Abdul Malek Ahmad J:

It is not disputed that on 13 August 1977 the defendant as registered proprietor had executed a charge in favour of the plaintiff of sixty-six pieces of land all in the Mukim of Kampar, Perak (Schedule A) to secure the repayment of a loan up to a limit of RM560,000 together with interest at the rate of 12% per annum on monthly rests and that on 23 March 1983, the defendant had executed a charge of two hundred and fifteen pieces of land, also all in the Mukim of Kampar, Perak (Schedule B) to secure the repayment of a loan up to a limit of RM3.5 million together with interest at the rate of 16% per annum on monthly rests. What is in dispute is the effect of the plaintiff's letter dated 7 October 1988 stating that they had exercised their rights to consolidate both the accounts secured by the charges for the lands in both Schedule A and Schedule B.

In their originating summons filed on 5 July 1989, the plaintiff had applied to sell the lands in Schedule A only to realise the sum of RM6,589,256.93 owing as at 7 June 1989 together with interest payable at 17% per annum on monthly rests on the balance of RM6,544,689.97 and at the rate of 12.5% per annum on monthly rests on the rest of the balance, both to be calculated from 1 June 1989 up to the final date of settlement, and for other consequential orders. Despite the application to foreclose for lands under Schedule A only, the amounts outstanding are based on the consolidation of the charge accounts for both the lands under Schedule A and Schedule B.

It is also pertinent to point out that in their supporting affidavit, the plaintiff's branch manager had affirmed that they had in fact instituted foreclosure proceedings on the lands in Schedule B vide Ipoh High Court Originating Summons No. 312/85.

In the meantime, the interveners had applied to be added on as interveners by summons in chambers filed respectively on the 29 March 1990, 30 March 1990 and 30 October 1990 which were granted on 30 March 1990, 14 September 1990 and 2 November 1990 respectively as there were no objections from the plaintiff and the defendant. In their supporting affidavits, the first, second and third interveners had stated that they had each bought one of the lands in Schedule A on 17 February 1981, 20 August 1979 and 15 July 1982 respectively and had paid the defendant the full purchase price. Upon knowing of the foreclosure action against the defendant, they had made inquiries and were told that the redemption sum for their individual piece of land was about RM8,000. However, when they wanted to make payment, they were told that the redemption sum was about RM90,000 due to the consolidation of the defendant's accounts. The third intervener had also exhibited the letter from the plaintiff dated 6 August 1980 (Exhibit K3 at encl. 21) which had given the redemption sums as RM11,000 for shophouses, RM9,000 for terrace houses and RM8,000 for semi-detached houses.

In her submissions, learned Counsel for the plaintiff had told the Court that the lands under Schedule B had in fact been sold by public auction on 26 May 1990 following the order made under Ipoh High Court Originating Summons No. 312/85. As such she was asking only for the order for sale of the lands under Schedule A.

Learned Counsel for the defendant questioned the legality of the plaintiff consolidating the defendant's account of the lands under Schedule A and Schedule B by letter dated 7 October 1988 after the order for sale had been made for the lands under Schedule B. He was of the view that there was nothing left to consolidate in the circumstances. Learned Counsel added that the defendant was quite willing to repay the redemption sum due for the lands in Schedule A but the plaintiff had insisted that they pay the balance of RM4 million due on the lands in Schedule B as well. In fact, learned Counsel had also agreed to the order for sale being made subject to it being confined to the lands under Schedule A only.