RHB Islamic Bank Berhad 1. Ban Hin Electrical & Construction Sdn Bhd 2. Low Ban Hin 3. Low Ban Seng

RHB Islamic Bank Berhad 1. Ban Hin Electrical & Construction Sdn Bhd 2. Low Ban Hin 3. Low Ban Seng

Plaintiff satisfied Order 14 preliminary requirements and produced an unchallenged Certificate of Indebtedness; the Joint and Several Guarantee expressly permitted the bank to pursue guarantor without first repossessing or selling the equipment; the 2nd Defendant offered only bare denials and unpleaded submissions which do not raise triable issues; therefore summary judgment was appropriate against the 2nd Defendant.

Citation
22M-270-05/2019 (Mahkamah Tinggi)
Parties
Plaintiff: RHB Islamic Bank Berhad; Defendant 1: Ban Hin Electrical & Construction Sdn Bhd; Defendant 2: Low Ban Hin; Defendant 3: Low Ban Seng
Court
High Court
Jurisdiction
Malaysia
Judgment Date
10 September 2019
Case Number
22M-270-05/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Summary Judgment Application (debt Recovery Under Islamic Financing) / Summary Judgment Application Under Order 14 Rules of Court 2012
Outcome
Summary judgment entered for plaintiff against 2nd Defendant (Low Ban Hin)
Legal Topics
Summary Judgment, Joint and Several Guarantee, Repossession and Sale, Certificate of Indebtedness, Compensation (at Ta’widh), Mitigation of Loss, Unjust Enrichment
Source Language
Malay/English
Contract Guarantee Islamic Finance Civil Procedure Debt Recovery Summary Judgment Joint and Several Guarantee Repossession and Sale +4 more

Case Brief

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Parties

RHB Islamic Bank Berhad

Plaintiff

Ban Hin Electrical & Construction Sdn Bhd

Defendant 1

Low Ban Hin

Defendant 2

Low Ban Seng

Defendant 3

Procedural Posture

Civil Summary Judgment Application (debt Recovery Under Islamic Financing) / Summary Judgment Application Under Order 14 Rules of Court 2012

Legal Issues

  1. 1 Whether the claim against guarantor is premature or an abuse of process because creditor has not repossessed and sold the charged equipment
  2. 2 Whether the guarantor is liable as principal debtor under the Joint and Several Guarantee and can be sued without prior enforcement against the hirer or sale of the equipment
  3. 3 Whether the Certificate of Indebtedness is prima facie evidence binding on the guarantor absent manifest error or fraud

Ratio Decidendi

Plaintiff satisfied Order 14 preliminary requirements and produced an unchallenged Certificate of Indebtedness; the Joint and Several Guarantee expressly permitted the bank to pursue guarantor without first repossessing or selling the equipment; the 2nd Defendant offered only bare denials and unpleaded submissions which do not raise triable issues; therefore summary judgment was appropriate against the 2nd Defendant.

Court Disposition

Summary judgment entered for plaintiff against 2nd Defendant (Low Ban Hin)

Orders

  • Summary judgment entered against the 2nd Defendant for RM 2,130,462.78 as at 29 January 2019 on the terms prayed in enclosure 11
  • Compensation (at-ta’widh) at 1% per annum from 30 January 2019 until 10 April 2022 or date of judgment whichever earlier on a non-compounded basis; thereafter at the plaintiff's prevailing IIMM rate or other method approved by Bank Negara Malaysia until full settlement, on a non-compounded basis