Vernon Ong Lam Kiat JC:

[1] By a summons in chambers filed on 30 July 2007 (encl.. 4) the defendant seeks to set aside an order for sale dated 10 December 1998. In respect of this application the following affidavits were filed:

1. Defendant's affidavit affirmed on 21 June 2007 (encl. 5);

2. Plaintiff's affidavit in reply affirmed on 14 August 2007 (encl. 6);

3. Defendant's affidavit in reply affirmed on 28 August 2007 (encl. 7);

4. Plaintiff's affidavit in reply (2) affirmed on 11 September 2007 (encl. 8);

5. Defendant's further affidavit affirmed on 12 September 2007 (encl. 9);.

6. Defendant's affidavit in reply (2) affirmed on 20 September 2007 (encl. 10);

7. Plaintiff's affidavit in reply (3) affirmed on 26 September 2007 (encl. 11);

8. Plaintiff's affidavit in reply (4) affirmed on 5 October 2007 (encl. 12);.

9. Defendant's further affidavit affirmed on 7 November 2007 (encl. 13);.

10. Defendant's further affidavit (3) affirmed on 18 December 2007 (encl. 14); and

11. Plaintiff's affidavit in reply (5) affirmed on 7 January 2008 (encl. 15)..

Background Facts

[2] On 16 January 1989 the defendant created a third party charge over the land held under document of title HS (d) 46317 PTD No. 22712 Mukim Plentong ('the charged land') to the plaintiff as security for banking facilities granted by the plaintiff to Gan United Cannery Sdn. Bhd. ('the borrower'). The third party charge was registered on 17 January 1989. On 23 March 1994 a winding-up order was granted against the defendant. Meanwhile, the borrower defaulted in repayment of the banking facilities. On 31 November 1995 the plaintiff issued the statutory Form 16D Notice of Default by Chargor to the defendant. Subsequently by an originating summons dated 4 February 1998 the plaintiff applied for an order for sale of the charged land. The order for sale was made at the conclusion of an inter partes hearing on 10 December 1998. The defendant did not appeal against the said order for sale. On 2 January 2002 a private caveat was lodged over the charged land by one Mahanbir Singh Manmohan Singh, a contributory of the defendant company. Subsequently on 10 September 2004 the defendant filed an application to restrain the auction of the charged land which was fixed on 14 September 2004. On 13 September 2004 the High Court dismissed the defendant's application for the injunction. No appeal was lodged against the said order of dismissal. On 19 July 2007 the plaintiff's application for the removal of the private caveat was allowed with costs. On 30 July 2007 the defendant filed this application for the setting aside of the order for sale.

Preliminary Objection

[3] Learned counsel for the plaintiff argued that the defendant's application ought to be dismissed outright for being an abuse of process of court. Firstly, he submitted that the court is functus officio and has no power to hear the application. The order for sale had already been perfected and the defendant did not appeal against the same. Accordingly, it was argued that the defendant was attempting to re-litigate the plaintiff's application for the order for sale. In support thereof, learned counsel cited Hock Hua Bank Bhd v. Sahari bin Murid, MUI Bank Bhd v. Cheam Kim Yu [1992] 4 CLJ 2229; [1992] 1 CLJ (Rep) 222, Scotch Leasing Sdn. Bhd. v. Chee Pok Choy & Ors [1997] 2 CLJ 58 and Perwira Affin Bank Bhd. v. Tan Ah Tong [2003] 2 CLJ 320.

[4] Secondly, learned counsel submitted that the court has no power to set aside the said order for sale as it was made at the conclusion of an inter partes hearing. (see Chong Keat Realty Sdn. Bhd. v. Ban Hin Lee Bank Bhd [2003] 3 CLJ 532 and Low Lee Lian v. Ban Hin Lee Bank Bhd [1997] 2 CLJ 36.

[5] Thirdly, it was also submitted that the defendant is guilty of inordinate delay in filing the application. It has been more than ten years since the said order for sale was made and more than three years since the said order was served on the provisional liquidator of the defendant. No ex