JUDGMENT

Siti Norma Yaakob J:

The plaintiff in this suit is the hirer of an excavator, bearing registration number WAE 6983 and the instant claim is for sums due on a hire purchase agreement dated 5 March 1984, particulars of which appear in para. 3 of the amended statement of claim. The 2nd defendant is sued as a guarantor pursuant to the letter of guarantee executed the same day as the hire purchase agreement wherein he undertook to make payment upon written demand of all sums due to the plaintiff under the hire purchase agreement and to indemnify the plaintiff against all loss, damage or expense which the plaintiff may sustain by reason of the 1st defendant's breach of the hire purchase agreement.

Before the Senior Assistant Registrar, the plaintiff's application for summary judgment under O. 14 was dismissed with costs and the proceedings before me was therefore an appeal against that order.

From the defendants' statement of defence and the 2nd defendant's affidavit in reply, the following issues were canvassed by them.

1. The plaintiff had failed to comply with ss. 16(1), (4) and (5) of the Hire Purchase Act 1967 (the Act).

2. The notice of intention to repossess under s. 16(3) of the Act was only issued after the excavator had been repossessed and as such the notice is ineffective.

3. The proceeds of sale was very much below the hire purchase price as well as the residual value of the excavator and as such the plaintiff had failed to mitigate their loss.

4. There was delay in filing the O. 14 application.

5. There was no proper demand made to the 2nd defendant.

As the equipment hired in this case is not one of those listed in the First Schedule to the Act, the Act is therefore not applicable to the facts of this case.

The plaintiff have also explained that they had issued notice of intention to repossess on the 1st defendant on 11 May 1984, informing the 1st defendant that they intend to retake possession of the excavator after the expiry of 7 days from service of the notice, unless the arrears of instalments are paid to them. However the excavator was only repossessed almost 2 years later, on 26 April 1986 and during that period it was stored at a repairer's shop called Tat Seng Excavator Repairer, where it remained until it was sold.

Following the repossession, the plaintiff sent a notice after repossession to the 1st defendant with a copy to the 2nd defendant, giving the 1st defendant 14 days after service, to either reinstate the agreement by paying all arrears of rental due and remedy the breaches for which the plaintiff would redeliver the excavator or finalise the agreement by paying the balance due under the agreement and costs of repossession.

There was no affidavit in reply refuting the plaintiff's explanation and as such the 1st defendant's objection to the legality and effect of the notice of intention to repossess must fail.

The excavator was sold on 29 May 1986, a month after it was repossessed on 26 April 1986, to the highest tendered at RM7,000 a price well below the hire purchase price and below the residual value of the excavator.

The affidavit evidence on this shows that the plaintiff had arranged for tenders to be made to sell the equipment but only 3 tenderers responded for which offers for RM5,400, RM5,900 RM7,000 were received. The plaintiff accepted the highest tender and under the circumstances of this case, I do not think the plaintiff can do any better bearing in mind that:

(1) the equipment was only repossessed on 26 April 1986, 2 years after the notice of intention to repossess had been sent. The affidavit evidence shows that it had been discarded by the 1st defendant since July 1984.

(2) photographs exhibited by the plaintiff show the condition of the excavator as being badly damaged and according to the plaintiff, non-operational.

(3) the 1st defendant did not surrender the registration card and the plaintiff had also failed to trace it.

As these facts are not disputed by the defendants and based on the affid