PUTRAJAYA: The Court of Appeal today held that the High Court was correct to rule that tycoon Halim Saad did not return RM2.5 million, the balance of a friendly loan, to a businessman.
Halim’s appeal came about after the High Court refused to set aside a summary judgment made against him in July last year.
“We are of the view that the appellant (Halim) failed to demonstrate that the judicial commissioner (Rohani Ismail) made any error of principle when making her decision to dismiss the setting aside application,” judge S Nantha Balan said in a written judgment delivered today.
Chan Yok Peng had lent Halim RM3 million in 2014, but was repaid only RM500,000 the following year through a cheque issued under Cekal Teguh Sdn Bhd, a company owned by Halim.
In October 2018, Chan sent a “friendly letter” asking Halim to settle the outstanding amount and a letter of demand in December, failing which, he had said, legal proceedings would begin.
Chan filed legal proceedings in March last year and two months later applied for a summary judgment, which was allowed on July 12.
Halim did not appeal against that ruling but a day before the summary judgment, he filed an application to amend his defence to state that the loan was between two companies – Tekad Mulia Sdn Bhd and Cekal Teguh Sdn Bhd- and that he was not the borrower.
Halim then applied to set aside the judgment on grounds of nullity and that Chan had no legal standing to recover the money, but his application was dismissed in December last year.
Nantha said Halim’s assertion that he had settled the full loan was an “afterthought” and that he had not come to court with “clean hands”.
Nantha, who sat with Kamardin Hashim and Che Mohd Ruzima Ghazali, said Halim should have filed an appeal against the summary judgment.
“And if the so-called fresh information or documents were discovered belatedly, and if they are credible, critical, relevant and persuasive to the issue at hand, then the defendant (Halim) could have applied to the Court of Appeal and adduced them as ‘fresh evidence’ in the very appeal itself,” he said.
The judge said what was more perplexing was Halim’s averment that the loan was between Tekad Mulia and Cekal Teguh in his affidavit in support of setting aside the summary judgment.
The judge noted that Halim, in his defence on March 12 last year, had taken the position that he had indeed borrowed from Chan but had repaid the loan in full.
“In fact, he claimed that he had settled the loan by way of payment in cash and by way of transfer of shares in a public listed company,” he said.
Nantha said it must be borne in mind that Halim was not a simple-minded person or someone who was unfamiliar with commercial matters.
“By all accounts, the defendant is a businessman and would have been, or at any rate, ought to have been, aware of the implications of affixing his signature to a document,” the judge said.
Nantha said the bench had also noted that Halim did not respond to Chan’s letter dated Oct 19, 2018 and to the solicitor’s letter of demand dated Dec 4, 2018.
“The non-response to the latter documents is fatal to the defendant’s case. Being a person of business, the defendant could not have been unaware of the grave implications to himself by not responding to and repudiating the contents of both the letters,” he said.