You can get your money back without involving lawyers using these 3 simple steps.
This is known as a small claims procedure and it can be found in Order 93 of the Rules of Court 2012. No legal representation is allowed in a small claims action.
Order 93, Rule 2 Rules of Court 2012
“This Order shall apply to claims where the amount in dispute or the value of the subject matter of the claim does not exceed five thousand ringgit.”
This means that parties are to represent themselves individually unless it is expressly required by law. for example if you are a Company and being sued by a Plaintiff (individual). The Company must be represented by a lawyer because a Company cannot “self-represent” under the law pursuant to Order 12 rule 1(1) of the Rules of Court 2012.
Do note that this procedure only applies to the amount which does not exceed RM5,000.
The procedures involved to initiate a small claim action as follows:-
1. Obtain Form 198 or also called the Small Claim Writ and Statement of Claim from any Magistrates Court in Malaysia
a. Fill in your (Plaintiff) full name, IC number, and current address;
b. Fill in the borrower’s (Defendant) full name, IC number, and last known address;
c. State the exact amount you are claiming for ;
d. State the particulars of your claim e.g when it happened, why it happened. If you have proof of money borrowed such as bank-in slips, text
messages, etc include details on that as well such as the transaction number and so on;
e. Sign the form and hand over 4 copies to the Registry of the Second Class Magistrate together with RM10 or e-file it to Court accordingly;
f. Once you have e-filed the Form, you will obtain an extraction copy of the Form which includes the seal of the Court;
The Registrar will then affix the Court’s seal on the forms and set a hearing date for you.
2. Determine the address of the Defendant and serve the extracted copy of the Form to the Defendant.
After you send that form off by registered post is that the Defendant has 14 days from the day he receives the form to file a defence.
a. The Defendant will then respond to the particulars of your claim through Form 199 - Defence and Counterclaim (if any)RM4 (for a defence) or RM24 for a counterclaim.
- The Defendant must sign it and e-file it to Court accordingly or file with the Registry in 4 copies and must state down all the details and particulars of in disputing the Plaintiff’s claim such as:-
1. If the borrower (Defendant) admits that he owes you money, he will fill in the reasons why he admits to it 2. If the borrower denies that he owes you money, he must similarly fill in the reasons why there is no money owed b. If there is a counterclaim, A counterclaim is where the borrower claims money from you instead. the Plaintiff may file a further document under Form 200, also known as Defence to Counterclaim.
3. Attend Court at the Set Date
The Magistrates Court will formally give notification to both parties a Case Management (“CM”) date. CMs are attendance in Court required by both parties to sort out the administrative aspects of the case, parties are required to attend to get further directions and also to fix a hearing date.
Scenario 1:
If either of you fails to attend court, then the court can DISMISS the action ( throw your case out) or make an order that he thinks fit (Order 35, Rule 1).
Scenario 2:
If only you are ABSENT from court, then the judge can rule in favour of the Defendant and can order you to pay the Defendant for his counterclaim (if any) and even for any costs that he has incurred from defending himself from your claim under (Order 93, Rule 8) and done through Form 203.
Scenario 3:
If the Defendant ABSENT in court, the court can use Form 202 to order Defendant to pay up what Defendant owes you plus the costs you incurred for bringing this claim. The court will also dismiss his counterclaim (if any).
Scenario 4:
If the Defendant DOES NOT file his defence to your claim. The court may either rule in your favour using Form 201 or he may postpone the hearing to another date in order to allow your borrower to file his own defence.
Once the Order is sealed and extracted from Court, the Party may proceed to execute the Order and demand payment from them. The winner will usually also be entitled to costs, but the amount is subject to the discretion of the Magistrate and it will not exceed RM100.00.
**The Parties can later ask the court to “SET ASIDE” that decision within 21 days of the judgment being served (sent out) on you by the court under Order 10 Rule 1
Q: What if an order served on the person through the registered post but he/she fails to comply with this judgment/order?
A: You can make an application to the court through Form 208 (known as a notice of show cause) and after the court endorses it, you can serve it on the person using the same methods (either personally or by registered post) and file Affidavit of Service.
According to Form 208, it states that the person to note:
1. He must deposit the amount the court ordered him to pay you with the court within 10 days 2. If he doesn’t do so within 10 days, he must appear in court at the given date 3. If he doesn’t appear in court, the court will issue a warrant for his arrest
If the parties attend to court, then the judges will make one of the following three decisions:
1. He may allow the parties with an installment plan to pay back; 2. An order a writ of seizure and sale. The judges ordering court bailiffs to go to the parties’ property to seize his belongings for auction in order to pay back; 3. He can sentence your borrower to jail.
The entire process for a small claim action may be completed within the timeline of 3 to 4 months from initiation to the extraction of the Order, subject to the court’s schedule and barring any unforeseen delays.