In summary judgment applications, the defendant bears the burden to demonstrate a bona fide triable issue to deny judgment.

[1] This case concerns an application by the plaintiff for summary judgment against the defendants, as documented in encl 5. I allowed the same at the conclusion of the hearing. This judgment contains the full reasons for my decision.

Key Background Facts

[2] In pursuance of a letter of offer dated 13 July 2007 issued by Affin Bank Berhad ("the plaintiff") and duly accepted on 19 July 2007 by Tes Steel Products Sdn Bhd ("the first defendant"), the plaintiff granted to the first defendant, credit facilities which amounted in aggregate to RM700,000.00; comprising an overdraft facility with a limit of RM200,000.00 and letter of credit and trust receipt facilities for RM500,000.00.

[3] At the further request of the first defendant, a variation in the form of additional terms concerning the security arrangement governing the credit facilities had been effected by way of a Variation Letter dated 16 October 2007, and accepted by the first defendant on 29 October 2007. A Facilities Agreement was executed on 13 February 2009 to document the terms and conditions of the facilities granted to the first defendant. The pertinent terms for the purpose of this judgment will be set out at the appropriate juncture hereinafter.

[4] As part of the security arrangement under the Facilities Agreement, two third party legal charges were registered on 17 February 2009 and one other third party legal charge was registered on 19 February 2009. These three charges were in respect of three industrial plants situated at lands held under three separate documents of titles, respectively ("the Charged Properties"). The Charged Properties are registered in the name of one Kaharudin bin Mo Min, the third party chargor. In addition, the second, third, fourth and fifth defendants had each individually executed a joint and several guarantee for the repayment of the facilities under the Facilities Agreement ("the Guarantee").

[5] Given the failure of the first defendant to adhere to its repayment obligations under the overdraft facility, and keep its overdraft account regular in breach of the Facilities Agreement, the plaintiff issued a letter dated 15 January 2016 to all the defendants, recalling the overdraft facility, and demanding payment of RM736,971.82, being the outstanding amount as at 14 January 2016, together with interest thereon at 3.50% per annum plus BLR, within seven days. Absent any satisfaction by the defendants, the plaintiff, through its solicitors sent demand letters dated 4 April 2016 addressed to each and every one of the defendants, recalling the overdraft facility and demanding, within seven days, the payment to the plaintiff the outstanding amount of RM756,047.02 as at 31 March 2016; but this too went unheeded.

[6] As such, this then resulted in the filing of a writ action by the plaintiff and this instant application for summary judgment against the defendants.

Preliminary Objection

[7] The plaintiff had also raised a preliminary objection to the late filing and service of the affidavit in reply on behalf of the defendants which was only affirmed on 28 June 2016, where the final date of the requisite 14-day period under O 14 r 2(4) of the Rules of 2012 for the reply ought to have been on 20 June 2016 (given service of the application and supporting affidavit on 6 June 2016).

[8] Yet the affidavit in reply was only served on the solicitors for the plaintiff on 11 July 2016 vide a letter of the defendants' solicitors dated 30 June 2016. There was no leave of Court or agreement by the plaintiff to justify the delay of almost three weeks. The plaintiff now asks that the affidavit in reply be rejected and requested for judgment be entered on the authority of Ng Hee Thoong & Anor v. Public Bank Berhad, [1995] 1 MLJ 281 since the affidavit of the p