Court File and Parties

COURT FILE NO.: CV-20-00648346

DATE: 20210519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BASKARAN KANDIAH and KARAN HOLDING BV Plaintiffs

AND:

TEKNO MEDIA INC., MTEK SECURITY INC. and MATHAN SHANMUGARASA Defendants

BEFORE: Mr. Justice Chalmers

COUNSEL: R. Lachmansingh and K. Lee, for the Plaintiffs

M. Shanmugarasa, self-represented

HEARD: May 18, 2021, by videoconference

ENDORSEMENT

[1] The Plaintiffs bring this motion for summary judgment.

[2] The Plaintiffs state that they loaned the sum of $1,000,000 to the Defendants, Tekno Media and MTEK Security. The loan was guaranteed by Mathan Shanmugarasa. According to the Plaintiffs, the parties entered into a Loan Agreement dated March 15, 2018. Baskaran Kandiah states that he executed the Loan Agreement on his own behalf and on behalf of Karan Holding BV, and that MTEK Security executed the Loan Agreement on its own behalf and as agent for Tekno, and Mr. Shanmugarasa executed the Loan Agreement as guarantor.

[3] Mr. Shanmugarasa denies that he signed the Loan Agreement, and states that his signature is a forgery. He states that the Plaintiffs did not loan any money to the Defendants. He argues that Mr. Kandiah provided the money to MTEK and asked that Mr. Shanmugarasa distribute the money to individuals identified in a Promissory Note signed by Mr. Shanmugarasa on March 3, 2018.

[4] The Plaintiffs state that the Promissory Note is a forgery. It is also the Plaintiffs’ position that there is no evidence that the individuals identified in the Promissory Note were paid by Mr. Shanmugarasa. According to Mr. Shanmugarasa, the payments were made in cash and no receipts or other documentation confirming payment were received. The Plaintiffs filed the affidavit of one of the individuals identified in the Promissory Note, Kailan Ariyarajah who deposed that he did not receive a payment from Mr. Shanmugarasa.

[5] The credibility of the parties is clearly in issue on this motion. Mr. Shanmugarasa states that he did not sign the Loan Agreement and that his signature was forged. Mr. Kandiah states that the Promissory Note is a forgery. Rule 20.04(2.1) provides that the Judge may exercise his powers to evaluate the credibility of a deponent. R. 20.04(2.2) provides that for purposes of exercising the powers set out in R. 20.04 (2.1), the Judge may order that oral evidence be presented by one or more parties.

[6] It is my view that oral evidence from Mr. Kandiah and Mr. Shanmugarasa with respect to the circumstances surrounding the execution of the Loan Agreement and the Promissory Note will assist me in making the determination of whether any of the issues raised in the action require a trial: Consolidated Air Mechanical Services Inc. v. Flesch, [2011] O.J. No. 5431, 2011 ONCA 764.

[7] The oral evidence of Mr. Kandiah and Mr. Shanmugarasa will be the only additional evidence for the motion. R. 20.02 states that the parties are required to provide the Court, in affidavit material or otherwise, all of the evidence which they intend to rely upon on the motion. At the time the motion is heard, the record is to contain all the evidence that would be introduced at trial. The oral evidence of Mr. Kandiah and Mr. Shanmugarasa is to supplement the evidence already filed by the parties. No additional affidavit or oral evidence is expected to be filed on the motion.

[8] The motion is adjourned to a date convenient to the parties and when I am available. On the return date of the motion, Mr. Kandiah and Mr. Shanmugarasa will provide sworn oral evidence. The oral evidence may be by videoconference. After providing their oral evidence in-chief, the witnesses will be subject to cross-examination.

[9] The parties are directed to contact the motions co-ordinator to arrange for the return date of the motion. A half-day appointment is required.

DATE: MAY 19, 2021