As of November 1999, the credit The plaintiff argued that she

balance of the plaintiff’s account stood asserted the cheques under duress,
at RM160, 941.45. However, on 2nd threat or order of the robbers. She
November 1999, about 11 am, the then claimed for the return of
RM160, 941.45 .
plaintiff were robbed by at the
plaintiff’s firm which resulted the
plaintiff to be forced to sign two
cheques amounting RM178,000. The
robbers went to the bank around 11.40 The action of the bank paying out
the robbers to be said as a breach of
am to cash the cheque and the plaintiff fiduciary duty or duty of care to her.
received a phone call at about 12 noon,
from the bank asking if it was in order
to pay out on the cheque since the
cheque were cash cheque, to which the
plaintiff answered ‘yes’. The bank denied the existence of
any such duty, and in any case
counter-claimed for the extra sum of
RM17,058.55 (overdraft)
 Plaintiff was robbed and forced to sign two cheques
 The plaintiff received a call Syed who asked about the confirmation
of the cheque being cashed out and said ‘yes’ under duress.
 As there is only a sum of RM160,941.45 in the plaintiff’s account,
there is an overdraft amount of f RM17,058.55.
 Plaintiff supplied for particulars of breach of fiduciary duty and or
duty of care as she suffers from emotional and mental distress
 Contended that is no habit of plaintiff to cash out a large sum of THE PLAINTIFF’S
money and that there is an attempt of forgery by a third party about
a month ago.
CASE

 Defendant denies all liabilities and averred that any

contractual or other relationship is governed by the THE DEFENCE
express and/or implied terms and conditions
 The act of Syed, the defendant’s employee to confirm
upon the issuance of cheques
 The defendant did not have knowledge of what was
happening in the plaintiff’s firm.
 Counter-claimed for an amount of RM17,058.55 as an
overdraft
 (iv)
The plaintiff has answered ‘yes’ . There is no breach of fiduciary
duties on the part of the defendant as the bank acted in accordance
with the instruction given by the plaintiff.

(iii)
Verjee v. CIBC Bank Trust Co [2001] - a bank would have to
consider whether to honour the customer’s cheque or
otherwise, with additional circumstances.

(ii)
Where cheque orders the payment of excess of
the sum in the customer’s account, a bank is not
obliged to pay out the excess monies.
Contractual relationship

(i)
The duty of care of an agent is to act with reasonable
care and skill in interpreting, ascertaining and acting in
accordance with the instructions given by the customer.
 It is Defective
The act of the
unreasonable signature The bank is
bank There is no
to expect the would not liable for
removing a evidence that
bank to have the loss faced
sum of the defendant
foresee that caused by the plaintiff
RM160, 941.45 knew of what
there is the bank as the bank
from the happened to
robbery by to acted in a
plaintiff’s the plaintiff’s
looking at the dishonou reasonable
account is an office,
sum of the r the manner.
authorized act
cheques cheques
 The plaintiff’s action was
dismissed with costs and the
defendant’s counter-claim was
allowed with costs

Cheques in the
matter were
There is no
The relationship issued by a The bank is not
knowledge on
between a bank legal firm – any obligated to pay
behalf of the
and a customer instruction monies in
defendant about
is purely done by any of excess of the
what happened
contractual- the members amount
in the plaintiff’s
duty of care shall be fulfilled available
office
accordingly by
the defendant
The judgment given by Abdul Wahab Patail J was clean-cut and just
in which I agree to the grounds of the judgement itself. It is
reasonable and clear to myself that even though a bank acted as an
agent, the bank should not be said to know of what happened at the
premises or events occurring to the customers. It is unreasonable to
expect the bank to foresee that there is robbery which has caused
the customer to declare the order of the cheques payment to be valid.
The bank is not in breach of fiduciary duty and it has to be noted that
the customer should have given a defective signature in order for the
bank to dishonour the cheques, in which the plaintiff in this case has
failed to do so. Moreover, the act of the bank paying monies in
excess of the amount in the customer’s account is not an
unreasonable and reckless act as it is just over 10% of the amount of
the customer’s account, in which the bank has considered the
circumstances of the customer herself. Therefore, the bank (the
defendant) act is valid and should not be held liable for the loss
faced by the plaintiff.
It is in my opinion that the decision was seemed to be morally unjust
to the plaintiff. The fact that there has been an attempt to forge the
plaintiff’s account a month ago should be taken into account.
Although the overdraft was less than 10% of the plaintiff’s sum of
money, it should be measured that the act per se was not of a
plaintiff’s normal behaviour as she has been reportedly not often to
issue such a lump sum of cheques. I observed that the court was
too dependent on the affirmative statement of plaintiff when she was
threatened. It was done with no option in hands for her and others’
safety. The judge was seemed to take a very conservative approach
and not trying to look at all circumstances of the cases. This also
includes directing the plaintiff to pay for the overdraft when the
plaintiff has already suffered such a huge amount, not to be
forgotten emotional distress.
I agree with the decision made by the judge on this case to dismiss
the plaintiff’s application as the defendant had carried out his duty
with care. The payment was made after he obtained the confirmation
from the plaintiff through the phone call. Furthermore, the defendant
was clearly unaware about the plaintiff’s situation and it would be
very unreasonable to extend the duty of care on the defendant.
 RM300,000 RM300,000

• The plaintiff had deposited RM300,000 on fixed deposit with the Bank.
01
• The plaintiff alleged that the Bank uplifted the fixed deposit without the
plaintiff’s consent and credited it to the account of Malrich pursuant to an
02 alleged lien in favour of the Bank as a pledge for a loan granted to Malrich.

• The Bank denied the allegation and contended that the plaintiff had given
her consent and approval through the plaintiff’s letter.
X
 PLAINTIFF’S CASE
THE DEFENCE

The money deposited

with the Bank could
not constitute a
security over which it A fixed deposit account could
could exercise a lien be the subject of lien
as the fixed deposit
represented the
Bank’s indebtedness
to the plaintiff
 Whether the fixed deposit receipt created a valid lien in favour of the Bank
as security for an overdraft facility which was granted by the Bank to
Malrich?

I
GENERAL PRINCIPLE JUDGEMENT
The fixed deposit per se is not
subject to a lien A C The money kept in the fixed deposit
is a security for the payment of any
money owing by the third party to
the Bank.

B
PRESENT CASE
If the fixed deposit is considered together with the
plaintiff’s letter, it could be argued that the Bank has a
lien on the money kept in the fixed deposit
 Whether the act of the Bank in uplifting the fixed deposit
on the ground that there was lien was bad in law?

• gave the Bank the liberty to withdraw the

Plantiff’s letter fixed deposit and apply the proceeds
thereof to discharge the amount owing
(22/10/1982) by the third party, without any reference
to her

• valid if it was done in accordance with

Bank’s action the terms of the said letter.
 The judge dismissed the plaintiff’s
application and ordered that the
costs of the application be paid by
the plaintiff to the Bank.

Where the customer

gives instructions in
writing to a third
The bank has a party requesting the
general lien on all third party to pay the
securities deposited customers’ bank the
with the bank by a sum due and owing
customer. by the third party to
the customer, that
sum is subject to
lien.
In my opinion, Zakaria Yatim J in this case has given just and rational
judgement to which I agree with the grounds stated by him. He has
referred several cases which has laid down principles of lien to
which he hold that the money kept in the fixed deposit is a security
for the money payment of any money owing by the third party to the
Bank, which then stated that if the amount in the fixed deposit was
uplifted and credited to the account of the third party according to
the plaintiff’s letter, the Bank’s action was valid in law. He has
showed that the plaintiff’s letter has given the Bank liberty to
withdraw the fixed deposit and hence, it was valid in law.
It is in my observation that the judge in this case has acted rationally.
He referred to cases quoted by both counsels which include Manuel
Misa and Halesowen Presswork by defendant and plaintiff
respectively. Facts of the cases were laid down to see the similarities
and differences as thus he reached to the conclusion that the fixed
deposit per se is not subject to lien. The primary evidence was seen
strong to hold that the money kept in fixed deposit is security for the
payment by third party is of the plaintiff’s letter dated 22 October
1982. This letter holds a clear through judgement of how the bank
was given liberty to withdraw the fixed deposit.
I agree with the high court decision on this case based on two
justifications. First, concerning the issue on the validity of lien, since
the fixed deposit was considered together with plaintiff’s letter,
therefore it could be argued that the lien was valid. Second, with
regards to the act of the Bank in uplifting the fixed deposit, the
plaintiff clearly gave consent to the Bank to uplift the fixed deposit
without the plaintiff’s approval or authority through the said letter.
Therefore, the defendant’s action was valid in law.
0