Philomena Mathalamuthu v.

[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 133

A PHILOMENA MATHALAMUTHU

v.

MAYGLOBE LOGISTICS (M) SDN BHD

B HIGH COURT MALAYA, KUALA LUMPUR
NALLINI PATHMANATHAN J
[CIVIL SUIT NO: 22NCC-1031-2011]
17 FEBRUARY 2012

C CONTRACT: Loan - Friendly loan - Oral agreement - Failure to repay

- Whether subsistence of loan proved - Whether borrower rebutted existence
of loan - Whether lender entitled to interest

LIMITATION: Acknowledgement of debt - Extension of limitation

period - Whether letter of acknowledgement confirmed subsistence of debt -
D
Whether limitation period extended - Whether action filed within time

The plaintiff claimed against the defendant a total sum of

RM379,213.61 being the monies lent by her to the defendant by
way of an oral friendly loan. The plaintiff was orally promised of
E repayment within two years of the date of disbursement of the
loan. The plaintiff contended that the actual amount lent to the
defendant was RM362,000 and that the figure of 379,213.61 was
stipulated by the defendant, allegedly with the interest element
added by the defendant itself. The plaintiff relied primarily on a
F confirmation letter (‘exh P2’) dated 1 July 2005 issued by the
defendant, acknowledging the debt and thereby extending the time
for the recovery of the debt by a further six years. The defendant
denied any knowledge of the loan and denied executing any
agreement in furtherance of the alleged loan. The defendant also
G contended that the plaintiff’s claim was time barred. The issues for
the court’s consideration in the instant case were, inter alia: (i)
whether or not a loan was actually given out by the plaintiff to
the defendant and if so, whether that loan was repaid; and (ii)
whether the recovery of the loan was time barred under s. 6(a)
H of the Limitation Act 1953.

Held (allowing the plaintiff’s claim with costs):

(1) There was clear evidence that monies were indeed paid out
by the plaintiff to the defendant. Exhibit P2 showed that the
I
defendant had by itself acknowledged that as of December
2004, a sum of RM379,213.61 remained due and owing to the
plaintiff. This established that the defendant did indeed receive
134 Current Law Journal [2012] 5 CLJ

the sum of RM362,000 from the plaintiff and the balance was A
interest which accrued due at the defendant’s own behest.
Further, there was no evidence from the defendant to rebut
the plaintiff's affirmative assertions of the existence of a loan
and it was evident from exh. P2 that the loan did subsist.
(paras 53-55) B

(2) Exhibit P2 amounted to an acknowledgement of the

subsistence of the debt and had the effect of extending the
period of limitation for a further six years ie, until 30 June
2011. In the instant case, the writ was filed on 20 June 2011 C
which was immediately before limitation set in. Accordingly,
the action was filed within time and the debt was indeed
recoverable. (para 57)

(3) It was evident that the plaintiff loaned the sum of RM362,000
D
to the defendant and therefore was only entitled to recover
the sum loaned. The plaintiff was not entitled to the interest
element added on by the defendant as the plaintiff was not a
moneylender. (para 60)
Legislation referred to: E
Limitation Act 1953, s. 6(a)

For the plaintiff - Joseph Iruthayam; M/s Joseph Iruthayam & Co

For the defendant - Suraeisan (ST Mani with him); M/s Vela Walter
Suraeisan & Assoc
F
Reported by S Barathi

JUDGMENT
G
Nallini Pathmanathan J:

Introduction

[1] The plaintiff, an individual by the name of Philomena a/p

H
Mathalamuthu, claims the sum of RM379,213.61 from the
defendant contending that this represents the total monies lent by
her to the defendant by way of a oral friendly loan granted to the
defendant in or around 2003. The defendant, a private limited
company, by way of defence, denies any knowledge of such a
I
loan and denies executing any agreement in furtherance of any
such alleged loan. It puts the plaintiff to proof of the existence of
 Philomena Mathalamuthu v.
[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 135

A any such loan. Further the defendant maintains that the plaintiff’s
claim is in any event time-barred, this suit having been filed in
2005. In response to this latter contention the plaintiff relies on
an acknowledgement of the debt vide a letter dated 1 July 2005.

B The Trial

[2] The trial of this matter took place over the course of half a
day, the plaintiff calling three witnesses and the defendant, one.
The plaintiff testified first, followed by one Thiruthanigesan a/l
Gopalakrishnan (‘PW2’) who was, between 1998 and 2009, the
C
Accounts Manager of the defendant and one Mohamed Shukri bin
Mohamed Zain (‘PW3’) who was a shareholder, director of the
defendant from 1994 until October 2002, and was the Managing
Director of the defendant from 1996 until 2002.
D [3] On behalf of the defendant, an ex-director, one Sesuratnam
a/l Sevathyan (‘DW1’), testified.

[4] All documents pertinent to the trial had been placed as

bundles enumerated as follows:
E
[5] The first bundle comprising Part A documents, meaning that
the contents were admitted, was marked as CBD1; Three other
bundles comprising Part B documents, meaning that the maker had
been dispensed with but the contents remained in dispute, were
marked as CBD2, CBD3 and CBD4 while the final bundle
F
comprising Part C documents meaning that the documents were
entirely disputed in terms of maker and contents, was marked
NAB. Accordingly documents in the final bundle marked NAB
comprising Part C documents, when referred to, were immediately
adjudicated upon in terms of admissibility.
G
The Background Facts

The Plaintiff’s Evidence

[6] The plaintiff, Philomena a/p Mathalamuthu, (‘plaintiff’)

H
testified that sometime in the year 2002, she was approached by
her husband, one Loorthusamy, who was then both a shareholder
and director of the defendant for a loan. On behalf of the
defendant, he sought a loan from her to assist in resolving some
of the defendant’s outstanding financial commitments. Loans, she
I
explained, were, to her knowledge also solicited from some of her
siblings and family members to assist the defendant.
136 Current Law Journal [2012] 5 CLJ

[7] The plaintiff agreed to loan the defendant monies from her A
savings. She maintained that she was promised orally that the
monies would be repaid within two years of the date of
disbursement of the loan. In support of her contention that she
loaned monies to the defendant, the plaintiff relied on a copy of
the general ledger of the defendant dated between 1 November B
2001 and 31 December 2002. Learned counsel for the defendant
objected to the admission of this document contending that the
plaintiff had not explained how she had procured a copy of this
ledger and as the name at the top of the ledger was ‘Mayglobe
Freight (M) Sdn. Bhd.’ rather than ‘Mayglobe Logistics (M) Sdn. C
Bhd.’, the current name of the defendant.

[8] Learned counsel for the plaintiff responded by pointing out

through a company search that ‘Mayglobe Freight (M) Sdn. Bhd.’
was the former name of the defendant. Additionally, the plaintiff D
testified that she had obtained a copy of the ledger from her
husband, Loorthusamy who had been, previously, both a
shareholder and director of the defendant. In these circumstances,
I was satisfied both as to the origins and the authenticity of the
document and allowed the copy of the ledger to be adduced in E
evidence, ruling that it was to be marked as exh. ‘P1’ and that I
would decide on the probative value to be attached to the
document after hearing the entirety of the evidence adduced at
trial on this document.
F
[9] P1 evidenced the fact that in or around February 2002, the
plaintiff had lent the defendant a sum of RM100,000 of which
RM30,000 was repaid and subsequently a further RM60,000 was
lent to the company again in or around May 2002, bringing the
total to RM130,000 at that stage.
G
[10] The balance of the loan of RM232,000 was, according to
the plaintiff granted to the defendant by way of a withdrawal of
her savings from her fixed deposit accounts with both Malayan
Banking Berhad and RHB Bank. She maintained that this latter
sum was transferred by way of bank draft from her account to H
that of the defendant’s. She claimed to have made available those
drafts to the defendant through her husband, then a director of
the defendant.

[11] The plaintiff further explained that the sum of RM130,000 I

was from her own savings while the sum of RM232,000 were
monies given to her by her father as a gift after the sale of his
 Philomena Mathalamuthu v.
[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 137

A land. This totalled RM362,000. However the plaintiff’s claim here

is for RM379,213.61 which she explained was a figure stipulated
by the defendant itself. The difference between the monies she
lent and the monies now claimed, she assumed, was the interest
element which the defendant itself had added.
B
[12] The plaintiff maintained that no written agreement was
executed for the loan granted to the defendant, as it was an oral
agreement based, as she put it, on ‘mutual trust’. She advised that
she understood that the loan would be repaid within two years
C from the date of disbursement.

[13] The plaintiff relied primarily on a confirmation request issued

by the defendant to her dated 1 July 2005 as acknowledgement
of the debt, thereby extending the time for the recovery of the
debt by a further six years from that date, until July 2011. The
D
writ here was filed on 20 June 2011.

[14] With regards to the letter dated 1 July 2005, learned counsel
for the defendant again objected to its admission in evidence,
notwithstanding that it was clearly a letter emanating from the
E defendant itself. The basis for the objection was that the
defendant wanted the maker to be present. It subsequently
transpired that the maker of the document was the sole witness
called by the defendant. As the document emanated from the
defendant itself and comprised a confirmation request, I allowed
F the document to be admitted in evidence and marked exh. ‘P2’.

[15] The document bears the letterhead of the defendant, is

dated 1 July 2005 and is entitled Confirmation Request –
Mayglobe Logistics (M) Sdn. Bhd. It seeks confirmation that in
G keeping with its records, the defendant owes the plaintiff the sum
of RM379,213.61 as at 31 December 2004. The letter, exh. P2
is addressed to ‘Philomena’ and bears both a company stamp and
what is stated to be an authorised signature.

[16] The plaintiff testified that she received this letter and
H
promptly signed it on the date stated therein and returned it to
the defendant (rather than the auditors, as instructed). She
retained a copy which comprises the basis for the plaintiff’s claim
that in view of this acknowledgement the limitation period for the
repayment of the debt is extended for a further six years from 1
I
July 2005.
138 Current Law Journal [2012] 5 CLJ

[17] The plaintiff also made reference in the course of her A

examination in chief to a statutory declaration affirmed on 8
November 2011 where she sets out her version of events
pertaining to a meeting with one Selvakumara in respect of, inter
alia, the current debt. She testified that at the meeting, she and
her siblings who were present to ascertain the status of their B
debts with the defendant, were advised that the defendant was
suffering from financial constraints and that once this situation had
improved, the loan would be settled. A letter from the defendant
undertaking such repayment was also promised but did not
materialise, according to the plaintiff. C

[18] In the course of cross-examination, the plaintiff was

challenged on the subsistence of a friendly loan agreement. She
replied that there was no written agreement but that it was an
oral agreement. She was then asked about her evidence to the D
effect that vis a vis the first RM130,000, she had withdrawn these
monies from her savings account. She was asked to produce
withdrawal slips to that effect. No prior notice had been accorded
to the plaintiff for the production of these documents prior to the
date of trial. Notwithstanding this, the plaintiff had brought with E
her one of her savings account books, namely her Maybank
savings account book which she readily produced. However she
was unable to stipulate with any degree of certainty which entries
captured the loan amounts, as a perusal of the savings book,
marked as ‘P5’ showed numerous withdrawals of small amounts of F
monies. The plaintiff however maintained that while some of these
monies had come from her Maybank savings account the rest had
been from her RHB Bank account which she had not brought to
court.
G
[19] She further explained that monies were transferred directly
from her account to that of the defendant by way of bank drafts,
in two tranches. She also explained that the loan had been sought
on behalf of the defendant by her husband, then the operations
director, one Sesuratnam, her brother and another director Mohd.
H
Shukri. She maintained that she had spoken to all of them.
However there was no formal letter requesting for a loan. The
entire transaction had been conducted orally. No security was
afforded for the loan either.
I
 Philomena Mathalamuthu v.
[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 139

A [20] She was asked what steps she had taken to collect this loan
which had been given initially as early as 2003. She stated that
she had asked for a return of the loan through her husband,
Mr. Loorthusamy, who was then a director of the defendant.

B [21] She was then asked why her claim was for RM379,213.61
and how she had derived this figure. Again she explained that the
figure had in fact been forwarded by the defendant itself and that
the defendant had added on interest. She conceded that she had
no money lending licence.
C
[22] She was queried as to how she had procured the general
ledger, exh. P1 and explained that her husband had obtained a
copy for her use. She maintained that it merely disclosed the initial
monies she had loaned to the defendant in 2002. Similarly with
exh. P2, the acknowledgement letter dated 1 July 2005, she
D
confirmed that her husband had brought it home for her signature.
Her husband resigned as a director in October 2010.

[23] She was next cross-examined on the meeting she said had
been held at the defendant’s offices and comprising the subject
E matter of her statutory declaration. The plaintiff maintained her
stance on the same. She was then questioned on the letter signed
by her husband and Sesuratnam whereby they agreed to
indemnify the defendant for any losses suffered by the company
in relation to loans accorded to the defendant from relatives. The
F letter is dated 31 December 2007. The plaintiff cried when this
letter was referred to, stating that her husband had not told her
about this letter at the material time and that she only came to
know of it recently in the course of this litigation.

G [24] I found the plaintiff to be essentially a witness of truth. Her

evidence was straightforward and clear. Her testimony remained
consistent throughout.

The Evidence In Support Of The Plaintiff’s Case

H [25] The next witness for the plaintiff, Thiruthanigesan a/l
Gopalakrishnan, PW2 was at all material times, between October
1998 and July 2009, the accounts manager of the defendant. He
explained that he was in charge of the overall accounts of the
defendant during this time.
I
140 Current Law Journal [2012] 5 CLJ

[26] He essentially corroborated the plaintiff’s version of events A

testifying that the defendant had requested for additional funds to
meet its financial obligations and to improve on its haulage
business. He claimed that the then Board of Directors at a
meeting unanimously agreed to obtain loans from Loorthusamy’s
family members. He stated that he was aware of the loans B
granted to the defendant by the plaintiff. He confirmed that the
total amount loaned by the plaintiff was RM362,000 and that the
rest was interest accorded by the defendant to her. He referred
to the general ledger to state that initially a sum of RM130,000
was loaned by her and that subsequently by way of bank draft, a C
further sum of RM232,000 was made available. He testified that
the general ledger had been prepared by him and that he was the
one who had recorded it as a loan. PW2 confirmed that there was
no written agreement but that the entire arrangement had been
conducted orally. He further confirmed that the loan had never D
been repaid.

[27] With respect to exh. P2, the confirmation letter of 1 July

2005, acknowledging the debt due to the plaintiff and seeking
confirmation of the same, he asserted that the letter had been E
prepared by him on the instructions of the defendant’s auditors.
After the plaintiff had executed the same and returned it to the
company, he maintained that it was passed to the auditors for
their records as amounting to an audit confirmation. He was asked
where the original was and maintained that it was with the F
auditors.

[28] PW2 was then asked who had signed exh. P2 on behalf of
the defendant. He affirmed that Sesuratnam, one of the then
directors had signed the letter. He also confirmed that it was
G
normal practice for the auditors to seek confirmation on a random
basis from varied trade creditors annually.

[29] In the course of cross-examination, PW2 was asked about

his employment with the defendant and the scope of his duties.
He confirmed that the overall accounts came within the purview H
of his duties.

[30] He maintained that he was aware of the loans as in 2002

the defendant had sought to venture into the haulage business
and required additional funds. Accordingly a decision had been I
 Philomena Mathalamuthu v.
[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 141

A taken to ask Mr. Loorthusamy and family for a loan to start the
new business. At that time, Loorthusamy and Sesuratnam were
both on the board of directors.

[31] He was queried about the general ledger and asked whether
B there was further proof of the loan. He replied that if the
defendant’s accounts were examined then he would be able to
ascertain this. He was asked if he prepared a receipt for the loan
given by the plaintiff. He stated that no receipt was issued.

[32] PW2 was then queried on the confirmation letter, exh. P2

C
and asked why, if it was issued for the year 2005 it was not
issued regularly or annually thereafter. PW2 explained that each
year, the auditors would randomly pick out some creditors and
require him to procure confirmation which he duly did.
D [33] He was asked why the letter of 1 July 2005 only bore the
plaintiff’s first name. He replied that they knew her by that name,
and that the auditors set out the figure of RM379,213.61. He
insisted that he merely followed the precise listing given by the
auditors. PW2 stated that he passed it to the plaintiff to get her
E to sign it.

[34] PW2 was then referred to two warning letters issued midway
through his tenure with the defendant. It was then put to him
that by reason of the same, he was not telling the truth vis a vis
F the confirmation letter, exh. P2. PW2 insisted that exh. P2 was
correct.

[35] He was then queried on the basis on which he had keyed

in the sums into the general ledger. PW2 maintained that he had
done so on the basis of bank-in slips which amounted to evidence
G
of the loan. He explained that at the time, in view of his position,
all monies to the defendant went through him. He maintained that
he was not in possession of any ledgers whatsoever. He was
asked who he reported to and he advised that it was Mr.
Sesuratnam the Finance Director.
H
[36] I found PW2 to be consistent in the course of his
testimony. His evidence was direct and clear. He had no personal
interest in the matter at hand. His evidence clearly corroborated
that of the plaintiff.
I
142 Current Law Journal [2012] 5 CLJ

[37] The next witness for the plaintiff, one Mohamed Shukri bin A
Mohamed Zain, PW3 was both a director and shareholder of the
defendant from 1994 until 2007. He confirmed the subsistence of
the loan from the plaintiff to the defendant, explaining that at the
time the defendant needed funds to finance its entry into the
haulage business. It was unanimously agreed by the directors that B
loans were to be procured from Loorthusamy’s and Sesuratnam’s
family members. He confirmed that this was agreed upon at a
meeting of the defendant’s directors then comprising himself,
Loorthusamy, Sesuratnam, one Tengku Shahliza and one Mohd
Aliq. C

[38] PW3 confirmed that the total amount of the loan afforded
by the plaintiff was RM362,000 while the rest of the claim
comprised interest given by the defendant. He confirmed that an
initial sum of RM130,000 was made available followed by bank D
draft/s for the balance RM232,000 in two tranches. He further
confirmed that there was no written agreement. It was an oral
agreement based on mutual trust, as the plaintiff was Loorthusamy’s
wife. PW3 also confirmed that as of 2007, when he resigned, the
loan had still not been repaid. E

[39] He was shown exh. P2 and confirmed that the signature on

the document belonged to the then Finance Director, Sesuratnam.

[40] In the course of cross-examination, it was put to him that

the quantum claimed by the plaintiff was in excess of the sum F
loaned. He accepted that there was a difference which was
attributable to interest. He was asked whether any resolution was
passed by the five directors to procure the loan from the plaintiff.
He stated that no such resolution was passed. He denied that this
was odd because the board of directors then were also the G
shareholders and therefore controlled the entire company.
Moreover they were requesting these loans from family members
and not financial institutions. Hence he maintained that given the
circumstances, it was not unusual.
H
[41] PW3 was then shown loans made by other family members
of the directors which had been documented and he was asked
why the same was not done for the plaintiff. He replied that if the
lender required it they would have done so.
I
[42] PW3, like PW2 and the plaintiff tendered his evidence in a
straightforward manner with no hesitation. I found his evidence to
be consistent.
 Philomena Mathalamuthu v.
[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 143

A [43] The plaintiff then closed its case and the defence called its
sole witness.

The Case For The Defence

[44] The sole witness for the defence was a previous director of
B
the defendant, Sesuratnam a/l Sevathyan, DW1. He was
appointed a director of the defendant on 10 August 1994 and
resigned sometime in 2007. In his examination-in-chief he traced
his shareholding in the defendant from appointment to resignation,
although the relevance of doing so is not entirely clear.
C
[45] DW1 also referred to the letter of undertaking signed by
himself and Mr. Loorthusamy issued to the defendant dated
31 December 2007. He confirmed the contents of the letter and
advised that he had received the list of dividend payments set out
D since 2004.

[46] DW1 then referred to the consolidated balance sheet for the
year ending 2003 and confirmed that nowhere in the report is it
stated that the plaintiff is owed monies by the defendant.
E
[47] He was next referred to exh. P2 and somewhat hesitantly
confirmed that the signature on the document was his. He stated
that he signed many documents in his capacity as Finance Director
and stated that the signature looked like his. His hesitation in
responding to this question was palpable.
F
[48] He next testified that PW2 was the accounts manager and
was instructed by Mr. Loorthusamy on the monitoring of the
defendant’s bank accounts etc.

G [49] In the course of cross-examination, DW1 was asked about

his signature on various documents exhibited at trial. He readily
acquiesced to the fact that all the documents referred to bore his
signature. He was then referred to exh. P2 and asked who
‘Philomena’ was. He stated that she was Mr. Loorthusamy’s wife.
H He confirmed that he was aware that she was the plaintiff and
that her claim was premised for the recovery of monies loaned to
the defendant. He also accepted that exh. P2 was a document
confirming the amount due to the plaintiff. When asked whose
signature appeared immediately below the defendant company’s
I name stamp, he stated that it was a photostat copy of what
appeared to be his signature. When asked whether he disputed
144 Current Law Journal [2012] 5 CLJ

the fact that it was his signature, he confirmed that this was not A
in dispute. In short DW1 accepted that his signature appeared on
exh. P2.

[50] With that the defence stated that it was calling no further
witnesses as the defendant would rely on its audited accounts B
between 2003 to date to establish its stance that there was no
debt due and owing by the defendant to the plaintiff.

[51] The defence then closed its case.

Issues C

[52] The issues that arise for consideration in this case are as
follows:

(i) Whether or not a loan was actually given out by the plaintiff
D
to the defendant and if so, whether that loan was repaid;

(ii) Whether the recovery of the loan is time barred under s. 6(a)
of the Limitation Act 1953

Issue (i): Whether Or Not A Loan Was Actually Given Out E

By The Plaintiff To The Defendant And If So, Whether That
Loan Was Repaid

[53] Having reviewed the evidence it is clear that monies were

indeed paid out by the plaintiff to the defendant. This is borne
F
out by the evidence of the plaintiff, PW2, PW3 and even the
defendant’s witness, DW1. The documentary evidence to support
this is to be found in exh. P1, the excerpt from the general ledger
of the defendant evidencing the receipt of a part of the loan
monies in the sum of RM130,000 which is described as a loan
G
from the plaintiff.

[54] Although there is no such similar documentary entry for the

balance of the loan monies, it is evident from exh. P2 that the
defendant itself acknowledged on 1 July 2005 that as of December
2004 a sum of RM379,213.61 remained due and owing to the H
plaintiff. This establishes that the defendant did indeed receive the
sum of RM362,000 from the plaintiff. As all the plaintiff’s
witnesses testified, which evidence I have no reason not to
accept, the balance was interest which accrued due at the
defendant’s own behest. I
 Philomena Mathalamuthu v.
[2012] 5 CLJ Mayglobe Logistics (M) Sdn Bhd 145

A [55] The defendant’s evidence while putting the plaintiff to proof,

does not in any way negate the evidence adduced by the plaintiff.
Save from the absence of a specific reference to the loan monies
afforded by the plaintiff in the consolidated accounts, the
defendant points to nothing else nor produces any evidence to
B rebut the plaintiff’s affirmative assertions of the existence of a loan.
In any event, these consolidated accounts carry a general entry
relating to all current liabilities in total, and there is nothing to
suggest that the plaintiff’s debt does not comprise a part of this
total quantum of ‘current liabilities’. Given the existence of
C exh. P2, the acknowledgement of the debt owed to the plaintiff
for auditing purposes, it is evident that such a loan does in fact
subsist. The fact that the said exhibit was signed by the
defendant’s sole witness who testified that he did in fact sign the
letter puts this matter beyond issue.
D
[56] The evidence of the plaintiff’s three witnesses bears out the
fact that such loan remains unpaid. There is again no evidence to
rebut or negate this evidence.

Issue (ii): Whether The Recovery Of The Loan Is Time

E
Barred Under s. 6(a) Of The Limitation Act 1953

[57] The sole proposition available to the defendant in defence of

this claim, namely that its recovery is time barred is defeated by
the subsistence of exh. P2 which amounts to an acknowledgement
F of the subsistence of the debt and which has the effect of
extending the period of limitation for a further six years from that
date. Such an addition of six years allows the plaintiff to file an
action until 30 June 2011. The writ in the instant case was filed
on 20 June 2011, immediately before limitation set in. Accordingly
G the action is filed within time and the debt is indeed recoverable.

[58] In this context it must be said that the authenticity of exh.

P2 cannot be in doubt in view of the evidence of DW1 himself
who confirmed signing it on behalf of the defendant, the evidence
H of the plaintiff who was the other signatory as well as the
evidence of PW2 who confirmed the preparation of the letter on
instructions from the defendant’s auditors.

[59] Finally the defendant seeks to rely on a letter of undertaking

signed by Mr. Loorthusamy and DW1 undertaking to repay any
I
liabilities arising from loans afforded by their family members (see
exh. P3). This however has no bearing on the claim for the
recovery of the loan vis a vis the plaintiff and the defendant.
146 Current Law Journal [2012] 5 CLJ

[60] The preponderance of evidence bears out the fact that the A
plaintiff did indeed loan monies in the sum of RM362,000
commencing in 2002 to the defendant, which sum has not been
repaid. The plaintiff is therefore entitled to recover the sum loaned.
I am not however persuaded that the plaintiff is entitled to the
interest element added on by the defendant as the plaintiff is not B
a moneylender. Accordingly the plaintiff is granted judgment
against the defendant in the sum of RM362,000 together with
interest at the rate of 4% per annum from the date of judgment
until the date of full settlement.
C
[61] The plaintiff is entitled to the costs of this action which I
fix at RM45,000.