Melindajit Kaur A/p Pritam Singh UNITED OVERSEAS BANK (MALAYSIA) BHD

WA-22NCC-557-10/2019 Kand. 109 20/06/2023 16:18:00 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) SUIT NO.: WA-22NCC-557-10/2019 BETWEEN PHUNITA A/P THEVATHESAN (NRIC No.: 810805-14-5974) (as the Administrator of the Estate of T. Ganesh a/l Thevathesan, deceased) ... PLAINTIFF AND UNITED OVERSEAS BANK (MALAYSIA) BHD (Company No.: 271809-K) … DEFENDANT GROUNDS OF JUDGMENT INTRODUCTION [1] In this action, the Plaintiff as the administrator of the estate of T.Ganesh all Thevathesan (“the Deceased” interchangeably, “the borrower”), claimed that the Deceased is not required to pay any sum outstanding to the Defendant (interchangeably, “the bank”) under a housing loan facility granted by the bank to the Deceased. [2] The Defendant denied the claim and counterclaimed against the Plaintiff for a sum of RM2,990,062.55 with interest thereon at the rate of 3.50% per annum above the Defendant’s Base Lending Rate (“BLR”) (wherein the BLR on 14.4.2017 was at the rate of 6.71% per annum) calculated on daily rest from 1.11.2017 until the date of full settlement. [3] During trial lasting 3 days, the Plaintiff called 2 witnesses to adduce evidence i.e. PW1 (Phunita A/P Thevathesan), PW2 (Lim Yok S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Chaw whilst the Defendant called 3 witnesses DW1 (Noorhashimah Binti Haji Mohamed Sani), DW2 (Cheah Phaik Se) and DW3 (Tan Chin Ann) in support of the defence. [4] I had on 3.4.2023 dismissed the Plaintiff’s claim, allowed the Counterclaim, and given broad grounds of decision. This judgment contains the full reasons for my decision. Background [5] By a letter of offer dated 29.7.2011 (“Letter of Offer”), the Defendant, at the request of the Deceased, granted to the Deceased, and the Deceased accepted a housing loan facility in the sum of RM3,103,268.00 (“Facility”) to: 5.1 finance the purchase of a 3-storey detached house known as Parcel No. OL-16, Type B, One Legenda Cheras, Selangor, Malaysia (“Property”), which the Deceased purchased from Nova Legend Development Sdn Bhd for a purchase consideration of RM4,292,800.00 under a sale and purchase agreement dated 11.10.2010 (“SPA”) executed between the Deceased and Nova Legend Development Sdn Bhd; 5.2 finance the premium (“Premium”) for the Mortgage Reducing Term Assurance (“MRTA”) policy taken on the Deceased’s life up to the sum of RM54,999.00; and 5.3 finance the legal fees, disbursement and stamp duty up to the sum of RM43,318.00. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 [6] In consideration of the Defendant granting the Facility to the Deceased and under the terms of the Letter of Offer, the Defendant and the Deceased entered into a Loan Agreement Cum Assignment dated 14.10.2011 (“LACA”) wherein the Deceased had absolutely assigned his rights, title and interest in the SPA and the Property to the Defendant. [7] The terms of the Letter of Offer and LACA, which were accepted by the Deceased, inter alia, state that: 7.1 the Deceased was to repay the Facility to the Defendant by monthly instalments of RM13,359.00 per month over a period of 40 years or until the Facility and all interest thereon are fully settled; 7.2 the Defendant is at liberty to release the housing loan facility in the sum of RM3,103,268.00 at any time upon completion of documentation regardless of whether the MRTA policy required to be taken up has been duly approved or finalised by relevant insurer or otherwise. Notwithstanding the release of the housing loan facility, the Deceased shall at his own cost and expense ensure all administrative matters and requirements for purpose of ensuring the perfection of MRTA are duly performed and complied with respectively; 7.3 the Defendant shall be entitled to vary the prescribed rate for the Facility to 2.25% per annum above the Defendant’s Base Lending Rate (“BLR”) with daily rests (or such other rate as the Defendant may at its sole and absolute S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 discretion prescribe from time to time) in the event the payment of instalment is 2 months in arrears; 7.4 interest at the rate of 3.5% per annum above the Defendant’s BLR or such other rate as the Defendant may at its sole discretion prescribe from time to time to be calculated on daily rests shall be charged on all utilization in excess of the implemented limit which exceed a period of 3 months; 7.5 additional interest at the rate of 1.0% per annum or such other rates as may be prescribed by the Defendant from time to time at its sole and absolute discretion, to be calculated on daily rests, shall be charged on any overdue instalment amount from the date of default until the date of full payment; 7.6 the Deceased was to pay all fees, costs and expenses incurred by the Defendant, including legal fees (on a full indemnity basis) in the Defendant’s recovery of the amounts due and owing by the Deceased to the Defendant; and 7.7 the certificate of the Defendant shall be conclusive evidence as to the amount outstanding, due and payable by the Deceased and shall be binding on the Deceased for all purposes, including legal proceedings. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 [8] The Letter of Offer as regards the financing of the Premium for the MRTA policy provides, inter alia, as follows: 8.1 the Deceased shall at his own cost and expense ensure that all matters and requirements for the purposes of ensuring the perfection of the MRTA policy are duly performed and complied with respectively – clause J(i), Package Terms and Conditions of the Letter of Offer; 8.2 the Deceased shall deliver the following documents, whichever applicable, to the Defendant within the Specified Period (within 2 months from 29.7.2011 or prior to the Defendant’s receipt of the Defendants’ solicitors’ advice advising the Defendant that it is in order to disburse the Facility or any part thereof, whichever is the earlier): 8.2.1 where the Premium is financed by the Defendant, a valid Letter of Approval from an insurer acceptable to the Defendant (“Specified Insurer”) approving the Deceased’s application for MRTA – clause J(iii)(1), Package Terms and Conditions of the Letter of Offer; or 8.2.2 where the Premium is not financed by the Defendant, the receipt issued by the Specified Insurer confirming that the Premium has been paid – clause J(iii)(2), Package Terms and Conditions of the Letter of Offer; S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 8.3 the Defendant is not liable for any actions, proceedings, claims, demands, losses, damages, costs and expenses and other liabilities of whatsoever nature or description which may be made or taken against or incurred or suffered by the Deceased in connection with any delay or failure to disburse the Facility or any part thereof – clause I(iii), Package Terms and Conditions of the Letter of Offer. [9] On 30.7.2011, the Deceased applied for the MRTA policy (“Application for MRTA”) from a Specified Insurer, one Prudential Assurance Malaysia Berhad (“Prudential”) vide Prudential’s Enrolment Form No.: 18306434. [10] By Prudential’s letter dated 20.10.2011 to the Deceased which was copied to the Defendant, the Deceased was informed by Prudential that, in order to process the Application for MRTA, the Deceased is required, amongst others, to go for a medical check-up/examination by Prudential’s preferred or Specialist Doctor and to undergo blood test, a full and microscopic examination of urine, a stress electrocardiogram test, chest x-ray test and to submit to Prudential a Personal Medical Attendant’s Report completed by the Deceased’s usual doctor (“Medical Check-Up or Medical Tests”). [11] The Deceased failed and/or neglected to attend to the request for Medical Check-Up or Medical Tests as required by Prudential. [12] Thereafter, Prudential had, via their letters dated 30.12.2011 and 4.1.2012 which were also copied to the Defendant, informed the Deceased that they were unable to proceed with the proposal for MRTA S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 and advised that the Application for MRTA has been treated as “Not Taken Up”. [13] As such, the Deceased had failed and/or neglected to fulfil the pre-conditions in the Letter of Offer relating to the MRTA (“Pre- Conditions for MRTA”). [14] As a result, no MRTA Coverage Was Effected for the Facility. [15] By letter dated 8.10.2012 to the Deceased, the Defendant notified the Deceased that the Defendant will withdraw the requirement for the Deceased to be insured by a MRTA to finance the MRTA Premium. [16] The loan sum under the Facility in the sum of RM3,036,696.82 was progressively released to Nova Legend Development Sdn Bhd. [17] On 16.1.2017, the Deceased passed away. [18] Thereafter, the Deceased’s estate failed, refused and/or neglected to regularize the Deceased’s account under the Facility and committed an event of default as defined in the Letter of Offer and LACA. [19] By reason of the foregoing, the Defendant had, by a letter dated 23.11.2017 issued by its solicitors, Messrs Khaw & Partners to the Plaintiff (“Letter of Recall and Termination”), cancelled and recalled the Facility and demanded payment of the sum of RM2,990,062.55, (“Outstanding Amount”), being the outstanding amount payable as at 4.11.2017 together with interest on the Outstanding Amount at the rate of 3.50% per annum above the Defendant’s Base Lending Rate (which, at that time, the BLR S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 was 6.71% per annum) calculated on daily rests from 1.11.2017 until the date of full settlement. [20] Despite the issuance of the Letter of Recall and Termination, the Plaintiff failed, refused and/or neglected to pay the Outstanding Sum or any part thereof to the Defendant. [21] The Plaintiff is the sister of the Deceased, and as the administrator of the estate of the Deceased, has commenced this action against the Defendant on the basis that the loan sums outstanding to the Defendant should have been covered by the MRTA policy. The Defendant in defending the action, asserted that no MRTA policy was ever obtained by the Deceased, that there was no obligation on the part of the Defendant to obtain the MRTA policy and that the claim is time barred. By way of Counterclaim, the Defendant claimed for the amount outstanding under the Facility granted to the Deceased. The Plaintiff’s case [22] From the Statement of Claim, the Plaintiff claimed that: 22.1 That the Deceased has paid for or was charged by the Defendant for the MRTA Premium and the Defendant did not at any time refund the MRTA payment made by the Deceased; 22.2 As the Defendant was to arrange for the MRTA to be taken for the Deceased’s interest, the Defendant had in breach of the loan agreement failed to obtain the MRTA; the S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 Deceased’s estate as such, is relieved of any obligation to pay the Defendant the Outstanding Sum under the Facility granted by the Defendant to the Deceased; and 22.3 The letter dated 2.10.2012 allegedly signed by the Deceased agreeing for the MRTA to be revoked is forged. Issues [23] From the pleadings and the evidence laid before the Court, the issues that arise for consideration may in my view be narrowed down as follows: 23.1 Whether the Plaintiff’s claim is time barred? 23.2 Was it incumbent upon the Defendant to arrange and obtain the MRTA? 23.3 Whether the letter dated 2.10.2012 is a forgery? 23.4 Whether the Plaintiff is entitled to the relief sought and whether the Counterclaim should be allowed? Burden of proof [24] The Plaintiff bears the legal and evidential burden to prove on a balance of probabilities of establishing a case against the Defendant throughout the trial whilst the Defendant bears the same burden to prove its Counterclaim. In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [25] I now deal with the issues. Evaluations and Findings [26] There is no dispute that the loan under the Facility has been fully disbursed. Whether the Plaintiff’s claim is time barred? [27] The Defendant contended that the Plaintiff’s action brought by the Plaintiff premised on the purported failure of the Defendant to obtain the MRTA coverage of the Facility after the expiration of 6 years from the date on which the Plaintiff’s cause of action accrued, is time-barred under Section 6 of the Limitation Act 1953. Section 6 reads: “Limitation of actions of contract and tort and certain other actions 6. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say— S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 (a) actions founded on a contract or on tort; (b) actions to enforce a recognisance; (c) actions to enforce an award; (c) actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture. (2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action. (3) An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due. (4) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any written law shall not be brought after the expiration of one year from the date on which the cause of action accrued: Provided that for the purpose of this subsection the expression "penalty" shall not include a fine to which a person is liable on conviction for a criminal offence. (5) Nothing in this section shall apply to— (a) any cause of action within the Admiralty jurisdiction of the High Court which is enforceable in rem other than an action to recover the wages of seamen, or (b) any action to recover money secured by any mortgage of or charge on land or personal property. (6) Subject to sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 ground in equity.” [28] It was posited on the Defendant’s behalf that if indeed it is the Defendant’s responsibility to obtain the MRTA coverage in relation to the Facility for the Deceased (which is denied), the Plaintiff’s cause of action would have between 2011 and 2013. The Defendant contended that there are three different dates in which the cause of action may have accrued: 28.1 on 30.12.2011, when Prudential informed the Deceased that the Deceased’s Application for MRTA is treated as “Not Taken Up” vide it’s letter dated 30.12.2011 (Exhibit D3) to the Deceased and copied to the Defendant; 28.2 on 8.10.2012, when the Defendant, vide its letter (Exhibit D1) informed the Deceased that the Defendant will withdraw the requirement for the Deceased to be insured by MRTA and proceeded to cancel the facility granted to the Deceased to finance the MRTA Premium (Exhibit D1); OR 28.3 on 17.1.2013, when the Defendant released/ disbursed the last progressive payment (“Last Progressive Payment”) of the loan sum under the Facility without the Premium for the MRTA. [29] In my judgment, where the defence of limitation is raised, the burden to prove that the action was commenced within the limitation period shifts to the plaintiff (see Mohd Sari bin Datuk Okk Hj Nuar & Ors v Asia General Equipment and Supplies Sdn Bhd & Ors [2010] 5 MLJ 766; (CA); Ong Ah Bee v Hii Chung Siong, Robin [1993] 1 CLJ 504 at p 505). S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 13 In Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341, at p 352, the House of Lords per Lord Pearce said: “I agree that when a defendant raises the statute of limitation the initial onus is on the plaintiff to prove that his cause of action occurred within the statutory period. When, however, a plaintiff has proven an accrual of damage within the six years … the burden passes to the defendants to show that the apparent accrual of a cause of action is misleading and that in reality the cause of action accrued at an earlier date.” [30] To ascertain when the limitation clock starts to tick, I would refer to Reeves v. Butcher [1891] 2 QB 509 at 511 where, Lindley L.J pronounced: “The cause of action arises at the time when the debt could first have been recovered by action. The right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.” [31] The Federal Court decision in Nadefinco Ltd v Kevin Corporation Sdn Bhd [1978] 2 MLJ 59 adopted the English Court of Appeal’s decision of Reeves v Butcher supra and pronounced as follows: “The right to bring an action may arise on various events; but it has always been held that the statute runs from the earliest time at which an action could be brought.” [32] It is apposite to refer to a few interesting excerpts relevant to a defence of limitation: (i) the Federal Court’s pronouncement in Haji Hussin bin Haji Ali & Ors v. Datuk Haji Mohamed bin Yaacob & Ors [1983] 2 MLJ 227 which adopted the decision in Riches v. Director S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 14 of Public Prosecutor [1973] 2 All ER 935: “…it is difficult to see why a defendant should be called on to pay large sums of his own money and a plaintiff permitted to waste large sums of his own or somebody else’s money in an attempt to pursue a cause of action which has already been barred by statute of limitation and must fail..” (ii) the statement of Lord Greene MR in Hilton v. Sutton Steam Laundry (1946) 1 KB 65 at page 73, where he said: “But the statute of limitations is not concerned with merits. Once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled, of course, to insist on his strict rights.” (iii) Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833, where the Privy Council at page 839 j to 840 a, per Lord Brightman said: “When a period of limitation has expired, a potential defendant should be able to assume that he is no longer at risk from a stale claim. He should be able to part with his papers if they exist and discard any proofs of witnesses which have been taken, discharge his solicitor if he has been retained, and order his affairs on the basis that his potential liability has gone. That is the whole purpose of the limitation defence.” (iv) Tan Kong Min v Malaysian National Insurance Sdn Bhd [2006] 1 MLJ 601, where the Federal Court held: “The point in time where all the material facts were said to be in existence to render the cause of action complete would be after the sale had been S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 15 conducted and the differential amount remaining due to the respondent had been ascertained.” [33] The Plaintiff posited however that the cause of action arose when the Deceased passed away on 16.01.2017, because that was the date, the estate was entitled to make the claim. The Plaintiff contended that it was for the Defendant to arrange for the MRTA policy, which could have been arranged by the Defendant any time before the Deceased passed away. The Plaintiff further asserted that in the circumstances, and in any event, based on the pleadings, the Defendant should be estopped from raising the defence of limitation. The Plaintiff however did not elaborate on why estoppel applied. [34] I do not agree with the Plaintiff’s above postulations as a consideration of the terms and conditions of the Facility show it was never the obligation of the Defendant to obtain the MRTA. I find that it does not avail the Plaintiff to so argue as the pertinent point is that the Deceased failed to comply with the Medical Check-Up or Medical Tests as requested by Prudential. [35] I am thus inclined to agree with the Defendant. Looking at the above 3 events postulated by the Defendant, in my view, the limitation clock started ticking at the earliest from 8.10.2012 (when the Defendant vide its letter informed the Deceased that the Defendant will withdraw the requirement for the Deceased to be insured by MRTA); but even taking the Plaintiff’s case to the highest, if the date of 17.1.2013 is used (which is the date when the Defendant released/ disbursed the last progressive payment of the loan sum under the Facility), I find that the action filed on 1.10.2019 after the expiry of 6 years, is time barred in either event. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 16 [36] In any case, PW1 ceded that her claim is time barred: NOP Enc. 91 page 43: “YJC Do you at least agree with me that your claim against the Defendant was filed in October 2019? PHUNITA Yes. YJC Do you agree with me that the Defendant’s breach, if at all, happened more than six years ago? PHUNITA Yes.” [37] If the Plaintiff is unable to prove the action is brought within the limitation period, the claim shall be dismissed - Mohd Sari bin Datuk Okk Hj Nuar & Ors v Asia General Equipment And Supplies Sdn Bhd & Ors [2010] 5 MLJ 766. [38] Having found that the Plaintiff ’s claim is statute barred, on this ground alone, the claim should be dismissed in limine. The other issues raised, in my view are no longer relevant. For the sake of completeness however, I will deal with the other issues. Was it incumbent upon the Defendant to arrange and obtain the MRTA? [39] This court’s answer is a "no” upon a construction of the clear and plain wordings of the Letter of Offer dated 29.7.2011 and LACA dated 14.10.2011. There is nothing in these documents which imposed the burden on the Defendant to ensure that the Facility is covered by the MRTA. Accordingly, the Defendant cannot be held liable in the case where S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 17 no MRTA coverage was effected as happened in this case. This is because: 39.1 Clause I (ii)Package Terms and Conditions of the Letter of Offer provides explicitly that the Defendant is at liberty to release the housing loan facility in the sum of RM3,103,268.00 at any time upon completion of documentation regardless of whether the MRTA policy required to be taken up has been duly approved or finalised by relevant insurer or otherwise. This clause further provides that notwithstanding release of the facility, borrower shall at his own cost and expense ensure all administrative matters and requirements for purpose of ensuring the perfection of MRTA are duly performed and complied with respectively; 39.2 My view is fortified by clause J(ii), which states the Deceased shall at his own cost and expense ensure that all matters and requirements for the purposes of ensuring the perfection of the MRTA policy are duly performed and complied with respectively. Further, Clause J(iii)(1) states that where the Premium is financed by the Defendant, the Deceased borrower is to deliver a valid Letter of Approval from an insurer acceptable to the Defendant (“Specified Insurer”) approving the Deceased’s application for MRTA by the specified period. In this regard, “specified period” is defined at Clause A (i)1(a) as within 2 months from 29.7.2011 or prior to the Defendant’s receipt of the Defendants’ solicitors’ advice advising the Defendant that S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 18 it is in order to disburse the Facility or any part thereof, whichever is the earlier; 39.3 The Defendant NEVER received a Letter of Approval from Prudential approving the Deceased’s Application for MRTA, which is a pre-requisite for the Defendant to release the portion of the Facility for financing the Premium to Prudential in accordance with Clause I(i)(1) and J(iii)(1), Package Terms and Conditions of the Letter of Offer. In fact, Cheah Phaik See (DW3), a Director in the Partnership Distribution Sale Management department of Prudential, during examination-in-chief, confirmed NO MRTA COVERAGE WAS EFFECTED for the Facility. [40] As for the Plaintiff’s reliance on DW3’s evidence, I find it does not add to the Plaintiff’s case one whit, notwithstanding that DW3 testified it is the bank that submits the MRTA. [41] After the MRTA was submitted, the Deceased borrower has to go for his medical test. DW3 did testify that because of the large amount assured, the insurer required the borrower to undergo the medical test. To my mind, it cannot be gainsaid in the very concept of insurance that before assuming the risks/eventualities and undertaking to provide an agreed compensation, the intended insurer is entitled to require medical tests be done to enable the insurer to assess the actual risks being undertaken before providing coverage to the insured. It is to be noted that the requirement of a medical test was not imposed by the Defendant, and the Defendant bank cannot be undergoing the medical tests for the Deceased borrower. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 19 [42] Given as a fact that the terms of the Letter of Offer are clear, it fell upon the Borrower to undergo the medical tests, and deliver to the Defendant bank the Letter of Approval from the insurer but both conditions were not complied by the Borrower. [43] It is trite that parties are bound by what they signed in the absence of fraud or misrepresentation. The parties signing the document are bound by its terms. The Court is to give effect to what the parties have agreed to. See: 43.1 Setapak Heights Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 2 CLJ 337: “[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 Ltd AIR [1965] SC 1288 it was held that: Now it is commonplace that it is the court’s duty to give effect to the bargain of the parties according to 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.” 43.2 Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122 at para 31: “In law, parties are bound by the terms of the contract that they have entered into and likewise in this case, the rights and obligations of S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 20 the parties are governed by the agreement. The intentions of the parties are to be gathered from the language used. They are presumed to have intended what they said... The duty of the court is to give effect to the clear intention of the parties as expressed in the agreement. If the words are clear, unambiguous and in unmistakable language, there is very little the court has to do. The court must give effect to the plain meaning of the words however much it may dislike the result.” [44] I find the very wording of Clause I (i) and Clause I (ii) when read together, do not make it mandatory for the MRTA to be taken before the loan is disbursed. In this regard, I find PW1’s opinion on who bears the responsibility in getting MRTA is not binding on the court. This is because it is trite that the construction of the documents involved is a question of law to be determined by the court. It is not for the parties or their counsel to say what the document says or means, see - Silver Concept Sdn Bhd V Brisdale Rasa Development Sdn Bhd (Formerly Known As Ekspidisi Ria Sdn Bhd) [2005] 4 MLJ 101 CA. Silver Concept (supra) was referred to by the Federal Court in Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang and other appeals [2018] 1 MLJ 1. [45] I also find that exhibit D1 being the letter dated 8.10.2012 is admissible as evidence as DW2 was one of the signatories. Both DW2 and DW1 testified that the said letter was sent to the Borrower to notify him that the Defendant will withdraw the requirement for the Borrower to be insured by MRTA and proceed to cancel the facility to finance the MRTA Premium. I also find that the fact that the Bank was copied the letters of 20.10.2011 (being reminder to undergo test in IDD2, the letter dated 30.12.2011 (IDD3) and 4.1.2012 (IDD4) treating the application for MRTA as not taken up does not translate into an obligation for the bank S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 21 to obtain the MRTA when the borrower himself neglected to undergo the medical tests required by the insurer. I had directed in the course of the trial for parties to address on the admissibility of these letters in post trial submission. These 3 letters by Prudential were copied to the Defendant and received by DW4. Significantly, it was not put to any of the Defendant’s witnesses that these letters were fabricated. I see no reason at all why these letters are not admissible; they are also relevant and as such, are converted to exhibit 2, exhibit 3 and exhibit 4 respectively. The question that remains is what probative value is to be given them. [46] Regardless, of the Plaintiff’s contention that the Deceased did not receive the letters, I am of the opinion that even without considering the receipt of the letter dated 8.10.2012 issued by the Defendant, and the 3 letters from Prudential Assurance to the Deceased, the Facility would still not be covered by MRTA any how as the Deceased: 46.1 Did not obtain any approval from Prudential or any other Specified Insurer in relation to the Deceased’s Application for MRTA; and 46.2 Did not fulfil the Pre-Conditions for MRTA. [47] With respect, it seems to me that the Deceased is the author of his own misfortune by neglecting to undergo the medical tests. He therefore cannot consign the bank to villain status. When he died, the stark reality is, there was no MRTA in place. [48] Of significant importance to note, is that it was an agreed fact at para 3.1 of the statement of agreed facts in enc. 51 that the Deceased S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22 must himself ensure compliance of all matters and requirements for purpose of ensuring the perfection of MRTA are duly performed and complied. That is a judicial admission in itself and puts paid the assertion that it is the bank’s obligations to obtain the MRTA. In Johandra Realty Sdn Bhd & Anor v Ketua Pengarah Jabatan Pengairan dan Saliran Malaysia & Ors [2017] 10 MLJ 1, the Court held that an admission is admissible against the party making it, and the same principle applies to a statement of agreed facts. I am in accord with that view, otherwise the purpose of having a statement of agreed facts will be rendered otiose. [49] The Plaintiff having in fact taken a factual position which was agreed by the Bank, there cannot be any reopening of the agreed fact. It would not be just. In addition, this agreed fact was neither withdrawn or amended before the trial commenced or during the course of the trial and still remains as an agreed fact. Be that as it may, in my judgment, even if the agreed fact is not considered, I would still come to the same conclusion that upon a construction of the clear and plain wordings of the Letter of Offer dated 29.7.2011 and LACA dated 14.10.2011, it is not incumbent upon the Defendant to arrange and obtain the MRTA. This was alluded to in paragraph 39 above. [50] In answering this issue, I would also state that based on similar facts, I am in total accord with the observations of Vernon Ong J (as His Lordship then was) in Jayakumari a/p Jeraman v CIMB Bank Bhd & Anor [2012] MLJU 968; [2012] MLJU 968. In this case, the plaintiff, as the widow of one Ganasanmurthi a/l Chinappan (deceased) brought a claim against the 1st defendant bank for negligence and breach of contract. The deceased had applied for a housing loan from the 1st defendant to finance the purchase of a low cost house and was offered a loan facility S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 23 comprising of a housing loan and a MRTA. The low cost house was charged in favour of the 1st defendant. After the deceased’s demise, the bank initiated foreclosure proceedings against the house. The plaintiff was informed by the 1st defendant that the loan was not covered by MRTA insurance coverage. It was, inter alia, the plaintiff’s pleaded case that the 1st defendant had breached the terms of the loan agreement and/or was negligent when the 1st defendant demanded that the plaintiff pay the loan instalment payments after the deceased’s demise even though the loan was covered by MRTA. Vernon Ong J, in deciding in favour of the 1st defendant bank observed: “[22] ... the argument that there was nothing else for the deceased to in terms of his obligations under the contract is untenable. This is because having received the 2nd defendant’s [insurer’s] letter asking for the additional information, it fell upon the deceased to comply with the 2nd defendant’s request in order to ensure that the MRTA cover took effect. Due to the failure on the part of the deceased to do so, the MRTA cover did not come into effect. The burden of providing the additional information fell on the deceased, such burden is not assumed by the 1st defendant merely on account of the fact that they have disbursed the Loan. ………….. [26] ... On the evidence, it is clear that the MRTA was an option available to the deceased. He exercised the option when he completed the MRTA application form and submitted it to the 2nd defendant. As the deceased failed to respond to the 2nd defendant’s letter, no MRTA coverage was effected. Thus, the MRTA was left unfinished with attendant consequences when the deceased died. …………………. [29] In law and in fact, the MRTA proposal form constitutes an application by the deceased to the 2nd defendant (insurer) for the MRTA assurance coverage. As such, it was subject to the acceptance by the 2nd defendant. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 24 When the 2nd defendant insurer wrote to the deceased for the additional information on 23.10.1997, it was expressly stated that there would be no cover until (i) the information is furnished, (ii) the premium paid in full, and (iii) a written acceptance note is issued. [30] On the facts as disclosed in the evidence, it is clear that neither the information was furnished nor the MRTA premium paid. Further, no written acceptance was issued by the 2nd defendant. In the circumstances, there was no acceptance of the deceased’s application for the MRTA insurance cover”. (Emphasis added) Whether the letter dated 2.10.2012 is a forgery [51] This is the letter wherein the Deceased had apparently requested the Bank for the cancellation of the MRTA. The Plaintiff alleged that the signature of the Deceased on the said letter is forged; that the Defendant fabricated this letter, to justify the Defendant not obtaining the MRTA for the Deceased. [52] Cutting to the chase, in my opinion, the Plaintiff’s assertion that this letter is a forgery is a non starter as the document is a part B document; meaning its authenticity is not disputed but only its contents are - O 34 r 2(2)(e) (i) Rules of Court 2012. This is unlike part C documents where authenticity is disputed as fake, fictitious or forged as explained in Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1 by Nantha Balan JCA. In Mohd Nazari Ab Majit v. Tan Keo Hock & Anor [1999] 1 CLJ 601, Justice Augustine Paul J held that when a document is admitted with formal proof being dispensed with, the party agreeing to its admission does not thereby accept the truth of the contents. He is entitled to challenge the contents of the document by way S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 25 of cross-examination or otherwise. The cross-examination being of other witnesses and not the maker of the document. [53] But DW1, DW2 and DW4 - the bank’s officers, were not satisfactorily cross examined on its contents. The letter of 2.10.2012 asking for cancellation of the MRTA in any event does not make much sense to me as there was no MRTA in place since the borrower did not undergo the medical tests to ensure the perfection of the MRTA policy and deliver a valid Letter of Approval from Prudential or any other insurer acceptable to the Defendant (“Specified Insurer”) approving the Deceased’s application for MRTA by the specified period. Without fulfilling these conditions, and therefore with no MRTA in place, the bank pointed out tersely in its submission that the letter is irrelevant. I agree. [54] The argument that there is no evidence led as to how the purported forged letter came about is pointless as the letter is not relevant when there is no MRTA in place due to the Borrower’s own default to ensure perfection of MRTA in the first place. [55] 2 experts testified for the Plaintiff and the bank respectively on whether the Deceased’s signature is forged or genuine in regard to this letter of 2.10.2012 but not the contents of the said letter. Being a part B document, with utmost respect, I find their evidence was superfluous. The fate of the letter posited as being allegedly forged was sealed when it was placed in Part B of the common bundle of documents, and I note even at trial after evidence was lead, there was no attempt to move it back to Part C. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 26 [56] In any case, I am of the respectful opinion that forgery being a specific form of fraud, is a serious allegation which warrants a police report to be made, but it is most surprising that the Plaintiff have not lodged nor produced any police report. In my view, this omission is fatal. [57] In Soo Lip Hong v Tee Kim Huan [2005] 4 CLJ 119, [2005] 5 AMR 576, the Court of Appeal speaking through Mohd Ghazali Yusof JCA (as he then was) said: "There was also no evidence of any police report or similar things alike to suggest that PWl was attempting to cheat DWl. In the absence of such evidence, the only irresistible factual inference I could draw would be for the purpose(s) of purchasing the relevant property by PWl from DWl as agreed by both parties as evidenced by P1.'' [58] Soo Lip Hong and a legion of case law authorities established the importance of a police report to be made and produced where allegations of fraud, forgery, cheating and the like are concerned, including Chong Wan Ping v Chow Chee Yan [2009] 1 LNS 834 where the High Court held: "For an allegation of fraud in a civil proceeding, it must be shown that a contemporaneous police report must be lodged. Otherwise, the allegations are merely bare allegations. Here, no police report was lodged against the defendant.... Therefore, the claim by the plaintiff that the defendant had defrauded them must fail.” [59] In Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155, CA which dealt with a summary judgment application, the police report on an allegation of bribery was made by the defendant only in the midst of the O14 application hearing. The Court of Appeal had this to say at pg. 292 of the judgment: S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 27 “We entirely agree with the approach of the learned judge to the weight to be given to the failure of the appellant to timeously lodge a report with the police. Further, an examination of the conduct of the appellant after the commencement of the litigation, his failure to raise this matter at the earliest opportunity in his first affidavit, and producing it, as a conjurer does, like a rabbit out of a hat, leaves us in no doubt, as it did the learned judge, that the tale was an afterthought, the machinations of a desperate litigant trying every trick in the book to escape judgment being entered against him.” [60] Worse than in Wong Hon Leong David supra, in the instant case, no police report was made at all by the Plaintiff in respect of the allegedly forged letter despite dedicating much vehement submissions on this allegation. This failure must, on the facts of this case, be thrown into the balance when evaluating the evidence of other witnesses. I find it is inherently improbable that the Defendant fabricated the said letter. There is no logical reason to do so; in fact it is both unthinkable, and uncharacteristic of any reputable bank. Based on the evidence before the court, there is simply no reason to allow such ipse dixit to succeed. Other matters raised by the Plaintiff [61] The Plaintiff argued that as PW1 was not involved in the loan application, her evidence relating to the Facility and application for MRTA is hearsay and she is in no position to confirm whether or not the letters in exhibit D1 to D4 were received by the Borrower, as such there was no intimation by Prudential or the bank that the MRTA was not issued or the requirement of MRTA was dispensed with. I find this argument do not improve the Plaintiff's case. Taking the Plaintiff’s case to the highest, even if there is no such intimation by Prudential or the Bank as alleged, it does S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 28 not alter one whit the fact that the Facility would not be covered by MRTA in any event as the Deceased: 61.1 Did not obtain any approval from Prudential or any other Specified Insurer in relation to the Deceased’s Application for MRTA; and 61.2 Did not fulfil the Pre-Conditions for MRTA. [62] That is not all. This court takes cognizance that it was also made clear in the insurance enrolment form signed by the Deceased, that assurance will not begin until Prudential has given its approval and issued the policy. The Deceased is bound by what he signed. The Plaintiff’s argument thus does not resonate with this court. [63] As for the argument that the Defendant did not call any witness who had personal knowledge of the Facility and no evidence was led as to who had decided if at all that the requirement of MRTA be waived, such argument again does not add to the Plaintiff’s case for it bears repetition that under Clause I(ii) of the package terms and conditions of the Letter of Offer plainly in unequivocal language, do not admit any room for doubt that the bank is at liberty to release the housing loan facility in the sum of RM3,103,268.00 at any time upon completion of documentation regardless of whether the MRTA policy required to be taken up has been duly approved or finalised by relevant insurer or otherwise. Clause I (ii) further states notwithstanding release of the facility, the borrower shall at his own cost and expense ensure all administrative matters and requirements for purpose of ensuring the perfection of MRTA are duly performed and complied with. S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 29 [64] I note that the Plaintiff has in paragraph 6 and 12 of the SOC asserted that the Borrower had paid the MRTA premiums to the Defendant which was not returned by the Defendant. These were not put to the Defendant’s witnesses and attract the application of the principle in Browne v Dunn (1893) 6 R 67 and accepted by the Court of Appeal in Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and another appeal [1995] 2 MLJ 770 and in Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 - it must be taken that the Plaintiff has abandoned her pleaded claim. The Court of Appeal in Aik Ming (supra) applied the principle in Browne v Dunn and said: “Now, all this is contrary to two fundamental rules of procedural fairness that operate in the environment of private law. The first of these rules relate to the pleaded case while the second has to do with the cross-examination of witnesses. ... The content of the second rule may be stated thus. It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument. It is quite wrong to think that this rule is confined to the trial of criminal causes. It applies with equal force in the trial of civil causes as well.” [65] Not only that, the Plaintiff DID NOT adduce any evidence at all to prove that the Deceased was in fact charged such premiums and that he made such payment. As such, the assertion that the Deceased had paid the MRTA premiums remained a bare assertion. Plaintiff not entitled to relief [66] I have no doubt upon examination of the facts, the contemporaneous documents and weighing the body of evidence S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 30 adduced in this case and tested against the overall probabilities of the case, admit of the conclusion that it is not the obligation of the Defendant to obtain MRTA for the Facility; the Defendant cannot be held liable to the Plaintiff for there being no MRTA effected. For completeness’ sake, I should add that based on the evidence adduced, I do not find that there has been any breach by the Defendant of the Letter of Offer or the LACA as contended by the Plaintiff. The Plaintiff has not proven her case on a balance of probabilities. Whether Counterclaim should be allowed? [67] As for the Counterclaim against the Plaintiff, without the MRTA in place, neglect or non payment of the loan will amount to an event of default or breach of the loan agreement. Bearing in mind that it is undisputed that the Facility has been disbursed, the Deceased having benefitted from the Facility, the Deceased’s estate is not discharged from liability to pay the outstanding sum under the Facility. [68] In this regard, the Deceased agreed to be bound pursuant to clause 56 of the LACA, by a statement as to any amount due and owing to the Defendant which is certified by an officer of the Defendant. The Defendant has produced the Certificate of Indebtedness dated 23.12.2019 certified by Liew Pui Shin (a Head and Senior Vice President of the Defendant). [69] Following Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544, the certificate is conclusive evidence of the Borrower’s indebtedness unless the borrower is able to prove fraud or can show a manifest error on the certificate. In this case, the Plaintiff has not S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 adduced any evidence to show any manifest error in the Certificate of Indebtedness. I am therefore of the view that the liability and indebtedness of the Deceased is fixed by the Certificate of Indebtedness and as such the Plaintiff is liable to pay such amount as stated in the said Certificate to the Defendant. [70] The evidence adduced warrants a finding by this court that the Defendant has proven its Counterclaim on a balance of probability against the Plaintiff. [71] Accordingly, for reasons given, I dismissed the Plaintiff’s claim and allowed judgment for the Defendant’s Counterclaim against the Plaintiff with costs subject to allocator. Date: 14th June 2023 - sgd - ………………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Keshvinjeet Singh Messrs Gunaseelan & Associates For Defendant : Yong Juk Chee (together with her, Ong Teck Lee) Messrs Khaw & Partners CASES REFERRED: Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61 S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 32 Mohd Sari bin Datuk Okk Hj Nuar & Ors v Asia General Equipment and Supplies Sdn Bhd & Ors [2010] 5 MLJ 766 Ong Ah Bee v Hii Chung Siong, Robin [1993] 1 CLJ 504 at p 505 Cartledge v E Jopling & Sons Ltd [1963] 1 All ER 341 Reeves v. Butcher [1891] 2 QB 509 at 511 Nadefinco Ltd v Kevin Corporation Sdn Bhd [1978] 2 MLJ 59 Hilton v. Sutton Steam Laundry (1946) 1 KB 65 Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 Tan Kong Min v Malaysian National Insurance Sdn Bhd [2006] 1 MLJ 601 Setapak Heights Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 2 CLJ 337 Dato’ Sivananthan a/l Shanmugam v Artisan Fokus Sdn Bhd [2016] 3 MLJ 122 Silver Concept Sdn Bhd V Brisdale Rasa Development Sdn Bhd (Formerly Known As Ekspidisi Ria Sdn Bhd) [2005] 4 MLJ 101 Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam Melayu Pahang and other appeals [2018] 1 MLJ 1 Johandra Realty Sdn Bhd & Anor v Ketua Pengarah Jabatan Pengairan dan Saliran Malaysia & Ors [2017] 10 MLJ 1 Jayakumari a/p Jeraman v CIMB Bank Bhd & Anor [2012] MLJU 968; [2012] MLJU 968 Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1 Mohd Nazari Ab Majit v. Tan Keo Hock & Anor [1999] 1 CLJ 601 Soo Lip Hong v Tee Kim Huan [2005] 4 CLJ 119, [2005] 5 AMR 576 S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal 33 Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283; [1995] 4 CLJ 155 Browne v Dunn (1893) 6 R 67 Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors and another appeal [1995] 2 MLJ 770 Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 Cempaka Finance Bhd v Ho Lai Ying & Anor [2006] 2 MLJ 685; [2006] 3 CLJ 544 STATURE/LEGISLATION REFERRED: Section 6 of the Limitation Act 1953 Order 34 rule 2(2) of the Rules of Court 2012 S/N 4Zdqz6uQpke5KTZ2uEJEUw **Note : Serial number will be used to verify the originality of this document via eFILING portal