This is an application for an order of sale under Section 184(2)(c) of the Sarawak Land Code (Cap. 81) in respect of a parcel of land known as Lot No. 5197, Section 64 Kuching Town Land District. The application is supported by three affidavits, viz,

(1) The affidavit of Hj. Julhi Bin Ahmad affirmed on 10th December, 1993;

(2) The affidavit of Tan King Sing affirmed on 29th March, 1993;

(3) and the affidavit of Jee Tsin Kih affirmed on 11th December, 1995.

The application is opposed by the defendant's affidavits dated 20th February, 1995 and 8th November, 1995. [2]

Brief facts of the case.

The defendant owned two parcels of land, namely, Lot 5197, Section 64, KTLD and Lot 468, Section 62, KTLD, which were charged at various times as collaterals to the plaintiff, for loans granted to Chia Kiat Enterprise (the Company). The defendant was a director of the company, and he stood as a guarantor to the said loans.

Lot 5197 was charged to the plaintiff, vide Memorandum of Charge No. L12163/80 dated 4th November, 1980 for a sum of RM170,000, which sum was varied to RM200,000 by virtue of Memorandum of Variation of Charge No. L5200/82 dated 18th June, 1982. Subsequent to this, Lot 468 was also charged to the plaintiff to secure a further sum of RM400,000, vide Memorandum of Charge No. 3605/85 dated 18th June, 1985. The defendant had defaulted, and the plaintiff sent a notice of demand to the defendant dated 4th August, 1992.

These facts are not in dispute.

The plaintiff stated that the defendant had failed to comply with the said notice of demand, and the plaintiff made this application pursuant to Section 148(2)(c) of the code. The court has a discretion whether to grant or not an order for sale see Kuching Plaza Sdn. Bhd. v. Bank Bumiputra Malaysia Bhd. & Another(1991) 3 MLJ 163. It is clear from the provision of Section 148(2)(c) that the court may make an order of sale if in the circumstances of the case it deems fit and just. In Citibank NA v. Jong Tze Khiok & Another(1993) 3 MLJ 449 the Supreme Court explained Section 148 of the code thus:

"Under Section 148(1), it is the default and not the demand for the payment under clause 1 of the charge that triggers off the right of the plaintiff to issue the notice in writing. Such notice is [3] not intended for the purpose of demanding payment of the amount due to the plaintiff but to notify the charger that the plaintiff would resort to Section 148(2)(c) for an order of sale of the charged land unless such default is remedied. Only, and only if, the charger fails to comply with the requirements of the notice, the plaintiff has the liberty to apply to the High Court for such order."

In the instant case, the notice had been served on the defendant and the defendant had failed to comply with it. As a matter of fact, the defendant had not shown any evidence to refute this and had tacitly accepted it.

However, in the affidavit in opposition, the defendant had raised several matters quite unrelated to the present application. The defendant alleged that the plaintiff had committed a breach of fiduciary duty in that the plaintiff owed to the defendant as a chargee in respect of Lot 468. The defendant averred that on 18th December, 1990 he had made an offer to the plaintiff to redeem both properties, i.e. Lot 5197 and Lot 468 for a sum of RM700,000 (Exhibit THC3), and the said offer was not accepted by the plaintiff. The refusal by the plaintiff was that the outstanding balance owing by the defendant at the material time was far exceeding the amount offered, i.e. RM850,986.34 as on 19th August, 1990 (Exhibit THC1). The offer was unreasonable and the plaintiff had within its right rejected it.

The defendant further alleged that he had made an offer through his lawyers to redeem Lot 468 for RM540.00 on 1st April, 1992 (Exhibit JTK1). The offer was duly accepted by the plaintiff (Exhibit JTK2). It, however, did not materialise for reasons unknown. The defendant now alleged that at the mate