Mohd. Hishamudin Mohd. Yunus J:

This is a charge action by the plaintiff/chargee against the defendants/chargors pursuant to s.256 of the National Land Code and O.83 of the Rules of the High Court.

Section 256 reads:

Application to Court for order for sale

256. (1) This section applies to land held under -

(a) Registry title;

(b) the form of qualified title corresponding to Registry title; or

(c) subsidiary title,

and to the whole of any undivided share in, or any lease of, any such land.

(2) Any application for an order for sale under this Chapter by a chargee of any such land or lease shall be made to the Court in accordance with the provisions in that behalf of any law for the time being in force relating to civil procedure.

(3) On any such application, the Court shall order the sale of the land or lease to which the charge relates unless it is satisfied of the existence of cause to the contrary.

Order83 r.1 states:

Application and interpretation. (O.83, r.1)

1. (1) This Order applies to any action (whether begun by writ or originating summons) by a chargee or chargor or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs namely -

(a) payment of money secured by the charge;

(b) sale of the charged property;

(c) foreclosure;

(d) delivery of possession (whether before or after foreclosure or without foreclosure) to the chargee by the chargor or by any other person who is or is alleged to be in possession of the property;

(e) redemption;

(f) reconveyance of the property or its release from the security;

(g) delivery of possession by the chargee.

(2) In this Order "charge" includes a legal and an equitable charge.

(3) An action to which this Order applies is referred to in this Order as a charge action.

(4) These rules apply to charge actions subject to the following provisions by this Order.

By prayer 1 of the originating summons, the plaintiff applies for an order that the land charged be sold by the Court by public auction. The prayer reads:

1. Bahawa harta yang terkandung di SPB44577 Lot No.1573 Mukim Kota Setar, Daerah Kota Setar, Kedah di dalam Perserahan No.10,969/92 Jil. 510 Fol. 39 dijual secara lelongan awam pada satu tarikh yang akan ditetapkan oleh Penolong Kanan Kanan Pendaftar di mana tarikh itu tidak kurang dari satu (1) bulan selepas tarikh perintah dibuat.

By prayer 2, the plaintiff applies for an order that the defendants pay the plaintiff the outstanding amount secured by the charge together with interest. The prayer reads:

2. Bahawa defendan hendaklah membayar amaun sebanyak RM48,766.52 setakat 28 February 1994 beserta dengan faedah pada kadar 2% setahun melebihi kadar Asas Berian Pinjaman (Kadar Asas 8.5%) dan faedah tambahan yang dikenakan atas jumlah yang di tuntut adalah pada kadar 1% melebihi kadar faedah setahun dan dikira tiap-tiap hari mulai 1 March 1994 sehingga penyelesaian kepada plaintif di bawah Gadaian tersebut.

The plaintiff, in their first supporting affidavit (Encl.2), stated that the amount of the loan was RM60,000 and that the amount they were claiming under the originating summons, as of the time of filing, was RM48,766.52. But it is pertinent to note that the affidavit did not furnish further particulars of the account. In particular, nothing was stated as to:

(a) the amount of the repayments (if any) made by the defendants/borrowers; or

(b) the amount of any interest or installments in arrear at the date of issue of the originating summons and at the date of the affidavit (28 May 1994).

Also, the affidavit did not explain how the amount RM48,766.52, which the plaintiff alleged as still owing, was arrived at.

Subsequently, however, the plaintiff, filed two more affidavits, Encls.12 and 16, to provide the updated information on the account. Enclosure 12 was filed on 29 August 1994 and Encl. 16 was filed on 1 October 1995. These affidavits, however, like Encl. 2, only state the amount of inter