNDERTAKING Reference is made to BANK KERJASAMA RAKYAT. MALAYSIA BERHAD (‘the Bank’) Letter of Offer dated 2°9 April 2018. In consideration of the Bank, agreeing to grant and continuing to grant to REKA INDAH DEVELOPMENT (PENANG) SDN. BHD. (Company No. 436968-U), a company incorporated in Malaysia with its registered office at 1-G-1, Sri Pelangi, Jalan Bukom, 10150 Pulau Pinang and a place of business at E-30-2, Bay Avenue, Lorong Bayan Indah 2, 11900 Bayan Lepas, Pulau Pinang (‘the Customer’) a Term Financing-i Facility of RM33,000,000.00 (Restructure) under the Shariah principle of Murabahah (adopting the practice of Tawarruq) (“the Facility”), we, being the Chargor HEREBY IRREVOCABLY AND UNCONDITIONALLY UNDERTAKE as follows: Page 7 of 25 (a) (b) to cover any deficit/shortfall on the instalment due by the Customer to the Bank; to ensure payment of the instalment are made by the Customer to the Bank according to the payment schedule. We hereby further confirm and agree that our above undertaking shall be irrevocable unless and until the Bank gives us a written release of our above undertaking or upon full settlement of all amount outstanding under the Facility. This undertaking shall be in addition to and is not intended fo supersede any undertakings given by us earlier in relation to the Facility. Yours faithfully, for and on behalf of PRISMA BUMIRAYA SDN. BHD. (Company No. 877026-X) Mohd Rafek Ismail Bin Ibrahim Mohd Ikhwan Ibrahim NRIC No: 840530-07-5777 NRIC No: 820708-07-5379 Designation: Director Designation: Director” Page 8 of 25 16. 17. The Defendant's objection is that the Letter of Undertaking mentions a “Letter of Offer dated 2 April 2018” whereas the Reka Letter of Offer is dated 2 July 2018. In dismissing the Plaintiff's earlier application for summary judgment, | had said this in paragraphs 12-17 of my Judgment: “12. The Defendant contends that the reference in the first 13. paragraph of the Letter of Undertaking to a “Letter of Offer dated 2nd April 2018” when the Reka Letter of Offer was dated 2 July 2018 makes for a triable issue. Though a letter of undertaking is not one of the documents required by Item 14.0 of Section 1 of the Reka Letter of Offer as security for the Loan, it is mentioned in Item 19.0 B of Section 1 as an Additional Conditions Precedent: “Submission of Letter of Undertaking by the Customer and Prisma Bumiraya Sdn Bhd to cover any deficit/shortfall on the installment due and to ensure payment are made according to the payment schedule.” ! note that the Letter of Undertaking the Defendant gave the Plaintiff is for those exact same matters. Page 9 of 25 14. However, the Plaintiff did not pick up on Item 19.0 B of Section 1, but instead contended that the reference in the Letter of Undertaking to a “Letter of Offer dated 2°¢ April 2018” was merely a “kesilapan Klerikal” (clerical error). To this, the Defendant retorted that the Plaintiff was not in a position to assert that, because the Defendant authored and issued the Letter of Undertaking to the Plaintiff. 15. Without in any way deciding whether the reference in the Letter of Undertaking to a “Letter of Offer dated 2°¢ April 2018” was a clerical error or not, | would hold that making that particular assumption that it was clerical error is not foregone or automatic. Further, asking the Court to assume so and make a finding of fact on an assumption when a_ confirmatory explanation is more desirable points towards a full trial rather than a summary decision. 16. The Plaintiff also submitted that the onus was on the Defendant to adduce the Letter of Offer dated 2" April 2018 mentioned, to prove that the Letter of Undertaking did not relate to the Reka Letter of Offer, and that by failing to do so, the Court should invoke the adverse inference against it under s. 114(g) of the Evidence Act, 1950. However, in my opinion, that inference could be applied equally to the Plaintiff, if not more. Any letter of offer for the Loan would have been issued by the Plaintiff to Reka, and the Defendant would not be a party to that. As it was Page 10 of 25 18. the Plaintiff who issued the Reka Letter of Offer, the Plaintiff could just have easily have unequivocally asserted - but did not — that there was no Letter of Offer dated 2"4 April 2018 to Reka, and that the only letter of offer to Reka for the Loan was the Reka Letter of Offer and no other. Such unequivocal assertion may have tipped the scales and shifted the onus onto the Defendant. But without it, this issue still needs to be resolved at a trial. 17. But for me, the bigger obstacle the Plaintiff faces is whether under the terms of the Letter of Undertaking it was entitled to claim the sum of RM17,818, 786.66 from the Defendant. This is more so when the Plaintiff had terminated and recalled the Loan Facility in 2020, obtained summary judgment against Reka and the Guarantors the same year, and only the following year pursued a claim against the Defendant on the Letter of Undertaking. The Defendant has understandably contended that the Plaintiff has brought this action against it as an afterthought. In my opinion, this disparity between what the Letter of Undertaking identifies as the Reka’s Letter of Offer and the actual date of Reka’s Letter of Offer is something that can be resolved at a trial. The Plaintiff can always call a witness to clarify this discrepancy/disparity and whether the reference to a “Letter of Offer dated 2” April 2018” Page 11 of 25 19. in the Letter of Undertaking is a misnomer or a clerical error, as the Plaintiff contends. Being something that can be resolved at a full trial, it is not something that can justify striking out the claim altogether. My belief remains that the bigger obstacle the Plaintiff faces is whether under the terms of the Letter of Undertaking it was entitled - to claim the sum of RM17,818,786.66 from the Defendant. That brings us to the Defendant’s second ground for striking-out. Ground 2: Whether under the terms of the Letter of Undertaking 20. the Plaintiff was entitled to claim the sum of RM17,818,786.66 from the Defendant In paragraphs 1-6 of the Pernyataan Tuntutan Terpinda, the Plaintiff set out the parties, Reka’s Loan and the Letter of Undertaking. Then, in paragraphs 7-11 the Plaintiff pleaded as follows: “7. Pada setian masa yang material, pihak Pelanggan dan/atau Penjamin-Penjamin telah gagal untuk mengemaskini pembayaran ansuran kepada pihak Plaintif dan gagal untuk mematuhi terma- _ ferma pembayaran yang telah dipersetujui. Atas pemecahan kontrak oleh Pelanggan dan Penjamin-Penjamin, pihak Plaintif Page 12 of 25 felahpun menamatkan Kemudahan tersebut melalui Notis Penamatan dan Tuntutan bertarikh 7.1.2020 dan menuntut jumlah keseluruhan terhutang berjumlah RM20-400-586.96 RM23,491,095.23 setakat 48-2.2020 31.12.2019. Walau bagaimanapun, Pelanggan dan/atau Penjamin-Penjamin telah gagal untuk mematuhi Notis Penamatan dan Tuntutan tersebut untuk menyelesaikan jumlah keseluruhan yang terhutang. Oleh yang demikian, Plaintif telah memfailkan Writ dan Pernyataan Tuntutan ke atas Pelanggan dan juga Penjamin- Penjamin melatui Guaman No. WA-22M-141-02/2020 di Mahkamah Tinggi Kuala Lumpur. Suatu Penghakiman Terus di bawah Aturan 14 Kaedah-Kaedah Mahkamah 2012 telah diperoleh ke atas Pelanggan dan Penjamin-Penjamin setelah Mahkamah mendengar tuntutan Plaintif ke atas meritnya. Berdasarkan kepada rekod Plaintif, jumlah ansuran tunggakan (arrears) setakat tarikh_matang Kemudahan_ tersebut pada 7.1.2021 adalah sebanyak RM 17,818,786.66. Pihak Defendan pada setiap masa yang material adalah bertanggungan ke atas jumlah tunggakan tersebut sepertimana Akujanji yang diberikan pada 9.10.2018.” (emphasis added) Page 13 of 25 “10. Pihak Plaintif telah pada 5.7.2021 mengetuarkan Notis Tuntutan yang bertarikh 5.7.2021 bagi menuntut jumlah tunggakan tersebut sebanyak RM17,818,786.66 setakat 30.6.2021 untuk tunggakan yang telah matang setakat 7.1.2021. Walau bagaimanapun, Defendan gagal, cuai dan/atau abai untuk menjelaskan jumlah yang dituntut dalam tempoh 14 hari dari tarikh notis tersebut dikeluarkan. 11. Oleh yang demikian, Plaintif dengan ini menuntut dari Defendan seperti berikut: (a) Jumlah sebanyak RM17,818,786.66 setakat 30.6.2021; (b) Faedah pada kadar 5% setahun ke atas jumlah RM 17,818,786.66 dari tarikh penghakiman sehingga tarikh penyelesajan penuh; (c) Kos; (d) Kos atas dasar peguam anakguam; dan (e) _Lain-lain relip yang pada hemat Mahkamah adil dan suai manfaat.” - Page 14 of 25 21. 22. 23. 24. From these paragraphs, it is clear that the Plaintiff's entire case hinges on the interpretation and construction of the Letter of Undertaking in the context of the Reka Letter of Offer. In that light and given that the facts of this case are rather straightforward and incomplicated, then the conditions are ripe for determining whether the Plaintiff's claim can be struck-out. It is also clear from the Pernyataan Tuntutan Terpinda that, notwithstanding that the Plaintiff had terminated and recalled Reka’s Loan in January 2020, it is still claiming against the Defendant the outstanding installments “setakat tarikh matang Kemudahan tersebut” (the maturity date of Reka’s Loan). According to the Penyata Akaun, the Plaintiff is claiming the whole outstanding amount under Reka’s loan. As to what would be the the maturity date of Reka’s Loan, paragraph 9 of the Pernyataan Tuntutan Terpinda states it is 7 January 2021. Item 9 of Section 1 of the Reka Letter of Offer entitled “Specific Terms and Conditions” states: Page 15 of 25 “Facility Tenure: Up to Twenty Four (24) months from the date of the first disbursement of the Facility” 25. Under Item 13.0 of the same Section 1 of the Reka Letter of Offer is on the payment of the Murabah Sale Price, i.e. repayment of the Reka Loan. It states: “The Payment of Sale Price shall be by Twenty Four (24) monthly instalment as follow: instalment_Amount Per Instalment (RM) Number of Instalments Total (RM) 48 -23¢ 1,539, 285.00 23 35,403,555.00 24th 1,539,276.12 1 4,539,276.12 24 36,942,831.12 26. Note (ii) to Item 13.0 states: “The first (18!) payment of the Murabahah sale price shall be due one (1) month after the first (15!) disbursement of the Facility.” 27. As the Plaintiff has pleaded that the maturity date of the Reka Laon is 7 January 2021 (i.e. the 24" month), then by Note (ii) to Item 13.0, the Reka Loan would have been disbursed to Reka in late 2018 or early 2019. Page 16 of 25 28. 29. 30. 31. Thus, when the Plaintiff terminated Reka’s Loan in January 2020, the Facility Tenure had only run about half or just less than half its course. Up until then, only around twelve (or less) of the twenty-four instalments had been paid. Under the Letter of Undertaking, the Defendant undertook two things, and they are worth setting out here again: ‘“(a) to cover any deficit/shortfall on the instalment due by the Customer to the Bank; (b) to ensure payment of the instalment are made by the Customer to the Bank according to the payment schedule. Only the first involves an actual monetary undertaking and obligation; the second is about making sure Reka pays each instalment on time according to the repayment schedule. That first obligation under the Letter of Undertaking, on its express terms, appears to be restricted to cover “any deficit/shortfall on the instalment due” from Reka to the Plaintiff. Page 17 of 25 32. 33. 34. The terms “deficit” and “shortfall” are synonymous and can be used interchangeably. They both mean “the amount by which something is less than what is required or expected”. The use of the word “instalment” in the singular strongly indicates to me that what the Defendant had actually undertaken to the Plaintiff was to make up any difference between the amount of the monthly instalment and the amount Reka actually paid. For example, for the month of April 2020 when the monthly instalment was RM1,539,285.00, if Reka paid only RM1,200,000.00, then what the Defendant undertook was to pay the differential of RM339,285.00. It would necessarily follow that, for the Defendant to fulfill that undertaking, it would have to be informed by the Plaintiff each time there was shortfall or deficit in the monthly instalment that Reko made or failed to make. Page 18 of 25 35. 36. The Defendant contended that the Plaintiff had never informed it of any monthly instalment that Reko had failed to make full payment of. Though the Plaintiff did adduce in its affidavit opposing the Defendant’s Application a Setter dated 11 November 2019 purportedly notifying the Defendant that the arrears in Instalments as at that date was RM2,307,956.55, and required the Defendant to make payment on or before 29 November 2019, the Defendant denies receiving it. | note too that, even though that letter stated that it was being sent “By Courier’, the Plaintiff did not adduce any evidence of actually having sent it. Furthermore, the Plaintiff did not even plead that letter dated 11 November 2019 in its Pernyataan Tuntutan Terpinda. As Raja Azlan Shah LP said in United Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) Sdn Bhd [1983] 1 MLJ 206: “ . we cannot but observe that any defect or omission in the Statement of Claim cannot be made good by affidavit evidence.” Page 19 of 25 37. 38. 39. Nevertheless, what this letter dated 11 November 2019 does indicate is that, as at that date, Reka had not fully paid the instalments for September 2019 and October 2019, as the sum of RM2,307,956.55 demanded was more than one monthly instalment of RM1,539,285.00 but less than two. In any event, the Plaintiff did not pursue the Defendant for payment on its undertaking when there was no payment of that sum by 29 November 2019. Instead the Plaintiff then elected over a month later (when the amount of the outstanding instalments had risen to RM3,331,623.77), to issue the demands dated 7 January 2020 to Reka and to the Guarantors, demanding the outstanding instalments and then automatically terminating / recalling Reka’s Loan. By electing to automatically recal and terminate the Reka Loan and commence legal action in February 2020 against Reka and the Guarantors for the full outstanding sum under Reka’s Loan, the Plaintiff therefore intentionally elected neither to continue with Reka’s Loan nor allow Reka to repay it by instalment. By the same token, it must be taken to have also elected to no longer hold the Page 20 of 25 40. A1. Defendant to its undertaking to make up any deficit or shortfall in the instalment payments. With no installments to make after the recall/termination, there could be no further obligation on the Defendant to cover any deficit/shortfall. In other words, deficit or shortfall in the instalment payment under Reka’s loan would no longer arise. Thus, the Plaintiff's allegation in paragraph 9 of the Pernyataan Tuntutan Terpinda that the sum of RM17,818,786.66 was the “jumlah ansuran tunggakan (arrears) setakat tarikh matang Kemudahan tersebut pada 7.1.2021” is also erroneous because there was no longer any “farikh matang’; the Plaintiff had terminated and recalled the Reka Loan well before it matured on that date, and there were no instalments left by then. In fact, the issue of instalments under the Reka Loan had ended in January 2020 upon the automatic termination and recall of Reka’s Loan. Page 21 of 25 42. 43. 44. Further, by claiming for the sum of RM17,818,786.66 as ‘jumlah ansuran tunggakan (arrears) setakat tarikh matang Kemudahan tersebut pada 7.1.2021”, the Plaintiff is in effect requiring the Defendant to pay-up all the remaining instalments of Reka’s Loan, which would be akin to trying to make the Defendant be liable for the whole outstanding sum due under the Reka Loan. The Plaintiffs Statement of Account consisting of “Prinsipal Keuntungan’” and “Ta’widh’ also suggests that the Plaintiff is not just claiming the remaining instalments but the whole outstanding amount under the Reka Loan. That is tantamount to putting the Defendant on par with the Guarantors. However, the Reka Letter of Offer — which the Plaintiff authored and issued — does not categorize the Letter of Undertaking as a security document alongside the Guarantee under Item 14.0. This indicates that, even at the outset, the Plaintiff itself did not see the Defendant, under the Letter of Undertaking, as being on par with the Reka or the Guarantors as being liable for the entire outstanding balance if Reka defaulted and the Loan is terminated. It suggests that the Plaintiff was satisfied and agreeable for the Defendant to Page 22 of 25 merely undertake to make sure those installment payments were made and that it would make up any deficit or shortfall. 45. Furthermore, the terms of the Letter of Undertaking do not expressly make the Defendant liable for the whole outstanding sum due under Reka’s Loan. The Plaintiff cannot import terms into the Letter of Undertaking when its terms are clear and unambiguous. In Koh Siak Poo v Perkayuan OKS Sdn Bhd & Ors [1989] 3 MLJ 164, Hashim Yeop A. Sani CJ said: . “Where the written contracts are clear and unambiguous the court should not go behind the written terms of the contract to introduce or add new terms to it.” 46. In Setapak Height’s Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ 131, Abdul Kadir Sulaiman JCA said: [27] It is axiomatic that it is the duty of the court to give effect to the clear intention of the parties as expressed in cl. 5(b) of the agreement which is in clear, unambiguous and unmistakable language. In the Central Bank of India Ltd, Amritsar v. Harford Fire Insurance Co Lid AIR [1965] SC 1288 it was held that: Page 23 of 25 Now it is commonplace that it is the court's duty to give effect to the bargain of the parties according fo their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do, The court must give effect to the plain meaning of the words however much it may dislike the result.” 47. In my view, by this action, the Plaintiff is seeking to make the Defendant liable for the whole outstanding amount under Reka’s Loan when under the Letter of Undertaking the Defendant was not supposed to be so liable. Conclusion 48. | accordingly allowed with costs the Defendant's Application in Enclosure 46 to strike-out the Plaintiff's claim. As | had done so earlier in dismissing the Plaintiffs Application for Summary Judgment in Enclosure 9, | ordered the Plaintiff to pay costs of RM5,000.00 to the Defendant, subject to allocator. Page 24 of 25 Dated this 13" day of June 2022 lan Sutdiman Judicial Commissioner High Court, Kuala Lumpur Counsel: Mr Nasim Shafie (Messrs Sidek Teoh Wong & Dennis (Kuala Lumpur)) for the Plaintiff. Ms Ang Mei Huai (Messrs MH Ang & Co. (Georgetown)) for the Defendant. Cases: Diamond Peak Sdn Bhd & Anor v Tweedie [1980] 2 MLJ 31 Koh Siak Poo v Perkayuan OKS Sdn Bhd & Ors [1989] 3 MLJ 164 Setapak Height’s Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ 131 Page 25 of 25,