Pengerusi Majlis Agama Islam Wilayah Persekutuan Alwasayet Travels & Tours Umrah Services Sdn Bhd

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR, DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN SIVIL) GUAMAN NO: WA-12BNCVC-110-11/2020 D! ANTARA PENGERUSI MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN . .PERAYU DAN ALWASAYET TRAVELS & TOURS UMRAH SERVICES SDN BHD (NO. SYARIKAT: 1108361-W) . .RESPONDEN DALAM PERKARA MAHKAMAH SESYEN DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA GUAMAN NO: WA-A52-49-07/2020 DI ANTARA ALWASAYET TRAVELS & TOURS UMRAH SERVICES SDN BHD (NO. SYARIKAT: 1108361-W) ...PLAINTIF DAN 1. MOHD RUSTAM BIN ROSHANDIN (NO. K/P: 830723-14-6189) 2. . MUHAMMAD SHUKRI BIN SANUSI (NO. K/P: 830417-14-5153) (KEDUA-DUANYA SEBAGAI PEMEGANG SAHAM KL DOWNTOWN HOLDINGS SDN BHD) 3. KL DOWNTOWN HOLDINGS SDN BHD (NO. SYARIKAT: 1163194-T) 4. PENGERUSI MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN DEFENDAN-DEFENDAN JUDGMENT Introduction 1. The 4" Defendant appealed to this Court against part of the decision of the learned Sessions Judge hearing a tenancy dispute between the Plaintiff and the Defendants. 2. The appeal is against the decision of the Judge ordering the return of the rental deposit to the Plaintiff. Facts 3. The Plaintiff had paid a sum of RM65,000 to purchase shares in the 3" Defendant a limited liability company. However the shares were not transferred to the Plaintiff. 4, Meanwhile the 3 Defendant had entered into a tenancy agreement with the 4 Defendant to rent a 15 stories building at Persiaran Dutamas, Kuala Lumpur (“the premises’). 5. On the promise by the 1% Defendant to sell the entire share in the 3 Defendant, the Plaintiff had paid a sum of RM115,550.00 as a rental deposit for the tenancy of the premises. 6. Ona termination of the tenancy the 4" Defendant insisted to return the deposit to the 3% Defendant as a party to the tenancy agreement despite knowing that the deposit had been paid by the Plaintiff. 7. The learned Sessions Judge allowed this deposit to be returned to the Plaintiff instead of the 3 Defendant and hence this appeal. The Issue 8. In the Court’s view the only issue arising in this case is whether it is legal to return the money to the Plaintiff although it is not a privy of the contract between the 3% Defendant and the 4" Defendant. Privity of Contract 9. To determine privity of contract the Court deemed it fit to rely on the provisions of the Contracts Act 1950 (“the Act”). 10. Section 2 of the Act explains in detail how an agreement is formed. For ease of reference to portion of the section detailing out the formation of agreement is reproduced here and is as follows: 3 11. (b) (c) (d) (e) when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal; when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted, becomes a promise; the person making the proposal is called the "promisor" and the person accepting the proposal is called the "promisee"; when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise ‘is called a consideration for the promise; every promise and every set of promises, forming the consideration for each other, is an agreement; From the facts of the case it is clear that the parties to the tenancy agreement are the 3% Defendant as the promisor and the 4! Defendant is the promisee. 12, 13. An essential element of the agreement is consideration. In this case the payment of deposit and payment of rental by the promisor are considerations for the 4" Defendant as promisee renting out the premise to the 3% Defendant as promisor. It is the duty of the promisor to provide the consideration but the Act allows the consideration to be paid by a 3 party. The relevant provisions are sections 41 and 42 of the Act which provides as follows: Section 41 If it appears from the nature of the case that it was the intention of the parties to any contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other cases, the promisor or his representatives may employ a competent person to perform it. ILLUSTRATIONS (a) Apromises to pay B a sum of money. A may perform this promise, either by personally paying the money to B, or by causing it to be paid to B by another; and, if A dies before the time appointed for payment, his representatives must perform the promise, or employ some proper person to do so. (b) A promises to paint a picture for B. A must perform this promise personally. 14. 15. 16. 17. Section 42 When a promisee accepts performance of the promise from a third person, he cannot afterwards enforce it against the promisor. In summary the above provisions allows the consideration to be paid by a 3" party. In this case the consideration was paid by the Plaintiff and not the promisor and the 4 Defendant had the knowledge that the consideration was paid by a 3" party by virtue of the payment being made by way of a cheque in the name of the Plaintiff. The effect of payment of consideration by a 3° party is as stated in section 42 of the Act that the promisee cannot now enforce the payment of the consideration against the promisor. In the Court’s view the payment of consideration by the Plaintiff as a 3 party does not make the Plaintiff a party or privy tof the agreement between the 3% and 4" Defendant. Under the terms of the agreement on termination of the tenancy agreement the deposit must be returned to the promisor and not to the 3" party. In short the 4" Defendant was obliged to return the deposit to the 3 Defendant. 18. The Court therefore decided that the learned Sessions Court's order to return the deposit to the Plaintiff was wrong and not supported by the law. Conclusion 19. In the upshot the Court allowed the appeal by the 4" Defendant with a cost of RM3,000 and set aside the learned Sessions Judge’s order. Dated: 11.10.2021 DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES: For the Appellant: Tetuan Adnan Sharida & Associates No. 3-2-2A, Jalan Medan PB 2A, Seksyen 9 43650 Bandar Baru Bangi For the Respondent: Tetuan Azmi Hussain & Co. No. 230-A Tingkat 1 Jalan Bandar 13 Taman Melawati 53100 Kuala Lumpur