Ramly Ali J:

Enclosure 52 is an application by the defendant (dated 18 July 2001) to set aside an order dated 14 June 1999 for sale of the defendant's land which had been charged to the plaintiff. The application is supported by an affidavit of the defendant sworn on 18 July 2001. The ground of the application as submitted by his counsel is that the said order for sale dated 14 June 1999 is invalid as the counsel who was acting for the plaintiff in the foreclosure proceeding and finally obtained the said order, was the same counsel who had attested both the plaintiff's as well as the defendant's signatures in the relevant Form 16A of the National Land Code relating to the said charge. The defendant's counsel argued that there was an element of conflict of interest.

Factual Background Of The Case

The historical and factual background of the case is that on 1 April 1998, the plaintiff filed an originating summons (videOS No: 24-55-98) for an order for sale of the defendant's land held under H.S.(D) 1287, P.T. 2031, Mukim Kuala Lipis, Daerah Lipis, Pahang which had been charged to the plaintiff, for a loan facility granted by the plaintiff to the defendant. The said land was charged to the plaintiff vide"Gadaian bertarikh 22 September 1992, No. Perserahan 6518/92, Jilid: 305, Folio: 26" registered at the Land Office Registry. The defendant defaulted in repayment of the loan facility and accordingly on 17 November 1997 the plaintiff issued a notice to the defendant to make good the default. The defendant failed to comply with the said notice. On 16 February 1998, the plaintiff's counsel, Tetuan Tan Kong Hai & Tui, issued a notice together with Form 16D (NLC) demanding the defendant to settle the whole amount due as at 16 January 1998 for a sum of RM313,728, within 14 days from 16 February 1998 (ie, the date of the notice). Again the defendant failed to comply with the said notice (Form 16D). On 1 April 1998, the plaintiff through the same solicitors, filed an originating summons (encl. 4) for foreclosure proceedings.

The said originating summons (encl. 4) was duly served on the defendant on 18 June 1998 videA.R Registered letter. An affidavit of service was filed (encl. 7). From the A.R Card (exhibited as "IAH1" to encl. 7) the recipient of the documents had received them and had signed the relevant column in the A.R Card. The "Notis Temu Janji (NTJ)" was also served on the defendant by way of personal service on 2 April 1999. The defendant had also signed an acknowledgment of receipt at the back of the NTJ together with his full name and the date "2 April 1999" handwritten under his signature. The said originating summons came up for hearing before the judge in chambers on 14 June 1998 where from the records of the proceedings (in the court's file) the plaintiff was represented by Puan Kamisah bte Abdul Jalil while the defendant was present in person. On the same day (14 June 1998) the judge made an order as prayed in encl. 4 and fixed a date 20 September 1999 for the auction of the said land. The auction was then postponed to 14 October 1999 videorder of the court dated 12 August 1999. Again the auction was postponed to 7 September 2000 videorder of the court dated 20 July 2000. The auction was again postponed to 15 January 2001 videorder of the court dated 5 December 2000, at the request of the defendant, to enable the defendant to settle the whole amount claimed.

Unfortunately, the defendant has failed to settle the amount claimed. Then the auction was again postponed to 19 July 2001 videorder of the court dated 10 May 2001. Just one day before the scheduled auction on 19 July 2001 (ie, on 18 July 2001) the defendant filed the present encl. 52 together with another ex parteapplication (encl. 50) and a certificate of urgency, to the effect that the proposed auction of the said land which was to be held on 19 July 2001, to be deferred until the final disposal of the defendant's application (made inter partes) as in encl