There are instances where we encountered litigants who felt that the estimate legal cost does not justify the amount of their monetary claims or the debts sought to be recovered.
Here, we share on a self-help procedure called “Small Claims Procedure” on how a litigant may go about initiating small claims procedure in pursuant to Order 93 of the Rules of Court 2012.
It is also the rule that a party resorts this procedure shall not be represented by a solicitor or lawyer.
Any aggrieved individual (‘the Plaintiff’) may initiate such proceedings in the Magistrates’ Court against another individual (‘the Defendant’).
Limit of claim
Such procedure shall only be applicable to claims where the amount in dispute or the value of the subject matter of the claim does not exceed RM5,000.
Simple Procedural Rules
- The plaintiff shall state in the prescribed Form 198 the amount and particulars of the claim.
- The said Form 198 may be effected by personal service or by prepaid registered post addressed to the last known address of the Defendant.
- If the Defendant who has been duly served with the said Form 198 disputes the claim, he may deliver his defense and counterclaim (if any) in Form 199 to be filed in four copies within 14 days after service of the claim.
- Where there is a counterclaim, the Plaintiff may file a defense to such counterclaim in Form 200.
Judgment in Default
If the Defendant does not file his defense, the Court may give judgment for the Plaintiff on the hearing date or may in its discretion adjourn the hearing to enable the Defendant to file his defense.
Where the Defendant is absent or admits the claim, the judgment will to be entered accordingly.
Having said that, the Plaintiff must also play an active role in attending the hearing lest an adverse judgement be entered against him.
Service of Judgment
Every judgment or order made or given under this procedure shall be served on the other party against whom the judgment or order is made by prepaid registered post by the Court.
Enforcement of Judgment
Should the Defendant against whom the judgment or order is made has not complied with the judgment or order, the Plaintiff may file in the Court a notice to show cause in Form 208, and serve by personal service or by prepaid registered post addressed to the last known address of the Defendant.
The Court after examining the judgment debtor may:-
(a) order a writ of seizure and sale to be issued in Form 84 with such modification as may be necessary as to endorsement;
(b) allow the judgment debtor time to settle the judgment debt, or pay the debt by instalments; or
(c) order the judgment debtor to be committed to prison.
Should parties decide to settle the matter at the time of hearing of the matter, the Court shall where possible assist the parties to effect the settlement of a case by consent.
Such settlement will normally be effected by consent judgment as provided under the rule.
The Court’s role in arriving at a decision in this procedure is inquisitorial in nature, which means Court may ask the parties for further information and in particular for a short description of the claim and the defense, as the case may be, if such description has not been adequately supplied earlier.
The Court shall then consider the documentary or other evidence, including affidavit evidence, tendered by the parties and in their presence shall hear such oral evidence and argument, including written argument, as the parties may submit.
The Court may in its discretion award costs not exceeding RM100 to any one party.
About the Author:
This article was written by Chia Swee Yik, Partner of this Firm, who endeavors to provide practical advice on debt recovery.
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