JUDGMENT

Low Hop Bing J:

Application

This is the plaintiff's application in encl. (3) for an order that the private caveat entered by the defendant vide presentation No. 26/1999, Jilid 36, Folio 61 dated 23 February 1999 ("the private caveat") on the plaintiffs land held under GM 65, P.T. No. 616, mukim of Rasah, district of Seremban, ("the land") be removed under s 327(1) of the National Land Code 1965 and for damages to be assessed.

For brevity and convenience, a reference to any section is a reference to that section in the National Land Code 1965 unless the context otherwise requires.

Factual Background

The plaintiff was, prior to his being adjudicated as a bankrupt, the registered owner of the land.

On 15 December 1976, the plaintiff and the defendant entered into a sale and purchase agreement ("the agreement") to buy 3450 sq. ft. of the land at a consideration of RM1,850 ("the amount") which has been duly paid by the defendant to the plaintiff.

The plaintiff was adjudicated as a bankrupt on 8 October 1984, whereupon the defendant filed the proof of debt for the amount.

On 23 January 1999, the plaintiff took steps to discharge himself as a bankrupt by settling all the debts including the amount but this was not accepted by the defendant on the ground that it was insufficient.

On 12 November 1998, the Official Assignee (now known as the Director General of Insolvency pursuant to s 2 of the Bankruptcy (Amendment) Act 2003 (Act A197) with effect from 1 October 2003) ("DG of Insolvency") made a discharge order in favour of the plaintiff.

The defendant entered the private caveat on 23 February 1999 and filed High Court Seremban civil suit No. 22-187-2003 ("the civil suit") for, inter alia , specific performance against the plaintiff in October 2003.

The land is presently in the name of the DG of Insolvency and not in the plaintiff's name.

Submission For Plaintiff

Anthony Joseph Param, learned counsel for the plaintiff, submitted that under s. 327(1) any person aggrieved by the existence of a private caveat may apply for its removal. Support for this contention was sought in Wu Shu Chen & Anor v. Raja Zainal Abidin Raja Hussin, [1997] 2 MLJ 487 .

He added that the defendant must prove that he has a caveatable interest under s. 323, and that by filing proof of debt, the defendant has elected to make a monetary claim and not in relation to the land, as a result of which, upon the settlement of the amount by the plaintiff to the defendant, the defendant ceased to have caveatable interest, since the defendant could not approbate and reprobate, relying on PB Securities Sdn Bhd v. Autoways Holdings Bhd, [2000] 4 MLJ 417 ; Sabah Finance Berhad v. Addspeed Enterprises Sdn Bhd & Ors; [1995] 4 CLJ 645 ; United Malayan Banking Berhad lwn. Chew Chee Sun; [1996] 3 CLJ 533.

It was stressed that the defendant's monetary claim could give rise to no caveatable interest, on the basis of Kundang Lakes Country Club Bhd v. Garden Masters (M) Sdn Bhd, [1999] 2 MLJ 537 .

Further, he said that the claim was barred by s 9 of the Limitation Act 1953 , deriving support from Wu Shu Chen , supra , and that the plaintiff having accepted the amount did not become a bare trustee for the defendant. Borneo Housing Mortgage Finance Bhd v. Time Engineering Bhd, [1996] 2 MLJ 12 ; Temenggong Securities Ltd & Anor v. Registrar of Titles, Johore & Ors ; [1974] 2 MLJ 45 were cited in support.

It was also argued that the defendant must show that on a balance of convenience, the private caveat should remain until final disposal of the civil suit, and that there was delay on the part of the defendant in filing the writ for, inter alia, specific performance against the plaintiff in October 2003, when the caveat was entered by him on 23 February 1999. Registrar of Titles, Johore v. Temenggong Securities Ltd , [1976] 2 MLJ 44; Eng Mee Yong & Ors v. V Letchumanan ; [1979] 2 MLJ 212; and Jasalam (M) Sdn Bhd v. Wong Koon Yee; [2000] 3 MLJ 115; [2000] 2 CLJ 377; [2000] 2 AMR 1811 were relie