DAVID MC KENZIE

VS
MENTARI BANK BERHAD

(Date of Hearing: 15 October 2016)

(Date of Submission: 15 October 2016)

Counsel for the respondent:

1.

Mohd Ramdan Bin Abdul Malik

2.

Dayang Nur Izzati Binti Abang Busman

3.

Nur Athira Binti Ismail

4.

Nur Izatie Binti Lesa

5.

Andy Yanto Bin Mohammad Ali

Of, Messrs Downny Reuters Co. Ltd.

BRIEF FACTS OF THE CASE

[Plaintiff]
David Mc Kenzie
v
[Defendant]
Mentari Bank Berhad
1. The plaintiff, Mr David Mc Kenzie was a singer at Som Tam Productions.
2. On 7 October 2015, he opened a current account No. 1418-0000022 with defendant bank,
Mentari Bank Berhad which carry out the banking business and has a branch at Block 8,
Kompleks Perhentian, Jalan Megah, Kuala Lumpur.
3. On 8 October 2015, he paid a cheque for RM 5,378.06, drawn in favour of a partnership
firm, Som Phat Thai Travel and Tours of which the plaintiff was a partner.
4. On 10 October 2015, the cheque was subsequently returned by the bank.
5. In the meantime, the plaintiff, Mr Mc Kenzie had issued several cheques which were
dishonoured due to insufficient funds.
6. These cheques were returned with the reason refer to drawer.
7. Thereafter, Mr David Mc Kenzie sent a letter dated 12 October 2015 to the Bank requiring
an explanation but no response given by the bank.
8. Dissatisfied with the conduct of the defendant, the plaintiff instituted an action at the High
Court. Mr David Mc Kenzie brought an action for damages against Mentari Bank Berhad for
wrongfully dishonouring the cheques drawn by him, in breach of their agreement.

OUTLINE OF SUBMISSION
SENIOR COUNSEL:

ISSUE 1: Whether Mentari Bank Berhad have to pay the sue that have been issued
by David Mc Kenzie as the breach of the agreement?

ISSUE 2: Does Mentari Bank Berhad have some protection regarding the action for
damages brought by David Mc Kenzie?

DEFINITION OF NEGOTIABLE INSTRUMENT: "A negotiable

instruments means a promissory note, bill of exchange or cheque payable either to
order or to bearer.

JUNIOR COUNSEL:
1. THE FEATURES OF BILL OF EXCHANGE:
Bill of exchange can be defined as a form of a written promise that the person who
takes the bill will be paid the amount stated in the bill when he presents it at the proper place
and time by referring to the Section 3(1) of Bills Of Exchange Act 1949.

2. RELEVANT LAW:
According to Section 138 of the Negotiable Instrument Act, the dishonour of cheque
is a criminal offence and is punishable by imprisonment up to two years or with monetary
penalty or with both. If bank decides to proceed legally, then the drawer should be given a
chance of repaying the cheque amount immediately. Such a chance has to be given only in
the form of notice in writing.

3. CASE:
Tan Ah Sam v Chartered Bank
This Tan Ah Sam v Chartered Bank is partly similar to our case. In this case, there
was no agreement express or implied that the plaintiff was permitted to draw before the
cheque was cleared; when the plaintiff issued the cheques, there was clearly no sufficient and
available funds to meet them and the defendants were justified in dishonoring those cheques.

CONCLUSION:

Mentari Bank Berhad do not have to pay the sue issued by David Mc Kenzie.

 Mentari Bank Berhad do have protection against David Mc Kenzie

action.INTRODUCTION
Your Excellency, may it please the Court. My name is Mr. Mohd Ramdan Bin Abdul
Malik, and I, along with my co-counsel, Miss Dayang Nur Izzati Binti Abang Busman, Miss
Nur Athira Binti Ismail, Miss Nur Izatie Binti Lesa, and Mr. Andy Yanto Bin Mohammad Ali,
from Downny Reuters Co. Ltd., representing on behalf of the defendant of this action,
Mentari Bank Berhad.
Your Excellency, I will be dealing with 2 issues and on the definition on the
negotiable instruments while my co-counsel will continue to deliver 3 other submission. The
submissions that included are, first, the characteristics of bill of exchange. Second is the
relevant law related to this action and the last submission is about the cases on termination of
bankers to pay
Your Excellency, I proceed with the issue. This Court should find in favour of the
defendant, Mentari Bank Berhad. The first issue is, whether Mentari Bank Berhad have to
pay the sue that have been issued by David Mc Kenzie as the breach of the agreement? My
second issue is, does Mentari Bank Berhad have some protection regarding the action for
damages brought by David Mc Kenzie?
A negotiable instrument is a document guaranteeing the payment of a specific
amount of money, either on demand, or at a set time, with the payer named on the document.
According to Section 13 of the Negotiable Instruments Act, "A negotiable instruments means
a promissory note, bill of exchange or cheque payable either to order or to bearer.
The next subsequent submission will I submit to my co-counsel. Thank You.

ARGUMENT 1
With respect to the first point Your Excellency, I will discuss further about the
features of bill of exchange.
First of all, bill of exchange can be defined as a form of a written promise that the
person who takes the bill will be paid the amount stated in the bill when he presents it at the
proper place and time by referring to the Section 3(1) of Bills Of Exchange Act 1949.

The features of the bills of exchange is payable to the order of the specified person
when the name of the payee is stated. Payable to bearer is a bill on which it is stated that the
bill is so payable, in example payable to bearer or a bill on which the only or last
endorsement is an endorsement in blank. The other features are must be supported by
consideration capacity to incur liability as a party to a bill is co-extensive with capacity to
contract. Bill of exchange will not invalid by reason that it is not dated. It is not invalid by
reason only that it is ante-dated or post-dated, or that is bears date on Sunday.

To conclude this first argument, the contain of essential features of the bill of
exchange are an unconditional order, must in writing, addressed by one person to another,
must be signed by person giving it, requiring the person to whom it is addressed to pay on
demand or at a fixed or determinable future time, must have a sum certain in money, to the
order of a specified person or to bearer, must be supported by consideration, capacity to
contract by bill of exchange and lastly the date of bill.

The second argument will be presented by Dayang Nur Izzati binti Abang Busman,
Your Excellency.

ARGUMENT 2
Your Excellency, there is one section that relevant to this case.
According to Section 138 of the Negotiable InstrumentsAct 1881, the dishonour of
cheque is a criminal offence and is punishable by imprisonment up to two years or with
monetary penalty or with both.
If bank decides to proceed legally, then the drawer should be given a chance of
repaying the cheque amount immediately. Such a chance has to be given only in the form of
notice in writing.
The bank has to sent the notice to the drawer with 30 days from the date of receiving
Cheque Return Memo from the bank. The notice should mention that the cheque amount
has to be paid to the payee within 15 days from the date of receipt of the notice by the drawer.
If the cheque issuer fails to make a fresh payment within 30 days of receiving the notice, the
bank has the right to file a criminal complaint under Section 138 of the Negotiable
Instruments Act 1881.
Your Excellency, based on David Mc.Kenzie v Mentari Bank Berhad case, refer to
section 138 will says, David must pay the amount of money directed by the bank within
given period of time. If he unable to do so, further action will be taken by the bank.
Your Excellency, now proceed to Miss Nur Izzatie Binti Lesa. Thank You.

ARGUMENT 3
Your Excellency, on this third argument, I will inserting the case of Tan Ah Sam v
Chartered Bank regarding when the customer has insufficient funds to cover the amount of
the cheques.

Tan Ah Sam v Chartered Bank

Facts: The plaintiff was fruit supply contractor. He opened a current account with the
defendant bank on 7 November 1968 and 8 November 1968, he paid in a cheque for
$1306.71, drawn in favor of a partnership firm of which the plaintiff was a partner. The
cheque was subsequently returned by the bank. In the meantime, the plaintiff has issued
several cheques which were dishonored due to insufficient funds. These cheque were returned
with the reasons refer to drawer. The plaintiff brought an action for damages against the
defendant for wrongfully dishonoring the cheque drawn by him, in breach of their agreement.
Held: In this case, there was no agreement express or implied that the plaintiff was permitted
to draw before the cheque was cleared; when the plaintiff issued the cheques, there was
clearly no sufficient and available funds to meet them and the defendants were justified in
dishonoring those cheques. Appeal dismissed

Your Excellency, to conclude our argument, I passed it to Mr. Andy Yanto Bin
Mohammad Ali for the next part.

CONCLUSION
May it please Your Excellency, I as the last counsel; Andy Yanto Bin Mohammad
Ali will fill the last session with the conclusion for our defendant.
Based on the case Tan Ah Sam v Chartered Bank, Mentari Bank Berhad is legally to
dishonoring the cheques due to insuffient funds in David Mc Kenzies account to cover the
amount of his cheques. Hence, Mentari Bank Berhad do not do any breach of agreement.
Therefore, based on the first issue, Mentari Bank Berhad do not have to pay the sue issued by
David Mc Kenzie.
Next Your Excellency, due to insufficient funds in David Mc Kezies account, Mentari
Bank Berhad dishonored his cheques. Based on the section described by one of the counsel,
the bank have the right to file a criminal complaint under Section 138 of the Negotiable
Instruments Act 1881 because of debt arrears of David Mc Kenzie. Referring to the issue
described by senior counsel, Mentari Bank Berhad are protected by this act.
Your Excellency, if there is no further question, I urge this Court should find in
favour of the defendant, Mentari Bank Berhad