Lamin Mohd Yunus J:

[1] This is an application by the plaintiff bank for the decision of this court on the following questions:

1

"Whether the plaintiff being also the chargee of property comprised under HS(M) 13399 Lot 3134/29 in the mukim of Kuala Kuantan is entitled at law and in equity to proceed by way of a civil suit before first realising the security under the charge and if so, is the plaintiff entitled to proceed concurrently on all his remedies?

[2] The plaintiff bank has made available banking facilities to the defendant by way of an advance as a housing loan and, for security, the same land where the purchased house stands is charged in favour of the plaintiff. That is the only form of security for the facilities given. Now the outstanding amount due as at 9 May 1986 to the plaintiff on the said facilities for which a claim is being made is RM290,873.56 (the description of the landed security is as appears in the question posed above). To realise the money owing, the plaintiff has applied for an order for sale of the charged land and the Kuantan Land Office has granted the application but has yet to fix the date of auction. The plaintiff has also filed a writ of summons in this court claiming the amount now due.

[3] The undisputed facts are that the charge is the only form of security for the loan. The defendant is the borrower and is also the registered owner of the charged land. The loan was granted in October 1982. The charge was registered on 22 February 1983. The amount of loan outstanding is not in issue.

[4] Learned counsel for the plaintiff maintains that the question as posed to this court must be answered in the affirmative in that both the foreclosure proceedings and the civil action can concurrently be pursued and counsels for both parties cited a number of authorities.

[5] In the case of the Malaysian International Merchant Bankers Bhd v. G & C Securities Sdn Bhd & Anor, [1988] 2 MLJ 471, on 14 December 1982 the plaintiff bank gave a loan to the 1st defendant company for a housing project and the company executed a charge in favour of the plaintiff bank. The same day the director of the company executed a written guarantee for the repayment on demand of all sums owing. When the defendants could not pay the loan a demand was made but they failed to pay. A writ of summons was first filed claiming for the sum of RM335,958.52 by way of balance of principal and interest thereon. Then a foreclosure action was taken. The learned Senior Assistant Registrar gave summary judgment and rejected the argument on behalf of the defendant that the charge should be realised first before the suit could be proceeded with. The appeal against the Senior Assistant Registrar's decision was dismissed.

[6] In the case of Malaysia Building Society Berhad v. Lim Kheng Kim & Ors, [1988] 3 MLJ 175 the plaintiff gave a loan to an incorporated company. The said loan was secured by a charge over the company's land. At the same time, the defendants also stood as guarantors for the loan. It was contended on behalf of the defendants that as the plaintiff had obtained an order for sale of the borrower's land and the sale was pending, the suit was therefore a useless piece of litigation because the value of the property exceeded the judgment sum. The court held that the provisions of the guarantee as a whole were such that the plaintiff was not bound or required to realise the security before enforcing the guarantee.

[7] In the case of Bank Bumiputra (M) Bhd v. Doric Development Sdn Bhd & Ors, [1988] 1 MLJ 462 the plaintiff granted an overdraft facility to the 1st defendant company secured by a charge over the company's land. In addition, the 3rd defendant signed a letter of guarantee for the repayment of the overdraft. The learned registrar granted leave to enter final judgment against them in favour of the plaintiff. The 1st and the 3rd defendants appealed against the said decision but it was dismissed.

[8] In the case of Bank Bumiputra