JUDGMENT

Clement Skinner J:

[1] This is the hearing of an application by the plaintiff for the removal of a caveat lodged by the defendant over land known as Lot 251, Block 8, Awik-Krian Land District ('the said land'). The defendant is the registered proprietor of the said land. The facts leading up to this application are these.

[2] On 16 July 2001, the plaintiff and the defendant entered into a loan agreement wherein the plaintiff granted the defendant a loan of RM17,700 ('the said loan') which was to be repaid in full by the defendant on or before 16 January 2002 failing which the defendant would transfer all his rights, title and share in the said land to the plaintiff. The defendant also executed a memorandum of transfer in favour of the plaintiff but left it undated. The plaintiff alleges that the memorandum of transfer was so executed and handed over to him so that in the event the defendant should fail to repay the said loan on or before 16 January 2002, the said land would be transferred to him. The plaintiff further alleges that the defendant handed over the document of title to the said land as well as the quit rent booklet in respect thereof to a firm of advocates acting for him to enable the said land to be transferred to him if the defendant failed to repay the said loan by the due date.

[3] The defendant, however, gives a different explanation as to why the loan agreement was entered into and the memorandum of transfer executed in favour of the plaintiff. He maintains that his son borrowed a sum of RM15,000 from the plaintiff who charged interest thereon at 36%pa on the said sum totalling RM2,700 for a six-month period. As security for the full loan of RM15,000 and interest of RM2,700, the plaintiff requested the defendant to enter into the said loan agreement on 16 July 2001 and to execute the memorandum of transfer, which he did. The defendant maintains that he had no intention of selling his land to the plaintiff or to allow the plaintiff to effect a transfer of the said land outright for a mere sum of RM17,000 as the value of the said land is over RM100,000.

[4] As matters transpired, the defendant did not repay the said loan on its due date. The plaintiff therefore claims to be entitled to a transfer of the said land and took steps to effect a transfer of the same to his name but the land registry rejected the transfer as the defendant had on 4 April 2002, lodged a caveat against the said land. Hence this application to remove the defendant's caveat.

[5] In seeking a removal of the defendant's caveat, the plaintiff relies on several grounds. They are:

(a) the defendant does not have a caveatable interest in the said land, in that, he is already the registered proprietor thereof and so cannot bring himself within the provisions of s 173 of the Sarawak Land Code which states:

Any person -

(a) claiming to be entitled to or to be beneficially interested in any land, estate or interest under this Code by virtue of any unregistered agreement or other instrument or transmission, or of any trust express or implied or otherwise howsoever;

(b) who is a guardian of the property of an infant beneficially interested in any land or any estate or interest therein; or

(c) transferring any estate or interest under this Code to any other person to be held in trust, may at any time lodge with the Registrar a caveat in Form O in the First Schedule.

(b) even if it can be said that the defendant has a caveatable interest in the said land, his claim to such interest does not raise any serious question to be tried as the defendant's complaints about the loan agreement being illegal and void as a money lending transaction are baseless and an after-thought;

(c) the balance of convenience does not lie in favour of allowing the caveat to remain against the said land until the trial of the defendant's claim.

[6] The defendant on the other hand seeks to resist the plaintiff's application to remove his caveat on the following grounds:

(a) the plaintif