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May it please the Court,

My Lords,

My name is May Eva Sofea Zainal and I appear as a co-counsel for the Respondent
in this matter and intend to deal with 2nd ground of appeal with the remaining issues
before this Honourable Court which is the unilateral mistake of identity does not render
the mare purchase and sale agreement invalid.

My Lord and My Lady,

My first submission will be that the mare purchase and sale agreement passed to
my client, Anil Kapoor makes him a bona fide purchaser.

Secondly, the mare purchase and sale agreement put Anil Kapoor under the
exceptions to the nemo dat quod non habet rule.

To begin with my first submission, I believe that the Appellant, Priyanka Chopra was
intended to contract with the person in front of her (Pinto), the middleperson or rogue.
It is important to know that the existence of a contract between the Claimant and
Middleman (rogue) is depended upon whether those parties had dealt face-to-face
(inter praesentaes) or whether they had dealt with each other by correspondence (inter
absaentaes).

My Lords,

It appears to me that the distinction was used and completely within the authority of
Phillips v Brooks, reported in the 2nd volume of the King’s Bench, of the year 1919 at
page 246 and 247,

(is the Court familiar with the fact of this case or would Your Lordships want me
to state the summary of the case?)

My Lords,

In this case where Justice Horridge held that as the dealings between the claimant
and the rogue were inter praesentes, there was a rebuttable presumption that the
claimant intended to contract with the person standing before him, howsoever he
identified himself. As a result, there was a contract with the rogue, albeit voidable,
pursuant to which the third party acquired good title to the jewellery.

Applying the principle in the present case, as the dealings between Chopra and Pinto
were done inter preasentes which was a face-to-face transaction where they met
inside an SUV, there was a presumption that Chopra intended to contract with Pinto
who was standing before her, despite she identified herself (as Aishwarya Rai) as to
she believed that Pinto was actually the vice president of the Equestriana Bank.

My Lord,

The next question in the present case, as Your Lordships will observe; was the
Appellant, Chopra had taken any (sufficient) reasonable steps to verify the identity of
the person she communicated with?

For such claim to succeed, it is important to take steps as to verify the identity of the
person we communicate with. Since she was contracting with the person through
hearing and sighting which aspects of the offeror’s identity that are material in causing
the other party to accept the offer.

Your Lordships, in my submission, I will seek to convince that these aspects very much
apply in the case of Lewis v Averay, to be found in the 1st volume of the Queen’s
Bence of 1972 starting at page 198;

(My Lords, do you wish to be re-acquainted with the facts of this case?)

This has been stated on the page 199, where the Court held that there was
nothing to displace the presumption that when the plaintiff accepted the cheque and
handed over the car and logbook, he concluded a contract with the person physically
present with whom he had been dealing. Under that contract the property in the goods
passed to that person, albeit a rogue, and his subsequent sale to the innocent
purchaser gave the purchaser the property in the car as against the plaintiff.

Your Excellency,

I would like to highlight the relevant facts in our case before the Court today: Prior to
the inter preasantes deal, Chopra has been receiving several false letters and emails
purportedly from Khan proposing the purchase of the three mares by the Bank and
she has replied to them. As a high-profile person, she should have went through the
authenticity of all the messages as it is not impossible to do in today’s world.
Furthermore, she should know that and the Bank was not authorised to purchase
horses.

On the day of the incident, Priyanka Chopra met Pinto and she did not
remember her though the fact that they already met before. Chopra who was in the
right state of mind on the day of the loan negotiation between H&S and the Bank, given
that they only took caviar and non-alcoholic sparkling wine, it is at her fault for not
recognising one of the Bank’s deputies. As to her hesitation and suspiciousness of
the identity did not prevent any contract arising between her and Pinto given that she
already knew Banks usually did not deal by cheque and proceeded to sign the
agreement. The fact that she is a vice president of a bank, she could access any
platforms and take her time to figure out the mess which she thinks suspicious.

My Lords, I believe that although few steps taken to check the identity of the
other person, her carelessness and negligent put her in that unfortunate situation. I
would not say that as reasonable as she should have discovered with due diligence,
she could have noticed something suspicious had she made certain inquiries after
inquiry. Hence, I wish to submit that it is arguable that Chopra's fundamental
importance to the identity of Rai, since she should not have contracting with Pinto after
she had taken few steps to assure the voice of Khan, yet still hesitated. Chopra still
proceeded with the contract in regard of a gesture of goodwill based on their business
relationship (Para 13 of Moot Problem).

Your Excellency,

It is my respectful submission that my client, Anil Kapoor had no knowledge of the


scam and could not have reasonably known of or discovered the scam.

I wish to emphasize in the similar case as stated before in Lewis v Averay at page
207, Lord Denning stated that in order to prevail, three common law elements of a
bona fide purchaser which are the prerequisite to be established; to show that he
acquired the property in good faith, for value, and without notice of the prior adverse
claim, thus the mistake of identity renders a contract voidable, not void.
My Lord, the position of a purchaser in good faith was further explained by this Court
in a Malaysian case of Kamarulzaman Omar & Ors v. Yakub Husin & Ors, reported
in the 1st volume of Current Law Journal in 2014 at page 987:

(Would Your Lordships like me to brief the summary of the case?)

The point of the case is put so very shortly by Jeffrey Tan FCJ that I cannot do any
better than adapt his judgement at page 1025:

““…The title or interest of a subsequent purchaser is only liable to be set aside if the
subsequent purchaser is not a bona fide subsequent purchaser. The title or interest
acquired by a subsequent purchaser in good faith and for valuable consideration, or
by any person or body claiming through or under such a subsequent purchaser, is
indefeasible”.

In our present case, Anil Kapoor position over which he has absolutely no control,
such as the nature of the original owner's (Chopra) mistake to identify the real person
and the means by which the original contract was concluded. The mares were bought
in good faith in all innocence.

My Lord and My Lady,

My second submission that the mare purchase and sale agreement put Anil Kapoor
under the exceptions to the nemo dat quod non habet rule. I wish to open the case of
Bishopgate Motor Finance Corporation Ltd v Transport Brakes Ltd, reported in
the 1st volume of King’s Bench of year 1949 starting at page 322,

(Is the Court familiar with this case?)

In this case, Lord Denning has defined the position of the modern law where a person
who takes a good faith and for value without notice should get a good title.

The statement is subject to a number of exceptions which are contained in the Sale of
Goods Act 1957. It is essential to explain that when any of these exceptions apply, the
original owner of the goods loses his title, thus these exceptions protect the innocent
purchaser.
My Lord,

Having explained the general principle and pointing out that this is subject to a number
of exceptions, I would like to refer to the first exception in Act 382, Section 27(1) of
SOGA where the owner by his words or conduct represented to the buyer that
the seller is the true owner or has the authority to sell, which means estoppel is
applied in cases where the owner of the goods acts in such a way that it appear that
the seller has the right to sell the goods. As a consequence, the owner is then
prevented (estopped) from denying the facts as he represented them to be.

In the present case, there is more likely to include estoppel by conduct or more
specifically, by negligence, from the evidence and fact of the case, more relevant in
this case. Other than having a good faith believing that Pinto and Puri were the actual
owner of the mares, Chopra as the original owner by her carelessness/negligent act
has failed to compromise her duty of care towards the management of HSE as a CEO
allowing Pinto and Puri in deceiving her and appear as the owner/ having the authority
to sell mares in bargain to Anil Kapoor.

Your Lordships,

This is within the authority of Syarikat Batu Sinar Sdn Bhd & Ors V Umbc Finance
Bhd & Ors, to be found in the 3rd volume of Malayan Law Journal of 1990 at 468.

Here, I will direct the issue on the scope relevant to the current case where the
estoppel by negligence in that case was alleged to be the failure of UMBCF to take
any reasonable steps for six months to ensure that UMBCF's claim to ownership to
the Caterpillar (the tractor so bought) was registered or endorsed by the RIMV on the
registration card of the Caterpillar.

In the case before us, as abovementioned, Priyanka Chopra has negligently failed to
take initial and reasonable steps to discover the modus operandi in scamming her as
well as failure to disclose the information of the real Aishwarya Rai identity given the
fact she possessed high position in her company and they have been meeting
beforehand. Ergo, impliedly that Pinto who falsely representing Khan and Equestriana
Bank Berhad posesses the right to sell the goods.
My Lord and My lady,

I would also like to submit that the mares are purchased under a voidable title.

In Section 29 of SOGA provides that if a party who has a voidable title to the goods
and resells them to an innocent third party, then that third party will gain good title to
them provided that the original contract has not by then been avoided. Two conditions
to be fulfilled are 1) Owner has not rescinded the contract with the seller at the time of
the contract of sale. Any rescission made by the owner must be informed to the seller.
It is already sufficient if the owner has shown an intention to rescind. 2) The buyer is
a bona fide purchaser.

Applying to this case, since Chopra only realised the scam after both of the mares
already sold to Anil Kapoor within four days the incident, making the mare purchase
and sale agreement that have been made with Kapoor immediately afterwards
voidable.

My Lord,

For the second requirement as to being a bona fide purchaser. In the present case,
Anil Kapoor has been authorized as a bona fide purchaser who bought the mare from
Pinto and Puri by bargain and, by no fault of his own, have no idea that another party
has been previously own the mares. These maxim of the exceptions to nemo dat quod
non habet protects a bona fide purchaser for value and without notice who has no
reason to question the authority of the seller to sell the property in question.

Therefore, Kapoor has met the standards and requirement to be an eligible bona fide
purchaser and consequently may claim for the title over the mares. These exceptions
entitled him to protect his right who has no notice that something is not quite right with
the sale in the first place.

My Lord, in conclusion, the Respondent prays to this Honourable court to dismiss the
appeal. We are therefore of the view that there has been no misdirection by the learned
trial judge on this finding of fact. I see that my time is up, unless I may be of further
assistance, that completes my submissions.

***If Hema states about Ingram in rebuttal:

“Opposing counsel’s argument overlooks the fact that…” or “…overlooks the case of…”