Abdul Malik Ishak J:

The prayers sought for by the plaintiff in encl. (1)

The plaintiff sought for the following prayers:

(1) A Declaration against the 1st and 2nd Defendants that the Plaintiff is entitled to the said Charges over the said 1019 Properties as listed in Enclosure 1 to this Summons in Form 16A perfected together with the annexure thereto with terms to secure and ensure payment of the Term Loan Facility of RM20.0 million and the "Bridging Loan" Facility for the sum of RM50 million granted by the Plaintiff to the second Defendant as provided in the Letter of Offer dated 10.12.1996 and the Facility Agreement dated 16.4.1997 (`the said Charges');

(2) A specific performance order against the 1st Defendant as the registered owner of the said 1019 properties as listed in Enclosure 1 to the summons to execute and perfect all relevant documentation and the said Charges on each and everyone of the 1019 issue document of titles in a registrable form and to be registered by the Registrar of Titles for Johore;

(3) And in the event that the 1st Defendant fails, defaults and/or refuse to comply with the order in paragraph 2 above within 7 days from the Order in terms granted in terms herein, then the Plaintiff is entitled to execute and use its powers under the Deed of Assignment with Power of Attorney dated 16.4.1997 executed between the Plaintiff and the 2nd Defendant and also pursuant to the Power of Attorney dated 15.8.1996 executed between the 1st and 2nd Defendants to execute and perfect the relevant documents and the said Charges over each and every one of the 1019 issue document (of) titles in a registrable form and accepted by the Registrar of Titles of Johore;

(4) That the 2nd Defendant pays and is liable for all expenses including but not limited to legal fees, costs, duties, quit rents and assessments, all expenses to the Land Office and related stamp duty in respect of the execution and the registration of said Charges pursuant to the Letter of Undertaking dated 9.4.1997;

(5) Alternatively, a declaration in the event that the registration of the said Charges as per paragraphs 1 and 3 above cannot be executed and/or not registered in the Plaintiff's favour by the Registrar of Titles for Johore for whatsoever reason then the 1st Defendant is liable and is obligated to refund the RM20.0 million together with interest on a rate and for a period of time that the Court deems fit to the Plaintiff based on the Letter of Undertaking dated 9.4.1997;

(6) A declaration that the Plaintiff does not bear any burden, duties, obligations and/or any liabilities towards the 1st Defendant under the Profit Sharing Agreement dated 15.8.1996;

(7) Costs; and

(8) All directions or further reliefs which this Honourable Court deems just and expedient.

Both The Defendants Were Issued With The Necessary Notice To Enter An Appearance And That Notice Was Worded As Follows:

To:

1. Johore Mining And Stevedoring Company Sdn Bhd

(No. Sykt: 004095-M)

Suite 23.01, Level 23

Public Bank Tower

No. 19 Jalan Wong Ah Fook

80000 Johor Bahru

2. Pintas Mewah Sdn Bhd

(No. Sykt: 391116)

Tingkat 12, (Right Wing)

Menara Kemayan

No. 160 Jalan Ampang

50450 Kuala Lumpur

Let the abovenamed 1st Defendant within twelve (12) days and the abovenamed 2nd Defendant within eight (8) days after service of this summons on them, inclusive of the day of service, caused an appearance to be entered to this summons, which is issued on the application of (the) Plaintiff, Malaysia Building Society Berhad of Tingkat 11, Wisma MBSB, No. 48 Jalan Dungun, Damansara Heights, 50490 Kuala Lumpur.

It seemed that the second defendant has not entered an appearance and this prompted the plaintiff to seek the necessary prayers thereto.

Facts Of The Case

The first defendant owned a land at the district of Pantai Timur, Kota Tinggi held under mining certificate no: 1130 Lot No: 1229 and mining certificate no: 1131 Lot No: 1230, which was converted to mining lease 563 Lot 1229 and mining l