Low Hop Bing J:

Application

This is an application by the plaintiff for an order for sale to enforce a charge under s. 256 of the National Land Code. The facts of the case are simple and straightforward. The first defendant has obtained from the plaintiff a term loan of RM253,600. Both the defendants were the registered proprietors of the land which was duly charged to the plaintiff by way of security for the said term loan. The charge was accordingly registered in the relevant land office. Consequent upon repeated defaults in the repayment of the said term loan, the plaintiff commenced the instant charge action against the defendants. For the purposes of this judgment a reference to an Order and a rule is a reference to that order and rule in the Rules of the High Court 1980.

Submission For The Defendants

Encik G. Ganesan, learned counsel for the defendants, raised several preliminary objections to the charge action before dwelling upon the merits of the case.

His preliminary objections were based on the following grounds:

1. The plaintiff's affidavit in encl. (2) in support of the originating summons in encl. (1) "does not contain jurat as required according to O. 41 r. 1(8) ie, Form 78";

2. The deponent did not give his place of residence but the address of his place of work in encl. (2) contrary to O. 41 r. 1(4);

3. The endorsement in encl. (2) does not comply with O. 41 r. 9(2);

4. Enclosure (2) was affirmed before the originating summons in encl. (1) was filed; and

5. The plaintiff's affidavit tambahan 4 was filed after the time required and so has breached O. 32 r. 13(2)(b).

On the merits of the plaintiff's charge action, defendants' learned counsel argued that both the defendants have given powers of attorney registered under No. 21792/97 and 21793/97 at the Kuala Lumpur High Court to one Hor Sai Yow on 25 March 1997 pursuant to a sale and purchase agreement of the same date, wherein Hor Sai Yow as donee is to defend the defendants in all legal proceedings. These powers of attorney were still subsisting on the date of filing this charge action ie, on 10 August 1998. This charge action against the defendants is, in his view, not valid.

The next point which defendants' learned counsel canvassed was that the plaintiff has varied the interest without basis in that the interest charged for the loan by the plaintiff differs from what was mentioned in the letter of offer and that the interest rate mentioned in the letter of demand, Form 16D and that in the originating summons in encl. (1) also differ.

Plaintiff's Response

In respect of the various issues raised by the defendants' learned counsel by way of preliminary objections Cik Suhanya Krishnan, learned counsel for the plaintiff, responded as follows:

1. Plaintiff's supporting affidavit in encl. (2) does not contravene O. 41 r. 1(8) and Form 78;

2. The deponent's place of residence in encl. (2) has been included in the plaintiff's further affidavit 4 (affidavit tambahan 4) affirmed by one Lip Chun Mei on 6 October 2000;

3. There was proper indorsement in the plaintiff's affidavit in encl. (2);

4. Plaintiff's affidavit in encl. (2) is regular and admissible; and

5. There is no delay on the part of the plaintiff in filing and serving the plaintiff's further affidavit 4 (afidavit tambahan 4), as O. 32 r. 13(2)(b) which applies to summons in Form 62, does not apply to a charge action here.

On the merits of this originating summons, the plaintiff's learned counsel vigorously objected to the inclusion of annexures to the defendants' written submission but which were not in the defendants' affidavits. It was further submitted that neither the execution of the powers of attorney nor the variation of interest could constitute a cause to the contrary. The plaintiff therefore prays for an order for sale.

Decision Of The Court

Preliminary Objections

Although defendants' learned counsel submitted at great length on the requirement of a jurat pursuant to O. 41 r. 1(8) and Form