Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
(BAHAGIAN DAGANG)
GUAMAN SIVIL NO. D6-22-1163-2008
ANTARA
ZALWADI FARMS (M) SDN BHD
(dahulunya dikenali sebagai Innovasi Permai Sdn Bhd)
(No. Syarikat: 709759-K)
PLAINTIF
DAN
1.
2.
3.
DEFENDAN
-DEFENDAN
2.1
that the 1st Defendant and the Plaintiff had entered into a 3 rd Party
Secutiry agreement, whereby the Plaintiff would provide the 1 st
Defendant with facilities or funds up tp RM 2,000,000-00 as
security. The
2nd
and
guaranteed
the
Plaintiff alleges that MBB informed the 1 st Defendant that there was
a call on the bank guarantee which MBB had to meet and in turn
MBB had debited the Plaintiffs fixed deposit. In support of this. The
Plaintiff relied on MBBs letter dated 26.3.2007 in exhibit ZF-4 in
the Afidavit Sokongan Plaintif dated 26.5.2009;
2.4
2.5
b.
- RM 1,393,000-00;
26.02.2008
-RM
111,440-00;
Adminstrative fees
-RM
139,300-00
1.1
1.2
Defendan- Defendan which they averred that:a. The 1st Defendant through the 2nd and 3rd Defendan met with
officials of the Plaintiff for a loan of RM1,393,000-00;
b. The loan was requested because the 1 st Defedant were required
to procure a performance bond for onr of the 1 st Defendants
project. And the Bank required a deposit fund in the form of a
fixed deposit;
c. The Plaintiff agreed to provide the funds;
d. As consideration the 1st Defendant were required to pay an
interest of 10% of the loan provided by the Plaintiff;
e. The 1st Defendant was also required to pay a further 8% per
annum on monthly rests on the principal sum if there was default
by the 1st Deefndant.
f. Finally it was proposed that the 2 nd and 3rd Defendant be made
to gurantee the loan;
g. The 2nd and 3rd Defendant had no alternative but to agree to the
proposal of Plaintiff as the situation was pressing and a written
agreement in the form of exhibit ZF-1 was prepared by the
Plaintiffs solicitors to be executed by all parties;
2.
The Defendants humbly submits that the above transactions, despite the
sanitary nomenclature used in the Agreements to mask the actual intent,
are moneylending transactions that violate the Act and therefore
unenforeable. The Defendants submits that:2.1
2.2
2.3
2.4
2.5
2.6
Neither did the Plaintff show in its Afidavit Sokongan Plaintiff or the
Afidavit Sokongan Kedua Plaintf what administrative costs have it
incurred in aminstrating the said fixed deposit in MBB.
2.7
2.8
2.9
3.
The Defendants invite the Court to refer to Seascope Sdn Bhd v Syed
Izhar Syed Syed Salleh [2005] 8 CLJ 624, a case decided prior to the
cuurent Act whereby the High Court refused to lend a hand in enforcing a
sham call option share transaction against the defendant because it was
an unlicensed moneylending transaction in contravention of the old act.
4.
Given the Act currently in force, the Defendants humbly submits that the
fact that the Plaintiff is not ordinarily engaged in a moneylending business
is immaterial. The Plaintff was and is by virtue of the Act defined as a
unlicensed moneylender for having given out a loan to the Defendant for a
larger sum to be repaid.
5.
B)
1.
The Plaintiff has failed to show in the Afidavit Sokongan Pertama Plaintif
dated 26.5.2009 and the Afidavit Sokongan Kedua Plaintf 2.92009 by way
of documentary evidence how did the Plaintiff lost RM 1,393,000-00 as a
result of MBBs action other than bare averments in the supporting
affidavits.
2.
payment. MBB would also uplift a fixed deposit for settlement but the MBB
made no mention which fixed deposit was uplifted.
3.
The Plaintff did not show any notices from MBB (if there any) to the
Plaintiff that MBB would uplift the Plaintiffs account no.
no.
The
Afidavit
Sokongan
Kedua
Plaintiff
or
evidence,
summary
The Plaintff also claims for agreed liquidated damages at 8% per annum
on monthly rest of the outstanding balance totalled RM 111,440-00.
6.
The plaintf has failed to show proof or evidence of how it has suffered
damages. The provisions of section 75 of the Contracts Act cannot be
contracted out.
7.
8.
CONCLUSION
The Agreements are just a cloak to mask an unlicensed moneylending
transactions to give the same a venner of legaility.
Given the foregoing, it is hmbly submitted that the defendants have successfully
raise tirable issues against the Plaintiffs claim .
The Defendants humbly pray that the Plaintiff application under order 14 fpr
summary judgment be dismissed with costs and the defendants be allowed leve
to defend the claim.
Dated this day
,2009
__________________________
MAK JUN YEEN
Peguam Defendan Kedua
ini difailkan oleh Tetuan Tetuan J Y Mak & Co, Peguambela dan Peguamcara bagi
Defendan Kedua yang beralamat di No.63-2B, Jalan Mega Mendung, Batu5, Off Jalan
Kelang Lama, 58200 Kuala Lumpur
[ Tel & Fax : 03-7982 8096 / 019 318 0715]
(Ruj :
MJY.CASB.L-006.2005)