A chargee is entitled to an order for sale under the National Land Code unless the chargor establishes cause to the contrary, which must be substantiated with evidence.

JUDGMENT

Quay Chew Soon J:

Introduction

[1] This is an originating summons dated 25 November 2022 ("OS") filed by the Plaintiff ("P") to obtain an order for sale against the Defendant ("D"). On 29 January 2024, I allowed the OS and granted an order for sale to P. Here are the grounds of my decision.

Background Facts

[2] Pursuant to a letter of offer dated 25 November 2019 ("letter of offer"), P granted a loan in the sum of RM16.5 million ("loan") to D. The loan was disbursed to D in three tranches, in accordance with the following money lending agreements entered into between P and D,:

(a) a money lending agreement dated 25 November 2019 for the amount of RM6.5 million ("Loan Agreement A");

(b) a money lending agreement dated 22 January 2020 for the amount of RM5 million ("Loan Agreement B"); and

(c) a money lending agreement dated 28 February 2020 for the amount of RM5 million ("Loan Agreement C");

(the Loan Agreement A, the Loan Agreement B and the Loan Agreement C are collectively referred to as the "loan agreements")

[3] As security for the loan, D created a charge dated 9 December 2019 over a piece of land ("land") in favour of P.

[4] D breached the terms and conditions of the loan agreements by failing to secure the timely repayment of the monthly instalments to P. Consequently, P issued notices of demand dated 13 November 2021 ("notices of demand") to D, giving 14 days notice to D to settle the outstanding sum due under the loan agreements. D failed to comply with the notices of demand.

[5] P then proceeded to issue notices of termination dated 21 December 2021 ("notices of termination"). The notices of termination served as a formal termination of the loan agreements. They demanded from D the full principal sum of the loan, together with interest and default interest. D failed to comply with the notices of termination.

[6] In compliance with the requirements under s 254 of the National Land Code (Revised 2020) ("NLC"), P, via its solicitors' letters dated 1 March 2022 ("notices of default"), issued the statutory notices in Form 16D with respect to the loan agreements to D. The notices of default demanded D to rectify the breach within one month from the date of service thereof.

[7] D never denied the receipt of the notices of demand, the notices of termination and the notices of default referred to above. D failed to remedy the breach. Subsequently, P initiated the present OS, seeking an order for sale of the land in accordance with s 256 of the NLC.

Issues Raised By The Defendant

[8] D raised the following allegations in its affidavit in reply affirmed on 6 December 2023 (Enclosure 10):

(a) P has failed to comply with the statutory requirements prescribed in s 254 of the NLC and O 83 of the Rules of 2012 ;

(b) D has received only RM4,905,841.40, instead of the agreed upon amount of RM6.5 million under the Loan Agreement A;

(c) the details stated in the notices of demand, the notices of termination, the notices of default and the statement of account are inaccurate and are not in compliance with the law;

(d) P has violated the regulations set forth in the Moneylenders (Control and Licensing) Regulations 2003 in preparing the Charge Annexure; and

(e) the loan agreements were not executed at the registered address of D (presumably, D means the registered address of P).

[9] I find that D has failed to substantiate these allegations with adequate explanation or proof. In contrast, P has presented evidence to refute the allegations made by D.

[10] Notably, P produced a letter of authorization dated 2 December 2019 that was executed by D ("letter of authorization"). The letter of authorization expressly authorised P to make certain deductions in accordance with D's instructions. This evidence shows that D is the one who authorised P to deduct the sum of RM1,594,158.60. Thus, D's allegation that he had received only RM4,905,841.40, instead of the agreed upon amount of RM6.5 million under the Loan Agreement A, is unfounded.

The Law Pertaining To An