Wan Yahya bin Pawan Teh SCJ:

In the High Court in Muar, the 1st respondent, Siland Sendirian Berhad (hereinafter referred as 'the chargor') successfully applied for and obtained a decree annulling the earlier order for sale made by the SAR, forfeiture of the deposit and other consequential reliefs in respect of an auction sale of its land initiated by the 2nd respondent, Eu Finance Berhad (the chargee). The present appeal against the High Court's decision was brought by the 1st appellant, M & J Frozen Food Sdn. Bhd. (the purchaser). The 2nd respondent, Mohd Kepol bin Bidin (the auctioneer) had since passed away and the chargee, perhaps on realising that his redemptive objective would be better served by the High Court's judgment, elected to abandon the appeal.

To ensure a prescriptive appreciation of this case some antecedent events leading to the present appeal are set out in detail: Siland, the chargor at the commencement of the suit at Muar, was the registered owner of all that piece of land held under H.S. (D) 40269, Lot No. PTD 18279, in the Mukim of Plentong, in the District of Johor Bahru, the subject matter of these proceedings (the said property).

The said property was at all material times charged by the chargor to Eu Finance Berhad, a licensed finance company incorporated in Malaysia (the chargee).

On 6 May 1985 due to a default on the part of the chargor, the chargee applied for an order for sale of the said property by public auction vide Johor Bahru High Court Originating Summons No. 180/1985 and the order was made by Mahadev Shankar J. of the High Court at Johor Bahru on 10 March 1986.

Pursuant to the abovementioned order, the acutioneer, a licensed auctioneer and appraiser (now deceased), was appointed by the Court to conduct the sale of the said property by public auction and such auction was conducted on 25 January 1987.

Apparently, sales of land by public auction by the Court in Johor State has always been conducted subject to proclamation of sale holding conditions derived from two separate documents, one known as the "Johor Conditions of Sale" and the other "Special Conditions of Sale". The proclamation which provides that the property be sold subject to both conditions, has the special condition annexed to it but any intending bidder has to inspect the Johor condition of sale which was available at the auctioneer's office.

Both conditions deal with matters pertaining to the conduct of public sales such as the description of property, the procedure of bidding, the requisition and the completion date. The Johor conditions of sale appear to be general in form whereas the special conditions contain some specific conditions of sales.

Now, reverting to the events at the auction sales, the purchaser who was the highest bidder at a price of RM196,000 was duly pronounced the purchaser of the property. He paid RM49,000 being 25% deposit of the total purchase price as provided under clause 6 of the special conditions of sale and clause 2 of the Johor conditions of sale and the money was accordingly paid into Court. According to clause 7 of both Conditions, the balance of the purchase money amounting to RM147,000 was to be paid into Court within 30 days from the date of sale. As the auction had taken place on 25 January 1987 such payment should have been paid by 24 February 1987. However this was not done.

In view of this default, the chargor entered a private caveat on the property on 9 April 1987. In addition he also wrote to the Senior Assistant Registrar (SAR) drawing her attention to the default by the purchaser in completing the purchase of the property within the stipulated time and informing her that he had on 24 February 1987 entered a caveat on the said property. We were given to understand that on 22 September 1988 the caveat was removed by L.C. Vohrah J. on what the purchaser's Counsel termed as technical grounds.

On 15 July 1987 after the filing of the summons in chambers but before the removal