An undischarged bankrupt must obtain prior sanction to maintain any action; failing which, the action is void and dismissible.

JUDGMENT

John Lee Kien How @ Mohd Johan Lee JC:

1. Introduction

A. Facts Of The Case

[1] The Plaintiff was one of the co-proprietors of a property held under H.S.(M) 29456 (formerly known as H.S.(M) 44 PT 4601, Mukim Rawang, Daerah Gombak,Negeri Selangor ("the Property") which was charged to the First Defendant as a security for a housing loan granted. The other co-proprietor cum co-chargor was one Thaianairgee A/P Saminathan (NRIC No: 580320-10-5682) who is the Plaintiff's mother.

[2] The First Defendant ("D1") is the financial institution which granted the housing loan to the Plaintiff and his mother (collectively "the Borrowers") and had been registered as the chargee of the Property.

[3] The Second Defendant ("D2") who is also the intervener in this present suit, is the current proprietor and the successful bidder for the Property under the Proclamation of Sale ("the POS").

[4] The Borrowers were granted housing loan by D1. The housing loan was secured by a charge (No. Pers: 5301/2005) over the Property ("the Charge"). However, the Borrowers later defaulted in the payment. As a result, D1 commenced legal action against the Borrowers.

[5] D1 then applied for a foreclosure of the Property to enforce its right under the Charge. The application was made to the Gombak Land Administrator ("the GLA") for an order for sale ("OFS") of the Property. The Property was successfully bid by D2.

[6] The Plaintiff now applies (without his co-proprietor cum co-chargor and co-borrower) before this Court vide Originating Summon ("Enclosure 1"), amongst others, for:

a) A declaration that the OFS dated 25 January 2018 for the Property was void ab initio and has to be cancelled in accordance with the National Land Code 1965 ("the NLC");

b) A declaration that there was a cause to the contrary where D1 has failed and/or omitted to take into consideration before obtaining the OFS;

c) A declaration that D1 has failed to carry out its obligation to fulfil the agreement made to the Plaintiff;

d) An order that D1 has to indemnify and/or bare the loss on behalf of Etiqa Insurance whom has failed to grant to the Plaintiffs mother, a third party chargor, who is a handicapped, her rights and interest under the MRTA policy;

e) An order that the Defendants to pay exemplary damages to the Plaintiff;

f) An order that the Defendants to pay compensation to the Plaintiff.

B. Plaintiff's Submission

[7] The Plaintiff averred that the title obtained by D2 is a defeasible title. D2 is not a bona fide purchaser, according to the Plaintiff. He referred to s 340(2)(c) of the NLC and the case of Chan Boi Loi v. Lublic Bank Bhd & Anor Application, 2009 MarsdenLR 2229 to support this contention.

[8] The Plaintiff further alleged that there was an 'arrangement' between D1 and the Plaintiff. The essence of the 'arrangement' was that D1 agreed to cancel the POS dated 26 October 2017 should the Plaintiff paid the amount of RM 1,000.00 per month to settle the arrears.

[9] The Plaintiff later submitted that the parties' right and interest over the Property is yet to be adjudicated by this Court. He cited the case of M&J Frozen Food Sdn Bhd v. Siland Sdn Bhd, 1993 MarsdenLR 1782 .

[10] The Plaintiff argued that there are several issues to be dealt with and to be disposed by this Court, amongst other, the validity of the OFS since there was an arrangement and/or deal made between D1 and the Plaintiff. The Plaintiff relied on J Raju v. Kwong Yik Bank Bhd & Anor, 1994 MarsdenLR 2009 as the authority on this.

C. D1's Submission

[11] D1 in its submission averred that the OFS dated 2 November 2015 issued by the GLA was valid and in accordance with s 263 of the NLC. The OFS, according to D1, has only been granted after the GLA was satisfied with the investigations held and after assuring that there was no cause to the contrary pointed out by the Plaintiff.

[12] D1 referred this Court to s 263 of the NLC and the case of Low Lee Lian v. Ban Hin Lee Bank Bhd , 1997 MarsdenLR 1554 which highlighted 3 categorie