A guarantor cannot demand that a creditor exhaust remedies against the principal debtor before pursuing claims against them; concurrent actions are permissible under law.

Ong Chee Kwan J:

Introduction

[1] The 3 rd Defendant ("D3") is one for three guarantors who had executed guarantees for various loans extended by the Plaintiff to the 1 st Defendant ("D1").In addition to the guarantees, a propertylocated at Damansara Heights was also charged to the Plaintiff as security.

[2] The Plaintiff has commenced this civil action against D1 and the guarantors. At the same time, the Plaintiff also commenced foreclosure proceedings against the charged property.

[3] Enclosure 10 is the application filed by D3 for a stay of the present proceedings against him until the disposal of the foreclosure proceedings. Specifically, D3 sought for the following order:

"that all further proceedings in this civil suit be stayed until the land held under H.S. (D) 32344, P.T. No 1140, Mukim Kuala Lumpur, District of Kuala Lumpur, Federal Territory of Kuala Lumpur is sold by a Court-sanctioned Public Auction, pursuant to an application by the Plaintiff for an Order for the sale of the said land charged to the Plaintiff under s 256 of the National Land Code, 1965 or sold by other means, and the sale proceeds paid to the Plaintiff "

[4] After hearing oral submissions from counsel, this Court found no merits to D3's application under encl 10 and dismissed the same with costs.

Background Facts

[5] he background facts below are based on D3's narratives in his written submission.

The Parties

[6] The 2 nd Defendant, Dr Ampikaipakan Kandiah, ("Dr Ampi"), is a respiratory specialist at Pantai Hospital, Kuala Lumpur and a renowned philanthropist.

[7] The 1 st Defendant, Umapagan A/L K Ampikaipakan ("D1"), a former radio host, is Dr Ampi's son.

[8] The 4 th Defendant, Sivakamasundari Narayani a/p K Ampikaipakan ("D4"), is Dr Ampi's daughter.

[9] Dr Ampi is the registered proprietor of the property with the street address, 55, Jalan Beka, Damansara Heights, Bukit Damansara, 50490 Kuala Lumpur, located on freehold land and held under H.S. (D) 32344, P.T. No 1140, Mukim Kuala Lumpur, District of Kuala Lumpur, Federal Territory of Kuala Lumpur ("the Property"). He lives in an upmarket bungalow at the Property, with his wife Thamayanthi Devi Ampikaipakan ("Thamayanthi") and D1.

[10] D3, Arubugam a/l Suppiah was a longstanding friend of Dr Ampi.

[11] Around 1982, the D3 began consulting Dr Ampi as a lung specialist. He had been the D3's personal physician for over 30 years.

Circumstances Leading To The Signing Of Guarantees

[12] Sometime in 2010, Dr Ampi invited the D3 for tea at the Property, and requested D3 to act as a guarantor for a bank loan. Contrary toDr Ampi's assertion, D3 did not volunteer to be a guarantor. Dr Ampi represented to D3 that he intended to finance the reconstruction of his house into a 3-storey bungalow, and went on to state that he had secured a loan from the Plaintiff (" Bank ") to finance the building works. D3 was told by Dr Ampi that the Bank required 3 guarantors for the loan, and his son-in-law (D4's husband) had refused to sign as a guarantor.

[13] D3 assumed that Dr Ampi was the borrower of the loan as the Property belonged to him, and he was the largest earner and the most financially stable, given his medical practice in that family. Most importantly, Dr Ampi did not tell D3 that anyone apart from him (Dr Ampi) would be the borrower. Completely trusting Dr Ampi, D3 agreed to be a guarantor.

[14] In 2010, D3 signed 2 letters of guarantee on 2 separate occasions at the Property, with no copies of the guarantees provided to him either by the Bank or Dr Ampi. Neither were copies of the loan agreement provided to D3.

[15] Sometime in 2011, Dr Ampi's wife, Thamayanthi, informed D3 that a third guarantee was required. D3 signed the further guarantee at the Property. On this occasion, no Bank representatives were present, unlike in the past. Again, a copy of the guarantee was never provided to D3.

[16] Over the following 14 years, D3 was not kept informed by the Bank about the status of the loan