Carmond Sdn. Bhd. v Rawdyah @ Siti Rawdyah Bte Dato’ Hj Samsudin, 17-08-2010

• Judge: HANIPAH BINTI FARIKULLAH
• Judgment Date: 17 August 2010
• Court: High Court (Malaysia)
• Record Number: D5-22-960-2002

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(COMMERCIAL DIVISION)

SUIT NO. D5-22-960-2002

BETWEEN

CARMOND SDN BHD

(No Syarikat : 140070-X) … PLAINTIFF

AND

1. RAWDYAH @ SITI RAWDYAH BTE DATO’ HJ SAMSUDIN

1. ABDULLAH BIN ALI … DEFENDANTS

GROUNDS OF DECISION

Background Facts

1. This is the plaintiff’s claim against the first defendant as the principal debtor and the second defendant as a guarantor for the sum of RM4,171,181.00 as at 16.5.2002 and interest of RM4,699,214.00 as at 31.5.2002 being the balance purchase price of jewelleries sold to the first defendant.

2. It is the plaintiff’s case that since 1988 it sold jewelleries from time to time to the first defendant. As the first defendant became a regular customer of the plaintiff, the plaintiff had allowed part payment of the said jewelleries to be made on credit/deferred terms. The Plaintiff aver that until the month of November 1990, the first defendant had made full payments of all jewelleries that she had previously purchased. However, starting from December 1990, when she continued to make new purchases, she had failed to make full payment thereof.

3. The defendants deny owing the plaintiff the sum claim herein, being sums due and owing for jewelleries allegedly purchased by the first defendant. The first defendant states that she was not a customer of the plaintiff but instead was an agent and/or partner of the plaintiff in the business of selling jewellery. The first defendant also states that she did not receive the jewellery allegedly valued at RM4,421,181 as claimed by the plaintiff and never received any benefit in relation thereto. The first defendant takes the position that her role was limited to introducing the plaintiff to customers and sold jewelleries on behalf of the plaintiff. The first defendant states that she was forced to sign the letter of admission of debt dated 23.5.2002 under duress.

4. The second defendant denies agreeing to be a guarantor to the plaintiff and pleaded in his defence that he was not involved with the business of the first defendant.

Plaintiff Evidence

5. The plaintiff’s first witness, Ng Lay Bee (PW1), is a director of the plaintiff. PW1 testified that the first defendant frequently visited the plaintiff’s jewellery shop and purchased jewelleries at the Mall which is located next to Putra World Trade Centre. According to PW1, she would draw up invoices for those jewelleries and the first defendant would acknowledge the purchase and confirm the amount payable by signing on the invoices.

6. PW1 said in evidence that as payment for those jewelleries were not made at the time of the purchase, she had created a debtor account for the first defendant for the purpose of keeping the records of all the transactions and any payment made (Exhibit P2 pg 1 Bundle B) for the debtor’s account and Exhibit P4 (a-g) for all the invoices).

7. PW1 explained that the details amount owing by the first defendant as at 5.6.2001 are as itemized below :

Item No.	Date	Debit/ Purchase (RM)	Credit/ Payment (RM)	Balance (RM)
1.	9.12.1990 – 26.6.1991	1,108,450.00	-	1,108,450.00
2.	22.7.1991	-	100,000,.00	1,008,450.00
3.	14.8.1991 -12.9.1991	117,700.00		1,126,150.00
4.	12.9.1991		21,000.00	1,105,150.00
5.	23.9.1991		100,000.00	1,005,150.00
6.	6.12.1991		140,150.00	865,000.00
7.	10.2.1992 – 16.3.1992	1,298,000.00		2,163,000.00
8.	28.2.1992		100,000.00	2,063,000.00
9.	18.3.1992		1,000,000.00	1,063,000.00
10.	8.5.1992 – 11.7.1992	7,614,553.00		8,677,553.00
11.	11.7.1992		2,000,000.00	6,677,553.00
12.	4.9.1992		2,500,000.00	4,177,553.00
13.	11.3.1991– 18.11.1992	449,628.00		4,627,181.00
14.	8.12.1992 – 17.7.1993	1,134,000.00		5,761,181.00
15.	16.11.1993		500,000.00	5,261,181.00
16.	4.9.1998		95,000.00	5,166,181.00
17.	1.6.2000		530,000.00	4,636,181.00
18.	5.6.2001		215,000.00	4,421,181.00
				4,421,181.00

8. According to PW1, in November 1993, the defendants met with her and her husband (PW2) who is also the director of the plaintiff to discuss about the outstanding sum. In the meeting, the second defendant had agreed to guarantee the payment of the outstanding sum on condition the plaintiff give the first defendant two (2) years to settle the balance amount due.

9. PW1 said, she agreed to the second defendant’s request and then he handed over a cheques for the amount of RM500,000.00 dated 11.11.1993 (pg15 Bundle B) as part payment. The court notes that this payment was not disputed between the parties.

10. PW2 confirmed that there was a meeting between him, PW1 and the defendants whereby the second defendant agreed to guarantee the balance outstanding sum and handed a cheque of RM500,000.00 to PW1.

Defendant’s Evidence

11. The first defendant Rawdyah @ Siti Rawdyah Bte Dato’ Hj Samsudin (DW1) is a housewife. In examination in chief, she testified that she was an agent of the plaintiff and that PW1 relied on her for sale of the jewelleries to VIP and VVIP. DW1 informed the court that she was given many valuable gifts by PW1 for introducing customers to her.

12. PW1 said in examination in chief that she agreed to sign the invoices and statement of account without regard to the content thereof and without any query. During cross-examination when asked why did she acknowledged and signed the invoices and the statement of accounts this is what DW1 said :

“Masa dia sign tu suruh saya confirm acknowledge the above figure kan is true and correct. Dia selalu macam tu. Pada saya tak kisah la kan, tulis macam tu, hobi dia.

Saya ingat dia ni macam sengaja nak menganiayai saya. Saya sign sebab dia kata, dia macam hobi dia kan suruh sign, saya sign je lah tak sangka sampai ke Mahkamah.”

13. In reference to the letters of admission of the debt signed and acknowledged (Exhibit P28 and Exhibit P32), DW1 explained that she was forced to sign the admission of debt in the presence of gangsters employed by the plaintiff. In cross-examination DW1 admitted that she did not lodge any police report in respect of the duress by the gangsters employed by PW1.

14. The second defendant, Abdullah bin Ali (DW2) is the husband of the first defendant. DW2 testified that he had never made any representation to the plaintiff to guarantee the payment of jewelleries purchased by the first defendant.

15. In cross-examination, DW2 denied that he met with PW1 and PW2 to discuss on the outstanding amount due. Further he said he knew PW1 and PW2 because sometimes the two of them will come to his house to meet his wife about business.

16. PW2 also confirmed in cross-examination that he received a notice of demand dated 4.3.2002 from the plaintiff asking him to make payment as the guarantor to his wife’s debt. In cross-examination, he admitted that he did not response to the said letter as he is not involve with DW1’s business.

Issues

17. Based on the facts of this case, the issues requiring determination are :

1. Whether the first defendant owed RM4699,214.00 to the plaintiff

2. Whether the second defendant had given an oral guarantee to the plaintiff

Whether the first defendant owed RM4699,214.00 to the plaintiff

18. The plaintiff is claiming the balance purchase price of the jewelleries amounts to RM 4,421,181.00 which remain unpaid by the first defendant as at 6.6.2001. The letter of demand dated 4.3.2002 was issued to the defendants based on this figure. The calculation of RM4,421,181.00 may be summarised as follows :

Item No.	Date	Debit/ Purchase (RM)	Credit/ Payment (RM)	Balance (RM)
1.	9.12.1990 – 26.6.1991	1,108,450.00	-	1,108,450.00
2.	22.7.1991	-	100,000,.00	1,008,450.00
3.	14.8.1991 -12.9.1991	117,700.00		1,126,150.00
4.	12.9.1991		21,000.00	1,105,150.00
5.	23.9.1991		100,000.00	1,005,150.00
6.	6.12.1991		140,150.00	865,000.00

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