Low Hop Bing J:

Application

These two applications are by consent of the parties herein heard together.

Parties herein have raised an important, interesting and novel question of law to be considered and addressed by this court, in the course of hearing the plaintiff's application on 23 January 2003 by way of a charge action for an order for sale to recover a sum of RM5,289,021.42 which is inclusive of all interest until that date, under ss. 256and 257 of the National Land Code 1965("s. 256 and s. 257") and O. 83 r. 3(3), (6) and (7) of the Rules of the High Court 1980("O. 83 r. 3(3), (6) and (7)").

As an alternative, the plaintiff claimed a sum of RM4,803,362.60 being the debt due from the defendant in OS No. 24-546-99, with interest until the making of the receiving order against the defendant on 4 October 2001.

Both the aforesaid sums were stated in the plaintiff's affidavit.

Objection To Interest

At the hearing of this charge action, the defendant, against whom the said receiving order was made on 4 October 2001 videJohor Bahru High Court No. 3635-1999, did not raise any objection to the making of an order for sale but instead resisted that the plaintiff as a secured creditor shall not be entitled to any interest in respect of the debt after the making of the said receiving order as the plaintiff has not realized the security within six months thereof ie, on or before 4 April 2002. The defendant relied on s. 8(2A) of the Bankruptcy Act 1967("s. 8(2A)").

Question For Determination

This may be formulated as follows:

Upon a proper construction of s. 8(2A), in realizing the security in this charge action, is the plaintiff entitled to RM5,212,816.01 inclusive of all interest as at 23 January 2003 or RM4,803,362.60 inclusive of interest until the making of the said receiving order on 4 October 2001?

Counsel's Submission And Decision By Court

Particulars Under s. 257

En. Mohd Hanafiah bin Kechik, the assistant official assignee who under s. 8(1) of the Bankruptcy Act 1967("s. 8(1)") has been constituted the receiver of the property of the debtor ie, the defendant herein, submitted that under s. 8(2A), the plaintiff is only entitled to the total amount of RM4,803,362.60.

Cik Anis Idura Hashim, learned counsel for the plaintiff, submitted that it is mandatory for the plaintiff to provide all the particulars under s. 257(1)(a) to (d).

At this juncture, it must be emphasised immediately that the dispute does not revolve around the question whether or not the plaintiff must provide the particulars under s. 257(1)(a) to (d), as it is trite law that these particulars must be provided in the affidavit under the mandatory provisions of s. 257(1)(c): Maimunah bte Megat Montak v. Mayban Finance Bhd[1996] 3 CLJ 9FC; Multi-Purpose Bank Bhd v. Diamond Agreement Sdn Bhd & Anor[2000] 2 CLJ 73HC; Citibank NA v. Ibrahim Othman[1993] ; [1994] 1 AMR 369 HC; and O. 83 r. 3(3), (6) and (7).

Interest After Receiving Order

In respect of s. 8(2A), it was submitted for the plaintiff that a secured creditor who is not proving his debt in the bankruptcy of the chargor is entitled to the full amount of his debt with interest and costs, relying on Chinese Tin Mines Rehabilitation Loans Boards v. Official Assignee FM[1956] ; [1957] 23 MLJ 65 HC; Malayan Banking Bhd v. The Official Assignee (Receivers of the estate of Velu Marimuthu (Bankrupt))[1993] ; [1993] 2 AMR 28 HC; and United Asian Bank Bhd v. A Subramaniam (Personal representative of Roshammah (decd))& Ors [1994] 3 CLJ 681HC.

A careful analysis of these authorities cited for the plaintiff is necessary in order to ascertain the extent of the support that may be derived therefrom.

In Chinese Tin Mines, supra, the relevant provisions which came up for cosideration were s. 9(i) and (ii) of the then Bankruptcy Enactment which have now been re-enacted in s. 8(1) and (2), the relevant portions of which are reproduced as follows:

8. Effect of receiving order

(1) On the making of a receiving order ...,