IN THE MAGISTRATE COURT OF KUANTAN IN THE

IN THE MAGISTRATE COURT OF KUANTAN
IN THE STATE OF PAHANG DARUL MAKMUR
CIVIL SUIT NO 72-1506-2005
BETWEEN
…PLAINTIFF
BANK SIMPANAN NASIONAL
AND
1. BUSTAMAM BIN DAUD
(NRIC 550921-06-5113/4859183)
2. SIM FOO KIM
(NRIC 670815-04-5211/ A 1046852)
…DEFENDANTS
GROUNDS OF JUDGMENT
Action against 2nd Defendant
Introduction
[1]
In this case, Bank Simpanan Nasional, the Plaintiff, filed action against
Bustamam Bin Daud, (the 1st Defendant), the hirer, for payment of
RM24,211.50, allegedly due and owing to the Plaintiff pursuant to a Hire and
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Purchase Agreement of a Fiat Punto Selecta SP1 with registration no. CAY
9131. The claim against Sim Foo Kim (2nd Defendant) is made on his capacity
as guarantor to the said agreement.
[2]
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Judgment in Default of Appearance was entered against both
Defendants on 15.7.2005. Later, on 20.10.2008, the Plaintiff filed Ex-parte
Notice of Application to amend the amount of the Judgment In Default from
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RM24,411.50 to RM27,233.40 and the interest therein from 4% to 8%. It was
duly allowed on 19.1.2009.
[3]
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On 24.1.2014, the 2nd Defendant applied to this Court to set aside
judgment in Default entered against him. On 25.4.2014, the Court allowed
2nd Defendant application and the case is set for trial.
[4]
On 17.9.2014, 2nd Defendant called his last witness and closed his
case. As this is an old case, I had invited learned counsel to submit orally
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and they had kindly agreed. Thereafter, I dismiss Plaintiff’s claim with
cost of RM5000. Now I state my reasons.
Plaintiff’s case
[5]
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Plaintiff called two witnesses. SP1, Zamri Bin Salleh, was in charge in
execution of the Hire and Purchase Agreement (“impugned agreement). He
testified that the hirer (1st Defendant), the guarantor (2nd Defendant), one
Ridzuan Abdullah and he himself were present when the Hire and Purchase
Agreement (P2) dated 29.9.1999 was executed. The event took place at the
premise of Asas Inovasi (M) Sdn Bhd, Jalan Dato’ Lim Hoe Lek, Kuantan,
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Pahang. Ridzuan Abdullah acted as witness to the hirer and guarantor
whereas SP1 was the witness for the owner (Pengurus Negeri BSN).
[6]
In his evidence, SP1 informed the Court that a blank Hire and Purchase
Agreement was signed by the parties before it was filled in later at the Bank.
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He informed the Court that the guarantor addressed at Syarikat DYD Maju
Enterprise, A11 Tingkat 1, Jalan IM2/3, Taman Kota Ria, Indera Mahkota
2
25200, Kuantan, Pahang. This information is contained in ID4, a fax copy of
an Identification card with scribbles of non-legible handwriting purported to
be address of the guarantor i.e. the 2nd defendant. A Statement of Income
allegedly belonged to the 2nd Defendant (ID5) was also produced before the
5
Court. SP1 is unsure whether the original copy of the Statement of Income
was sent/produced to the Bank, nonetheless it was never produced before
the Court.
[7]
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SP2, Nor Pilawati Binti Baharuddin is Head of Debt Management &
Recovery Services, BSN, Kuantan Branch. In her evidence, SP2 testified
that a judgment was obtained against 1st and 2nd Defendant and a
Bankruptcy Proceeding was initiated at Shah Alam High Court against the
Defendants. Receiving Order and Adjudicating Order was entered against
the 1st Defendant. She learnt that the 2nd Defendant had applied to set aside
15
the Bankruptcy Notice. She also informs the Court that the vehicle in issue
was found in possession of the hirer and was accordingly auctioned.
[8]
In her evidence, SP2 informed the Court that Notice Of Intention To
Re-Possess as per Schedule 4 of Hire-Purchase Act 1967 was sent to 2nd
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Defendant’s address at A11 Tingkat 1, Jalan IM2/3, Taman Kota Ria, Indera
Mahkota 25200, Kuantan, Pahang, whereas the Bankruptcy Notice was sent
to No 12-2F Jalan Hulubalang 10, Taman Sentosa, Klang, Selangor.
2nd Defendant’s case
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[9]
2nd Defendant called 3 witnesses. SD1 is the 2nd Defendant himself.
He testified that in October 2013, he received a letter from BSN. Since he is
3
illiterate, he asked his employer, one Puan Goh Shw Hui to read it to him.
He was surprise to know that there was an action against him as a guarantor
in Kuantan Court. He made a Police Report (D8). He informed the Court that
he had changed his Identification Card (IC) four times, twice in 1990s and
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once in 2005 for losing his IC, once as he changed his address and once as
the chip on the card is unreadable.
[10] He denied being a guarantor to the 1st Defendant. He told the Court he
never resides in Kuantan and he had no idea about Syarikat DYD Maju
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Enterprise, addressed at Taman Kota Ria, Kuantan which Plaintiff claimed
to be his employer.
[11] SD1 said he never knew Bustamam Bin Daud, the 1st Defendant. He
also denied the signature appeared in Hire and Purchase Agreement (P3) to
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be his signature. Payment Vouchers (D11), Sale and Purchase Agreement
(D12) and Registration of Marriage (D13) were produced for comparison.
Plaintiff objected admission of D13 as it was not supplied to them before the
trial started.
20
[12] SD2 is wife to the 2nd Defendant. Her evidence in gist affirmed the fact
that the 2nd Defendant had never been to Kuantan since they were married
in 1997. She confirmed the fact that 2nd Defendant is illiterate, incapable of
driving by his own and signatures appeared in D11, D12 and D13 belong to
2nd Defendant.
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4
[13] SD3 is employer of the 2nd Defendant. He employed 2nd Defendant in
2002. Prior to that, 2nd Defendant was selling tauhu sumbat at SD3’s premise
since 1998. In 2002, SD1 then stopped his tauhu sumbat business and
requested to work for SD3 and SD1 was accordingly employed. She affirmed
5
the fact that 2nd Defendant is illiterate, as he was unable to read employment
letter when SD3 gave it to him. She confirmed that 2nd Defendant had signed
payment vouchers (D11) as she was the one issuing it. I must note here that
SD3 is a Chinese, yet so fluent conversing in Bahasa Melayu.
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Plaintiff’s submission
[14] Learned counsel for the Plaintiff pointed out the issue in this case is
signature of 2nd Defendant found in Hire and Purchase Agreement (P3). She
submitted SP1 had testified all parties were present when the agreement
was signed. It is not within the knowledge of SP1 whether 2nd Defendant had
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changed his signature or not.
2nd Defendant’s submission
[15] Counsel for the 2nd Defendant submitted that SP1 in his evidence said
a blank Hire and Purchase agreement was signed by the parties before it
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was filled up later. This contravenes Section 4B (2) of Hire and Purchase Act
1967 and it shall render the agreement void as provided by section 4B (3) of
the same act.
5
[16] Alternatively, 2nd Defendant submitted the Plaintiff failed to prove that
the Hire and Purchase agreement and the 4th schedule were duly sent to the
2nd Defendant before it could be enforced against 2nd Defendant.
5
[17] It is also submitted that the Plaintiff had failed to prove that the
signature found in the Hire and Purchase agreement belonged to the 2nd
Defendant. Plaintiff also failed to bring Ridzuan Abdullah, a witness to the
agreement who was also the salesperson, to testify in Court. She concluded
discrepancy between the signature found in P3 and D11, D12 and D13 lead
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to a conclusion that the 2nd Defendant had never signed the Hire and
Purchase agreement as claimed by the Plaintiff.
DECISION OF THE COURT
[18] Dismissal of Plaintiff’s claim hinges upon determination of two issues;
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1st Issue – Whether 2nd Defendant is a party to Hire and Purchase Agreement
(impugned agreement).
[18] SP1 testified that 2nd Defendant was present when the document was
20
signed. The other person who was present when the agreement was signed
is on Ridzuan Bin Abdullah, who had not testified as subpoena was not
successfully served unto him.
[19] 2nd Defendant on the other hand denied being a party to the
25
agreement. 2nd Defendant said he had never been to Kuantan, he is unable
to read nor write, he never worked with Syarikat DYD Maju Enterprise of
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Taman Kota Ria Kuantan and the most important – the signature found in
the impugned agreement is not his signature. SD2 confirmed contentions of
the 2nd Defendant whereas SD3 confirmed the fact that 2nd Defendant is an
illiterate.
5
[20] As to the signature found in the impugned agreement, I direct my mind
to the words of Gopal Sri Ram, JCA in Siaw Kim Seong v. Siew Swee Yin
& Anor [2008] 5 CLJ 441, where His Lordship in regards of ascertaining
forged signature, observed;
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Had the judge undertaken such an examination he would have
concluded, even without the aid of an expert, that the signatures
appearing on the assignment and the transfer were plain and
undisguised forgeries.
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[21] Through naked eye, I compare between signatures found in
documents produced before me. It is my finding that signature in the
impugned agreement is not even close to 2nd Defendant’s signatures found
in Payment Vouchers (D11), Sale and Purchase Agreement (D12) and
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Registration of Marriage (D13).
[22] It is also significant to note that the Registration of Marriage (D11) is
dated 20th September 1997, two years BEFORE the impugned agreement
was sealed. The signature found therein is consistent with those found in
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Payment Vouchers (D11) and 2011 and Sale and Purchase Agreement
(D12) which were prepared and executed AFTER the impugned agreement
7
being sealed. For these huge differences I see, I am not hesitate to hold that
the signature in P3 had been poorly forged.
[23] I also bear in mind the objection made by the Plaintiff in admitting
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Registration of Marriage (D11) as evidence, for the reason that it was not
supplied to the Plaintiff before commencement of the trial. I made reference
to section 73 of Evidence Act 1950 which reads;
S. 73. Comparison of signature, writing or seal with others admitted or
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proved.
(1)
In order to ascertain whether a signature, writing or seal is that of the person
by whom it purports to have been written or made, any signature, writing or seal,
admitted or proved to the satisfaction of the court to have been written or made by
that person, may be compared by a witness or by the court with the one which is
15
to be proved, although that signature, writing or seal has not been produced or
proved for any other purpose.
[23] Section 73 empowers the Court to admit evidence for the purpose of
comparing signatures and I have done so in this case.
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[24] Taking into consideration 2nd Defendant’s case in totality, I am satisfied
that 2nd Defendant had not signed the impugned agreement and never
agreed to be bound by the agreement. As such the Plaintiff’s claim must fail.
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2nd issue – Contravention of Sec 4B (2) of Hire and Purchase Act 1967
[25] Another reason why Plaintiff’s claim must fail is because the impugned
agreement was executed not in accordance with section 4B of Hire and
5
Purchase Act 1967, which provides;
(2)
No owner, dealer, agent or person acting on behalf of the owner shall
require or cause any intending hirer or his agent to sign a hire-purchase agreement
or any other form or document relating to a hire-purchase agreement unless such
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hire-purchase agreement, form or document has been duly completed.
(3)
A hire-purchase agreement that contravenes with subsections (1), (2) and
(2A) shall be void.
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[26] SP1, when he was re-examined by the learned counsel for the Plaintiff,
he stated;
Soalan
–
Dokumen-dokumen tersebut di bawa ke tempat dealer, sebelum
diisi atau ditandatangan?
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Jawapan –
Ditandatangan dahulu baru maklumat diisi.
[27] Plaintiff’s own witness, in answering question from counsel for the
Plaintiff, told the Court that a blank document was signed by the parties and
it was filled up later. This is clearly in breach of section 4B (2) of Hire and
25
Purchase Act 1967 and being so, section 4B (3) unequivocally provides such
agreement to be void.
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[28] For these reasons, plaintiff’s claim is dismissed with cost of RM5000.
Dated 20th October 2014
t.t
MUHAMMAD NOOR FIRDAUS BIN ROSLI
Senior Assistant Registrar
Subordinate Court of Malaya
Kuantan, Pahang
(sitting as Magistrate,
Magistrate Court of Kuantan)
Counsel for Plaintiff
PUAN HASNITA BINTI CHE ISA
Messr. Mazlan Noor Zalizan & Partners
49A, 1st & 2nd Floor (Malay Town)
Jalan Putra Square 2
Kuantan
Pahang Darul Makmur
Counsel for Defendants
PUAN AMALIA BT MOHAMAD SAID
Messr. Wong Law & Ti
A-23, 1st ,2nd, 3rd Floor
Lorong Seri Kuantan 2
Kuantan
Pahang Darul Makmur
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