Gopal Sri Ram JCA:

This appeal is directed against the order of the High Court dismissing the appellant's application to strike out the respondent's originating summons.

Although this case has a very long history, the issue at stake in the present proceedings is a narrow one. The gist of the respondent's complaint against the appellant is that it took a charge over his land promising to advance him a general overdraft facility of up to RM1.4 million but failed to do so. On that basis, the respondent claimed the following relief in his originating summons:

(1) A declaration that upon the true construction of the Memorandum of Charge dated 9th August, 1965 (and registered as Memorial No. 92666 in the Central Land Registry, Sabah) and made between the Plaintiff as chargor of the one part and the Defendant as chargee of the other part:

(a) the Defendant had covenanted to grant the Plaintiff general overdraft facilities up to a maximum amount of M$1,400,000.00;

(b) that the Plaintiff had executed the Charge in consideration of the agreement on the part of the Defendant to grant the Plaintiff the said overdraft facilities;

(c) that the Memorandum of Charge as a Charge on the lan