This is an application by Citibank NA ('Citibank') for an order that the defendant's land ('the said land') be sold by public auction.

The defendant claims that Citibank has not complied with O 83 r 3 of the Rules of the High Court 1980 ('the RHC').

The said land was charged to Citibank on 4 April 1990 ('the said charge') as security for the repayment to Citibank of all moneys and liabilities owing to Citibank by the defendant and his brother, Ahmad bin Othman, who were jointly referred to in the said charge as 'the Customer'.

Clause 2 of the annexure to the said charge reads in material particular as follows:

The chargor will pay to the chargee on demand all moneys … now or hereafter owing …together with …interest on all such debts … at the rate of 1.25%pa above the bank's base lending rate or 8.25%pa, whichever is higher with daily rests as well after as before the date of any demand to the date of actual repayment.

Clause 22 reads:

The total amount recoverable under this charge shall not exceed the sum of RM224,000 only … for principal with in addition thereto all interest accrued due. Provided that such limitation shall not in any way affect or prejudice any right of the chargee independently of this charge to recover the total sum owing on any such account or in manner aforesaid over and above such limit. For the purposes of ascertaining the total of the principal sum owing all accumulated and capitalized interest shall be deemed to be interest and not principal sum.

On 30 April 1992, Citibank's solicitors gave the defendant and Ahmad bin Othman written notice of default and required the repayment of RM239,659.22 outstanding as at 31 March 1992 together with interest on the sum of RM233,264.37 at the rate of 14%pa from 1 April 1992 till the date of final payment.

The letter was not complied with. On 27 May 1992, Citibank's solicitors served the defendant with the statutory notice in Form 16D of the National Land Code 1965 ('the NLC').

This originating summons was filed on 22 July 1992. The affidavit-in-support deposed to by Citibank's assistant manager on 16 July 1992 is referred to hereafter as 'the first affidavit'.

A close reference to O 83 of the RHC will be useful if the issues here are to be clearly understood.

Where O 83 r 3(3) applies, the affidavit must show the state of the account between the chargor and chargee with particulars of the amount of the advance, the repayments, the interest in arrears at the date of the issue of the originating summons and at the date of the affidavit and the amount remaining due under the charge. This rule applies where the plaintiff claims delivery of possession. The particulars (aforesaid) are hereafter referred to as 'the statutory particulars'.

Order 83 r 3(6) provides that where the plaintiff claims payment of moneys secured by the charge, the affidavit must prove that the money is due and payable and give the particulars mentioned in O 83 r 3(3). And by para (7) if interest is claimed on the judgment, the affidavit must state the amount of a day's interest.

From O 83 r 3(1), it would appear that 'the affidavit' referred to in the sub-rules to O 83 r 3 is the affidavit-in-support of the originating summons.

The first affidavit of Citibank did not state:

(a) the correct amount of the advance;

(b) the amount of the repayment;

(c) the interest in arrears at the date of the issue of the originating summons (ie 22 July 1992) or the date of the first affidavit (ie 16 July 1992).

For the first hearing fixed on 20 January 1993, Citibank's assistant manager filed a second affidavit dated 15 December 1992 (encl 5). In this, he stated that the amount of the advance was RM233,264.37, that interest accruing due up to 20 January 1993 was RM23,451.63 and the total debt on that day was RM256,716 with interest at 14%pa. Daily interest was said to be RM89.47 till capitalization on 31 December 1993.

In response, the defendant filed an affidavit in which he challenged the amoun