The enforcement of a charge is limited to twelve years from the default date under Section 21(1) of the Limitation Act 1953, barring the creditor's right after this period.

[1] This appeal has a chequered history. It relates to the recovery of a debt arising from the grant of a loan facility to one Nik Ab Rahman bin Nik Mat, now deceased as early as 1981. There was default in the repayment of the loan and enforcement of the charge over landed property, namely a house, comprising security for the loan was initiated in 1987. The primary issues in this appeal relate to limitation and the construction to be afforded to s 21(1) and (5) of the Limitation Act 1953 , in the context of s 256 of the National Land Code. When does a cause of action accrue for the purposes of s 21(1) of the in relation to the recovery of land by the enforcement of a charge? Is it when the debt first became due and payable or does such right arise upon compliance with the provisions of s 256 of the National Land Code upon issuance of the Form 16D?

[2] In determining this issue, we are guided by the decision of this court in Sivadevi Sivalingam v. CIMB Bank Berhad , [2018] 5 MLJ 82 .

Factual Matrix

[3] On 20 April 1981, Bank Bumiputra Malaysia Berhad ('BBMB') offered a fixed loan facility of RM130,000.00 to one Nik Ab Rahman bin Nik Mat, now deceased ('the deceased'). The deceased was also the registered owner of a property held under H.S.(M) 124, Lot No. 7663, Mukim Sg Buloh, Daerah Petaling, Selangor Darul Ehsan. As security for the loan, a first fixed charge was registered in favour of BBMB on 21 October 1981.

[4] The deceased was the 2nd defendant throughout most of these proceedings, but upon his death, the 1st defendant, Wan Zubaidah Bt Wan Mahmood was appointed the personal representative of his estate.

[5] On 3 September 1999, the business and assets of BBMB were transferred to and vested in the Bank of Commerce (M) Bhd. On 30 September 1999, the latter bank changed its name to Bumiputra-Commerce Bank Berhad.

[6] On 6 September 2006, vide a second vesting order, Southern Bank Berhad and Bumiputra-Commerce Bank Berhad's business and assets were transferred and vested in Bumiputra-Commerce Bank Berhad. Bumiputra-Commerce Bank Berhad then changed its name to CIMB Bank Berhad.

[7] The plaintiff, who is the respondent here, is therefore CIMB Bank by reason of the devolving of the business and assets of BBMB and Bumiputra- Commerce Bank as well as Southern Bank to it vide the two vesting orders ('the Bank').

[8] The deceased defaulted in the repayment of facilities in the 1980's, after which the Bank on 8 January 1987 and 17 February 1987 issued the statutory form for the commencement of an order for sale under the National Land Code ('NLC') vide the issuance of a Form 16D.

[9] On 5 October 1988, an order for sale was granted by the land administrator of the Petaling Land Office, after which a first auction was fixed for 31 October 1988 for RM100,000.00. A sale was effected at the price of RM119,000.00 but the purchaser failed to pay the balance purchase price, after which the sale was cancelled by the Land Administrator.

[10] A second and third auctions on 23 December 1993 and 8 September 1994 were fixed with reserve prices of RM156,000.00 and RM153,000.00 respectively. The land remained unsold.

[11] On 13 June 2003, deposits previously paid by successful bidders amounting to RM36,538.00 was forfeited and credited to the account of the borrower.

[12] In view of the unsuccessful auctions, the Land Administrator issued a Certificate of Reference to court" or "Sijil Rujukan Mahkamah". The order for sale proceedings were effectively transferred to the High court vide s 265(3) (b) of the NLC.

[13] On 31 May 2004, the Bank issued a Form 16D against the 2nd defendant. Some eight years later on 26 March 2012, the Bank filed an originating summons in the High court at Kuala Lumpur. The originating summons w