The respondent is not legally obligated to deliver the title deed or refund the deposit if the applicant breaches auction sale conditions.

Introduction

[1] The Applicant filed an Originating Summons dated 27 October 2022 ("OS") which sought for the following reliefs;

(i) that the Respondent be ordered to deliver to the Applicant the original copy of a separate individual issue document of title ("Title Deed") for the property known as Blok Akasia 15-8, Lengkok Kelicap, MK 12, Mutiara Perdana, 11900 Pulau Pinang which is currently held under the title GRN 70312, Lot No 11922, Mukim 12, South West District, Pulau Pinang ("Property");

(ii) that the Applicant be given an extension of time of 3 months from the receipt of the Title Deed to pay the balance of the auction price for the Property; and

(iii) alternatively, if the Respondent is unable or fails to deliver the Title Deed to the Applicant within 1 month from the date of this Order, that the Respondent be ordered to return the deposit of RM14,400 to the Applicant.

[2] On 15 February 2023, I dismissed the OS. Here are the grounds of my decision.

Background Facts

[3] The Respondent entered into a Loan Agreement cum Assignment dated 15 October 1997 ("Loan Agreement cum Assignment") with the assignor / borrower namely one Zaffarudin bin S S Mydin Pitchay ("Borrower") to finance the purchase of the Property. The Borrower failed to comply with the terms and conditions of the Loan Agreement cum Assignment.

[4] Consequently, the Respondent exercised its rights under the Loan Agreement cum Assignment to sell the Property. Through a Proclamation of Sale for an auction sale fixed on 14 June 2022 ("Proclamation of Sale"), the Respondent auctioned the Property on 14 June 2022.

[5] The Property was successfully bidded for and purchased by the Applicant on the day of the auction sale. A deposit amounting to RM14,400 ("Deposit") was paid by the Applicant to the Respondent on 14 June 2022. The balance purchase price of RM120,600 ("Balance Purchase Price") is to be paid by the Applicant within 90 days from the auction date ie on or before 12 September 2022.

[6] The Applicant appointed a firm of solicitors ("Applicant Loan Solicitors") as his solicitors to handle the loan documentation and the transfer of the Property. Via a letter dated 5 August 2022 from the Applicant

Loan Solicitors to the Respondent's solicitors, the Applicant requested an extension of time of 45 days to pay the Balance Purchase Price. This was on the grounds that the Applicant was unable to contact the developer of the Property ie PPH Resorts (Penang) Sdn Bhd ("Developer") and the management body of the Property ie Perbadanan Pengurusan Mutiara Perdana Blok Asoka & Akasia ("Management Body").

[7] By way of a letter dated 14 September 2022, the Respondent agreed to the Applicant's request and allowed an extension of time of 45 days from 13 September 2022 to 27 October 2022. This was subject to a late payment charge amounting to RM1,236 ("Late Payment Charge"). The Late Payment Charge is be paid by the Applicant to the Respondent on or before 30 September 2022, as a condition for the Respondent giving to the Applicant the requested extended time to settle the Balance Purchase Price.

The Applicant's Case

[8] The Applicant claims that the Balance Purchase Price will be paid through a banking facility that she has secured from Ambank Islamic Bhd ("Financier") via a letter of offer dated 1 August 2022.

[9] As security for the said banking facility, the Financier requested the following security, ie a charge over the Property,:

"iv. Upon issuance of Individual / Strata Title, an Open All Monies First Party Legal Charge under the National Land Code 1965