Abu Mansor Ali JCA:

This is an appeal against the decision of the High Court Kuala Lumpur on 14 April 1995 giving leave to the respondent to sell by public auction the land charged by the appellant to the respondent. We heard arguments on 21 August 1996 at the end of which we dismissed the appeal with costs.

The simple facts of the case were as follows. The appellant was the defendant (hereinafter called 'the defendant') and the respondent was the plaintiff (hereinafter called 'the plaintiff'). The defendant who was the registered owner of land held under Grant 9994 Lot 1167 Section 41, District of Kuala Lumpur (hereinafter called 'the said land') had charged the said land to the plaintiff by way of security for the repayment of a banking facility granted to the defendant. When the defendant failed to settle the amount owing, the plaintiff issued Borang 16D dated 7 September 1993 under s. 254 of the National Land Code 1965 (hereinafter called 'the Code') in order to have the land sold to realise the debt.

The defendant failed to settle the debt. Thereafter the plaintiff applied for foreclosure under s. 254 of the Code. Inspite of the defendant's objection, the learned Judicial Commissioner granted the order for sale. Hence, this appeal by the defendant.

Shortly, the main point of the defendant's appeal turned on the proper implementation of the "conclusive evidence clause". The defendant contended that the Court ought not to have adjudicated basing itself on the conclusive evidence clause by reason of the fact, they say, that the guarantor was protesting that they had no knowledge of the details of the account. In doing so the Court had acted in error.

At p. 53 of the Appeal Record, the learned Judicial Commissioner held:

Berhubung dengan isu pertama ini saya memutuskan Mahkamah ini terikat dengan kehakiman Mahkamah Agung dalam kes Kandiah . Saya juga memutuskan Fasal 14 membolehkan plaintif mengeluarkan penyata berhubung dengan jumlah yang terhutang dan plaintif dilepas dari beban untuk membuktikan keterhutangan itu.

Mahkamah ini perlu menerima kenyataan keterhutangan yang telah dikeluarkan oleh plaintif sebagai konklusif dan tidak menjadi tanggungjawab Mahkamah ini untuk mengesah ketepatan jumlah tersebut.

Roughly translated: thus,

Having regard to the first issue, I rule that this Court is bound by the judgment of the Supreme Court in the case of Kandiah. I also rule that cl. 14 enables the plaintiff to issue a statement relating to the amount due and the plaintiff is

relieved of the burden of proving the debt owing.

This Court shall accept the amount of the debt owing issued by the plaintiff as conclusive and it shall not be the duty of this Court to ascertain the accuracy of the said amount.

The learned Judicial Commissioner followed the principle laid down in Kandiah's case by which the Judicial Commissioner, following the principle judicial precedents, was bound. In the case of Kandiah Peter a/l Kandiah v. Public Bank Berhad [1993] 4 CLJ 332 ; [1993] 2 AMR 49 3464 Mohd. Eusoff Chin, SCJ held very clearly as follows:

A chargee who makes an application for an order for sale in foreclosure proceedings under s. 256 of the Code does not commence an action. He merely enforces his rights as a chargee by exercising his statutory remedy against the chargor in default. The chargee, therefore, does not sue for a debt. It is also clear that his claim for an order for sale is not based upon a covenant but under the registered charge. The order for sale when made under s. 256 of the Code is not a judgment or a decree. The Court hearing the application for foreclosure does not make, and in any event ought not to make, any adjudication upon any substantive issue.

These principles are culled from several decisions of our Courts which have correctly stated the law upon the subject.

Mr. Low Kim Leng for the plaintiff submitted that the appellate Court, in considering the defendant's submission, had to start with the