Clement Skinner J:

This is the hearing of an application made by HSBC Bank Malaysia Berhad ('the plaintiff), pursuant to s. 148(2)(c) of the Sarawak Land Code (Cap. 81) for an order for sale of all the one-third (l/3rd) undivided right title share and interest held by Tan Sri Datuk Amar Ling Beng Siew ('the defendant') in 2 parcels of land held under title Lot 302 Block 59 Kuching Central land District now Block 36 Muara Tuang Land District and Lot 303 Block 59 Kuching Central Land District now Lot 36 Muara Tuang Land District (hereafter 'the said lands'). The said lands were charged to the plaintiff as security for banking facilities of RM5,000,000; RM3,360,000; and RM20,000,000 granted by the plaintiff to a company called Dominance Resources Sdn Bhd (hereafter 'Dominance'), in the form of overdraft or general banking facilities. The charges executed by the defendant have been duly registered at the Kuching Land Registry Office as Samarahan Instrument No. L1588/1988 on 17 September 1988, as L2198/1992 on 19 November 1992 and as L731/1994 on 12 May 1994 respectively.

As at 2 May 2001 Dominance's outstanding balance in respect of the banking facilities granted to it stood at some RM61,398,410.17. On 21 May 2001, the plaintiff caused its lawyers to make a demand on the defendant for repayment of the aforementioned sum within thirty (30) days of receipt thereof failing which proceedings would be instituted under s. 148 of the Sarawak Land Code to recover the aforementioned sum and interest. The aforementioned demand was sent to the defendant by Registered Post on 22 May 2001.

The defendant not having paid to the plaintiff the amount demanded from him, the plaintiff commenced these proceedings on 27 June 2001. The originating summons herein was personally served on the defendant on 5 September 2001 whenafter he filed two affidavits to oppose the plaintiff's application.

In making this application, the plaintiff's Corporate Recovery Manager one Mr. Khoo Chiew Seng signed a Certificate of Statement of Account showing that as at 27 June 2001 Dominance was indebted to the plaintiff as the sum of RM62,274,798.58 and that interest on overdraft and Banking Credit would continue to accrue at 9.3% per annum and 10.3% per annum respectively from 28 June 2001 until full and final settlement.

The defendant resisted the plaintiff's application for sale on the following grounds:

(1) On each occasion the plaintiff took a charge over his undivided shares in the said lands, the plaintiff had represented to him that the charge was to secure specific limits of money lent to Dominance, ie, initially for a maximum sum of RM5,000,000, then an additional RM3,360,000 in October 1992 and finally yet another RM20,000,000 in April 1994. However, the defendant alleges that the plaintiff had unilaterally and without his consent, increased the maximum limits of the amount lent to Dominance, in breach of the plaintiff's aforesaid representations and clearly stipulated limits set out in each charge. According to counsel for the defendant, "he (the defendant) is discharged of all liability under the various charges on account of the plaintiff and the borrower unilaterally increasing the advances to the borrower (Dominance) to the detriment of the defendant/chargor".

(2) The demand for payment made by the plaintiff is bad in law, invalid and ineffectual as the plaintiff had wrongfully and improperly issued a demand far in excess of the limits stipulated in each of the charges. It was the submission of counsel for the defendant that under the three charges executed, the plaintiff could at best demand a sum of RM28,360,000, but here the plaintiff had issued a demand for RM61,398,410.17 thereby rendering the demand invalid and ineffectual.

According to counsel for the defendant the making of an ineffectual demand against the defendant has had a disastrous effect on the plaintiff's application for sale because he pointed out that in West Malaysia, where a cha