KIRTHANA THARRANI & CO

ADVOCATES & SOLICITORS PEGUAMBELA & PEGUAMCARA

ADDRESS: 30-2, JALAN PJ8 S, SEKSYEN 8, 46050 PETALING JAYA, SELANGOR.
TEL: 03-58824144 / FAX: 03-58822373
EMAIL: KTCO.LEGAL@GMAIL.COM
WEBSITE: WWW.KTCOLEGAL.COM

PARTNERS BUSINESS HOUR

S.P. KIRTHANA LLB (HONS.) MMU MON – FRI
THARRANI LLB (HONS.) MMU 9:00 A.M. – 6:00 P.M.

OUR REF : KTC/CIVIL1/2022-2023/LITI/KS/W4

YOUR REF : TQ3_T1&T2_W4

DATE : 19.10.2022

Nur Fazini Asro Bt Ramzi Sulaiman

Lecturer, Faculty of Law,
Multimedia University Melaka Campus,
Jalan Ayer Keroh Lama,
75450 Melaka.

Dear Madam,
RE: PROBLEM SOLVING
Q1
The issue is whether the Bank can succeed in its claim.
This issue is in relation to the Limitation Period in bringing a civil action forward. According
to the Section 6(1) Limitation Act 1953, that the period of limitation is 6 years from the date
on which the cause of action has accrued. This is applicable to several types of actions, like
for when the action is founded on a contract or on tort.
Based on the facts given, it can be extracted that a private loan agreement is a contract. In
calculating the Limitation of Period, the date starts from when the breach has occurred. Here,
the case of Lim Kean v Choo Kean (1970) 1 MLJ 158, can be referred to. In this case, the
issue was regarding the date from when the period of limitation commences, whether it is
from the date when each excess payment was made or when the order from the Rent
Association Board has been given. The court stated that the Period of Limitation does not
begin until to run until the cause of action is complete and it is in fact not complete when all
the facts have not happened which are material to be proved in order for the Plaintiff to
succeed.
Here, it can be seen that the agreement took place on 1/6/2019 and everything well smoothly
until 1/11/2019 where Ali had defaulted payment and then subsequently, the Bank initiated
action on 2/11/2019.
From here, applying the case of Lim Kean, it can be inferred that the date of the breach,
1/11/2019 is when the date of Limitation period starts as that is the date Ali has defaulted the
monthly payment which was due as stated in the contract, payment was to be made every 1st
of the month. Since the breach had occurred, this is when the cause of action accrued. The
bank then took action against Ali on 2/11/2019 which is within the stipulated period under
Section 6(1) LA as it was the next day after the breach and within the period of 6 years.
Therefore, the cause of action is valid as it is well withing the Limitation Period as required.
To conclude, the Bank may succeed in its claim.
Q2
The issue is on which Court should Latifah commence her action against Hasnah for
recovery of possession of a house and arrears of rent.
The total sum is RM70K
a. Pecuniary limit (monetary claim)
-Sec 90 Subordinate Courts Act-Pecuniary jurisdiction for Magistrate’s Court
a First-Class Magistrate shall have jurisdiction to try all actions and suits of a civil nature
where the amount in dispute or value of the subject matter does not exceed one hundred
thousand ringgit
-Subramaniam Paramasivam’s case
b. Subject matter
-Can the Magistrate’s Court determine matter for recovery of possession of a house and
arrears for rent?
Sec 76(2) Subordinate Courts Act 1948, a Magistrates' Court shall have jurisdiction to hear
and determine any civil or criminal cause or matter arising within the local limits of
jurisdiction assigned to it under this section or, if no such local limits have been assigned,
arising in any part of Peninsular Malaysia Provided that no Magistrate shall have jurisdiction
to hear or determine any cause or matter arising in any State in and for which he has not been
appointed to be a Magistrate save in the manner and to the extent provided in the Criminal
Procedure Code Act 593 and the law for the time being in force relating to civil Procedure
-Latifah may file her action in Magistrates’ Court. However, under S.70 SCA
Sec 70. Recovery of immovable property (1) Subject to subsection (4), a Sessions Court
shall have jurisdiction to hear and determine any action or suit for the recovery of
immovable property, and thereupon to issue an order to the proper officer of the Court
to put the plaintiff in possession of the property.
(2) In any such action or suit, there may be added a claim for rent or mesne profits and
for damages arising to the plaintiff from the defendant holding over or resisting his
right of possession or re-entry, and for damages for breach of any covenant, condition
or agreement in relation to the premises.
-Latifah has options to choose whether to file in Magistrates Court or Sessions Court for her
claim in which if she files in Sessions Court and the court decided to award more damages
(not exceeding RM1M but more than her claim-RM70K, the sessions court can do so)
Q3
The issue is on whether the counterclaim should be heard in High Court instead
Sessions Court.
-Sec 65 (1) (b)-pecuniary limit for Sessions Court- not exceeding RM1M
-NST case
-Def’s CC exceeding the pecuniary limit for SS Ct to hear and determine the matter-therefore
under Sec 23 (1) CJA-HC have the jurisdiction to hear and determined the matter.
--->So does it mean that the Ptf’s action is heard in SS Ct while the CC by Def is heard in
HC?---> Both matter can be heard in HC
b. Why SA HC not Melaka HC?
Sec 3 CJA-territorial jurisdiction
-Forum of inconvenience-Inconvenience to the one who objected to the forum (court)- it is
not proper i.e the def object and file in transfer of proceeding to SA HC
-Sec 23 (1) read either or -Curry(Cause of action) breach of contract -where the breach of
contract (where the coa accrued)
-precedent cases In the case of Bank Bumiputra Malaysia Berhad v Melewar Holdings
Sdn. Bhd. & 4 Ors. [1990] 1 CLJ (Rep) 654, Mustapha Hussain J has held inter alia that:
"The breach of contract i.e., the failure of the defendant to pay the outstanding sums due
occured at Kuala Pilah. Despite the fact that all the transactions were concluded in Kuala
Lumpur, the principle cause of action i.e., against the borrower arose in Kuala Pilah and
this principle cause of action supersedes the defendants residential qualification under s.
23(b) of the Court of Judicature Act 1964"
-for breach of contract: court look at where the contract is being executed.- Ayer Keroh.
-Dal (Defendants resides) -Bandar Baru Bangi-Office -Subang Jaya in Sgor-SA HC
-For (Facts of the proceedings/subject matter)
-Lunch (Land in dispute)
-Sova
-Therefore, the proper forum or the forum of convenience is SA HC