Abdul Malik Ishak J:

Summons In Chambers In encl. 8

[1] This is the plaintiff's application for leave to enter summary judgment against the defendants in this action for the following orders:

(i) that the defendants are to surrender vacant possession of the property held under title H.S. (D) 82855 (previously Q.T.(R) 15215) PT15162, Mukim of Kuala Lumpur, district of Kuala Lumpur, Federal Territory that is also known as No: 6, Lorong Bukit Pantai 4, Taman Bukit Pantai, 59100 Kuala Lumpur ("the said property") within fourteen (14) days from the date of the service of this order;

(ii) costs;

(iii) costs on a solicitor and client basis; and such

(iv) further relief that this Honourable Court deems just and proper.

The Grounds In Support Of encl. 8

[2] They may be stated as follows:

(a) the said property has been duly sold by the plaintiff to a third party pursuant to, inter alia, the powers accorded to the plaintiff as a chargee of the said property under the Pengurusan Danaharta Nasional Berhad Act 1998 ("the Act"); and

(b) that despite requests by the plaintiff to the defendants, the defendants or any of them have failed, refused and/or neglected to surrender vacant possession of the said property to the plaintiff.

In this judgment, the constitutionality of the Act is put in question and it is in this area that the defendants derive its strength.

The Salient Facts

[3] They may be summarized in this fashion:

(a) the plaintiff is a corporation incorporated under the Companies Act 1965 and vested with statutory rights and powers under the Act;

(b) the first defendant is the owner of the said property;

(c) the second defendant is collectively all those persons who are unknown and who occupy the said property whether lawfully or unlawfully (fortunately, the defendants revealed the identity of the occupants of the said property and they will be mentioned later);

(d) that Arab-Malaysian Bank Berhad ("AMBB") held a third party first fixed charge ("first legal charge") and a third party second fixed charge ("second legal charge") over the said property; and

(e) that the first legal charge was granted on 15 July 1995 as security for the repayment of an overdraft facility of RM3 million accorded to Lian Yit Engineering Sdn Bhd ("the borrower") by AMBB ("overdraft facility") while the second legal charge was granted on 21 May 1996 to secure an increase of the overdraft facility by the amount of RM1.5 million.

[4] On and from 29 December 1999, the plaintiff was vested with the rights, title and interest of AMBB under, inter alia, the overdraft facility and the first legal charge and the second legal charge. On 4 February 2004, pursuant to its powers under s. 57 of the Act, the plaintiff entered into a sale and purchase agreement with a person by the name of Kiron Chhotal Doshi ("the purchaser") for the sale of the said property to the purchaser. The defendants were duly informed of the said sale and were requested to deliver up vacant possession of the said property by a letter dated 6 February 2004 from the plaintiff's previous solicitors Messrs Sidek Teoh Wong & Dennis to the first defendant. The defendants did not comply with the said letter and as a result of which the plaintiff commenced this action for, inter alia, vacant possession of the said property. These are the facts emanating from the plaintiff's claim. I will allude, in due course, to the Counterclaim of the first defendant.

The Plaintiff's Claim Versus The First Defendant's Counterclaim

[5] The first defendant is seeking, inter alia, for a declaration that the sale and purchase agreement dated 4 February 2004 between the plaintiff and the purchaser is an agreement which is unlawful and void and ought to be set aside. And in the event that this court finds in favour of the first defendant and allows the said declaration which has been sought for by the first defendant, it is submitted that such a decision will have the effect of extinguishing as a whole all rights an