1. Delay

O.18 R. 19(1) does not specify the time under which a party may apply to strike out a pleading, etc. The words 'at any stage of the proceeding' expressly exclude any time limit for the making of an application for striking out.

But the authorities (Jamir Hassan v. Rang Min [1992] 2 MLJ 46) do suggest that it should be made promptly and as rule made before the close of pleadings and must be refused after the action has been set down for trial.

In my view the term "set down for trial" must necessarily mean that the matter has been given a date for the hearing of the same. It could not come within the ambit of Or. 34, for under Or. 34 there is still a lot of things to be done procedurally before that matter is ready for trial. Order 34 r. 4(1) and (2) specifies the nature of the order and directions the judge may issue after conferring with the parties there in. The Or 34 proceeding is still at the early stage of the proceedings. Therefore it is premature at this stage to shut the door for an application under Or. 18 R. 19. The fixing of the trial date is still far off in the offing. The fact that in this case there have been a number of PTCs is proof that the trial or hearing of this matter is still a long way off.

2. The delay in the application made by the Defendant, if any is not in-ordinate. The Plaintif submitted there was an 8 months' delay. In my view it is still within the acceptable limit and was made before the matter was fixed for trial. In Doree Industries (M) Sdn Bhd & Ors v. Sri Ram &Co (sued as a firm) & Ors [2001] 4 CLJ 446; [2001] 6 MLJ 532, the delay was more than one year but was ruled to be not fatal.

General principal regarding to Or 18 r. 19(1)(c) as laid down in New Straits Times (M'sia) Bhd v. Kumpulan Kertas Niaga Sdn Bhd & Anor ; [1985] 1 MLJ 226 are as follow:-

"in an application to strike out pleadings under Or 18 r. 19 (1)(a) no evidence shall be admissible and the court must consider only the pleadings for the purpose of determining whether the Statement of Claim disclosed no reasonable cause of action or the Statement of Defence disclosed no defence. The test to be applied is whether on the face of the pleadings, the court is prepared to say that the cause of action or the defence is obviously unsustainable".

3. Whether reasonable cause of action shown:-

- The 1st issue raised by the Plaintiff- the 3rd Defendant has no rights under the debentures to appoint receiver and manager (R & M) as the debentures were only made in favour of the original bank (UMBC) and that the Defendant has never been a party and privy to the debentures.

- Agrees with the submission by Defence Counsel that upon vesting certificate issued under the Pengurusan Danaharta Nasional Bhd Act 1998, the 3rd Defendant was conferred and acquired all rights, title interest in the facilities including the debentures which are part of the securities for the original bank. Section 14(4) a, b, c, d of the Act are worded in such clear terms. Therefore this issue does not arise.

- 2nd issue

No Deed of Substituted Power of Attorney executed in favour of the 3r Defendant. Agreed that the vesting certificate is sufficient to confer the rights on the 3rd Defendant to enforce whatever remedies available under the debenture, as provided under section 14(1),(2) & (3) of the Danaharta Act.

The law being settled there are no real serious issues to be tried in respect of the rights and powers of the 3rd Defendant relating to the issues raised by the Plaintiff.

- Violation of Danaharta Act

Could do no better than reiterate the decision in Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd (Bar Coucil Malaysia Intervener) [2004] 1 CLJ 701; [2002] 2 MLJ 257:-

"Parliament's clear intention in enacting the Act was to ensure that the acquisition of non-performing loans by the appellant would ease the pressure upon banks and other financial institutions with the appellant being entrusted with the task, as the nation's Asset Management Company, to