Haji Abdul Kadir bin Sulaiman J:

This is an application by the plaintiff for the removal of a caveat lodged by the defendant company over the 1 plaintiff's / rd undivided right titles share and interest 3 in the parcel of plaintiff's land situate at 8th Mile, Railway Line, Kuching, containing an area of 1.27 acres, more or less, and described as Lot 289 Block 59 Kuching Central Land District (hereinafter referred to as "the said land"). The said caveat of the defendant was registered at the Kuching Land Registry Office on 5 December 1980 as Instrument No. L. 13522/1980. See exhibit "LC1" to the affidavit of Lai Chon Foo @ Lai Chan Foo in support of the application, affirmed on 6 June 1992. The ground for wanting the said caveat to be removed is that the defendant has no more caveatable interest in the said land.

The said caveat was lodged by the defendant pursuant to clause 2 contained in the Promissory Note dated 21 July 1980 executed by the plaintiff in favour of the defendant company. The plaintiff initially owed the defendant company a sum of RM75,834.03. He failed to settle the amount due. The Promissory Note was executed in consideration of the defendant refraining from instituting immediate legal action against the plaintiff for the sum owed and allowing the plaintiff to pay the sum of RM51,523.56 only as full payment of the debt due without interest by two instalments each on a specified date, the last instalment being within three years from the date of the Promissory Note, which was 21 July 1980. In consideration of the foregoing indulgence granted by the defendant to the plaintiff and as security in respect of the said sum, the plaintiff permitted the defendant to lodge a caveat against the said land until full repayment thereof. In the event of the plaintiff failing or refusing to pay the said sum in accordance with the manners stated, the agreement stipulates that the defendant is at liberty to demand immediate payment of the said sum or any part thereof remaining outstanding. Thus the security provided is not the plaintiff's said land but the permission for the defendant to caveat the said land.

In his application for the removal of the said caveat, the plaintiff did not allege that ab initio the defendant has no caveatable interest. He applied for the said caveat to be removed on the ground that the claim for money due arising out of the Promissory Note which, according to him, has created the defendant's interest in the said land, is now statute barred. He admitted that he did not pay anything to the defendant since he executed the Promissory Note. According to the Promissory Note, the last instalment due was 21 July 1983. Since no action was taken by the defendant within three years from the due date for payment for its recovery, as provided by the Limitation Ordinance of Sarawak, the plaintiff contends that the defendant has lost his caveatable interest in the said land. So the caveat must be removed. So, it is to be noted that but for the alleged limitation, the plaintiff is not disputing the caveatable interest of the defendant in the said land.

By the defendant's affidavit in opposition affirmed by Datuk Wong Kie Nai, the Managing Director of the defendant company on 15 September 1992, it is alleged that the plaintiff made certain payment of the said debt on 30 May 1985 for RM200 and the defendant commenced legal action against the plaintiff for the balance of the debt due in Sibu High Court Suit No. KG. 17 of 1988. What in fact the defendant is saying is that the period of limitation is revived by the alleged payment of the RM200 by the plaintiff. As such the three years limitation began to run from 30 May 1985 and not from the original date of 21 July 1983 based on the Promissory Note. The writ in the suit was issued by the defendant on 24 February 1988. So, here if the defendant's allegation is correct, by the time it issued the writ, it was still within the limitation period. Therefore, the