Court affirmed the validity of enforcement of a charge despite procedural challenges raised by the Defendant, citing compliance with statutory requirements.

[1] In this foreclosure proceedings, an Order for Sale was granted by this court on 31 July 2018 pursuant to s 256 of the National Land Code read with O 83 Rules of 2012 (RoC 2012) in respect of a legal charge created by the Defendant over a land held under No Hakmilik 1017, Lot 268, Presint 8, Bandar Putrajaya, Daerah Putrajaya, Negeri Wilayah Persekutuan Putrajaya (Charged Property). Aggrieved with the said order the Defendant appealed.

Background Facts

[2] Upon PFC Engineering Sdn Bhd.'s application the Plaintiff had, via Letter of Offer dated 12 July 2017 (Exhibit BIMB-1 of encl 2) granted to PFC Engineering Sdn Bhd (the Customer) a facility amounting to RM 68,000,000.00 (the Facility). Pursuant thereto the Plaintiff and the Defendant executed the Supplemental Tawarruq Facility Agreement dated 24 August 2017.

[3] As security for the Facility the Defendant, who is the registered proprietor of the Charged Property, executed in favour of the Plaintiff, a legal charge over the Charged Property which is a 2^ storey semi detached house bearing postal NO 27, Jalan P8A/1, Presint 8, Putrajaya. The charge was dully registered on 1 November 2017 under Bil. Perserahan NO 804/2017 (Charge).

[4] Pursuant to cls 2 and 3.2 of the Annexure to the Charge, the Defendant agrees that he shall duly pay the indebtedness and all other monies due and owing by the Customer to the Plaintiff under the terms of the Facility.

[5] The Customer defaulted in its payment due under the Facility. Pursuant to a winding up petition filed in Kuala Lumpur High court Companies Winding Up No: WA-28NCC-610-09/2017, the Customer was ordered to be wound up via order dated 5 January 2018.

[6] The Plaintiff in its capacity as the chargee issued and served, via its solicitors, on the Defendant a Notice of Default With Respect To A Charge (Form 16D) dated 12 February 2018 demanding the Defendant to pay, within 1 month from the date of the service of the said notice, the sum RM 129,549,212.86 being the sum due and payable under the Facility as at 7 February 2018. A notice on even date, namely, Notice Of Entry Into Possession By Going Into Occupation (Form 16K) was also issued on the Defendant. The Defendant failed to remedy the said breach within the stipulated time. Hence, the Plaintiff filed this originating summons to enforce the Charge.

Plaintiff's Submissions

[7] It is the Plaintiff's case that it has duly issued and served the statutory notice Form 16D dated 12 February 2018 in compliance with s 254(1) of the Code by:

(a) specifying the breach in question ie that the Defendant was indebted to the Plaintiff under the Facility for the amount as stated in the said notice;

(b) the Plaintiff required the Defendant to remedy the breach within one (1) month of the date on which the notice is served; and

(c) the Plaintiff warned the Defendant that, if the Form 16D is not complied with, the Plaintiff will take proceedings to obtain an order for sale.

[8] The initial Form 16D dated 9 February 2018 served on the Defendant had mistakenly stated the amount of the Facility obtained by the Customer as RM 68,000.00 when in actual fact the amount obtained by the Customer was RM 68,000,000.00. The Plaintiff had rectified the mistake by subsequently issuing another notice Form 16D dated 12 February 2018. The Plaintiff submits the mistake in Form 16D dated 9 February 2018 does not render the said notice invalid as the Defendant was not prejudiced or misled. Other than the clerical mistake on the amount of the Facility, there is no other mistake on the Form 16D. The amount demanded in Form 16D dated 9 February 2018 and Form 16D dated 12 February is the sam