The revival of a time-barred debt can occur through part payments by a guarantor, and mere delay does not invoke the doctrine of laches without evidence of prejudice.

Introduction

[1] This is an appeal by the Appellants against the decision of the Batu Pahat Land Administrator in granting an Order for Sale on 2 August 2022 for the land known as No Hakmilik Geran Mukim 5268 Lot 2389 Mukim Tanjong Sembrong, Daerah Batu Pahat, Negeri Johor (hereinafter referred to as "the said property").

Background

[2] Pursuant to a Letter of Offer dated 11 October 2006, the 1st Respondent granted a loan facility in the sum of RM1,979,323.00 to a company known as Invitrotech Sdn Bhd (hereinafter referred to as the "Company") in accordance with Qardul Hasan principle pursuant to the Qadrul Hasan Agreement dated 22 January 2007.

[3] As a security towards granting of the said loan facility, the following two (2) properties were furnished by way of a 3rd party charge:

(a) GM 5268 Lot 2389 Mukim Tanjong Sembrong, Daerah Batu Pahat, Negeri Johor;

(b) GM 4728 Lot 262, Mukim Tanjong Sembrong, Daerah Batu Pahat, Negeri Johor.

[4] Appellants are the registered proprietors of the property known as GM 5268 Lot 2389 Mukim Tanjong Sembrong, Daerah Batu Pahat, Negeri Johor, and this appeal concerns an order for sale granted for this property.

[5] Apart from the 3rd party charges, the 1st Appellant and one Ahmad Sukri Ibrahim being directors of the Company also provided a Guarantee dated 22 January 2007 to the 1st Respondent for granting of the loan facility to the Company.

[6] The Company defaulted on the loan repayment and the 1st Respondent issued Form 16D on 19 February 2020 demanding the outstanding sum RM1,979,226.33.

[7] Thereafter, the Company made four (4) payments of RM2,000.00 each totaling RM8,000.00 towards the outstanding loan sum.

[8] Since the Company failed to remedy the breach, 1st Respondent filed Form 16G with the 2nd Respondent's Land Office to obtain an order for sale for the said property.

[9] On 13 October 2020, an Inquiry was held before the Land Administrator. The Appellants were not present and the Land Administrator granted an order for sale.

[10] The order for sale in Form 16M was issued by the 2nd Respondent fixing the reserve price at RM140,000.00 and the auction was fixed on 16 December 2020.

[11] This was followed by an Appeal filed by the Appellants to set aside the order for sale on the ground that they were not heard during the inquiry by the 2nd Respondent and they have a right to be heard.

[12] Their appeal was allowed by His Lordship Awang Armadajaya Awang Mahmud (JC) on 22 June 2021. Hence the first order for sale was set aside and Court ordered a new inquiry to be held by the 2nd Respondent.

[13] The 1st Respondent thereafter wrote to the 2nd Respondent and obtained a new date for inquiry which was fixed on 7 June 2022. On this date, the Appellants were present and requested an adjournment for two (2) months to negotiate a settlement. The inquiry was then adjourned to 2 August 2022.

[14] On 2 August 2022, the 1st Respondent informed the 2nd Respondent that no settlement was reached and upon hearing both parties, the Land Administrator proceeded to grant an order for sale for the said property. The reserve price was fixed at RM140,000.00 and the auction was fixed on 9 November 2022.

[15] Hence, the Appellant now appeals against the second order for sale granted on 2 August 2022.

Preliminary Point

[16] When this matter first came up before me on 2 November 2022, the 1st Respondent had already filed and served their Affidavit in Reply. I then directed the Appellants to fi