RK Nathan J:

The plaintiff loaned a sum of RM500,000 to one Danar Engineering Sdn Bhd (the borrower). The said loan was secured by a third party charge on the defendants' property known as H.S.(D)5114 Lot No. 29696, Mukim of Kuala Lumpur (the property). The borrower defaulted in the repayment of the said loan and the plaintiff filed this originating summons (OS) to foreclose the said property and to sell the same by way of a public auction to recover the outstanding loan. The sum outstanding as at 13 January 1998 is RM605,551.95.

Court's Findings

The defendants argued that since the OS is dated 28 August 1997 and the affidavit in support affirmed by one Seow Swee Eng (encl. 2) is dated 21 August 1997, the affidavit being affirmed earlier to the filing of the OS, must be rendered inadmissible. The defendants relied on H Stacey v. Diamond Metal Products Co, Ltd & Anor [1935] MLJ 248. In that case Terrell J said at p. 250:

... The argument however that no affidavit can be sworn in an action which has not yet been commenced is on a different footing. This is more than an irregularity and makes the affidavit qua affidavit, entirely inadmissible. Certainly there may be cases i