JUDGMENTBY: WAN HAMZAH SCJ

(delivering the judgment of the court): In December 1981 the appellant, Lesco Development Corporation Sdn. Bhd. (hereinafter referred to as Lesco), charged its land to the respondent, Malaysia Building Society Bhd. (hereinafter referred to as MBS), on the terms and conditions contained in an agreement attached to the document of charge as an annexure to secure a loan of $ 5,000,000 which MBS had agreed to grant to Lesco. A document dated November 30, 1981 which was purported to be a document of guarantee in respect of the loan was signed by five persons (hereinafter referred to as the guarantors).

On December 13, 1985, MBS filed a suit in the Commercial Division of the High Court at Kuala Lumpur (Civil Suit C8369/1985) against Lesco and the five guarantors, in which it is alleged that Lesco owed MBS a sum of $ 4,688,863.70 as at October 31, 1985, in breach of the terms and conditions of the charge. MBS claims that sum from Lesco and the guarantors. A few days later, i.e. on December 17, 1985, MBS filed in the Family and Property Division of the High Court at Kuala Lumpur an originating summons (Originating Summons F2652/1985) to initiate foreclosure p

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