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2025 MarsdenLR 3770
HIGH COURT MALAYA SHAH ALAM
PUBLIC BANK BERHAD – Appellant
Versus
KOK KON SANG – Respondent
[Originating Summons No: BA-24FC-553-06/2024]
Plaintiff's certificate of indebtedness is paramount in foreclosure proceedings; disputes on debt do not negate rights under registered charges.
Headnote:(A) Land Code - Statutory notice for foreclosure - The Plaintiff foreclosed on property as security for loans due to default by the Defendant, who had been declared a vexatious litigant and barred from legal proceedings without leave. (Paras 1-4)
(B) Certificate of indebtedness - The court relied on the Plaintiff’s certificate of indebtedness, affirming that disputes regarding the debt amount should be settled in separate proceedings, not during foreclosure. (Paras 9)
(C) Admissibility of charge - Non-stamping of a document does not invalidate it unless it affects its core validity, the charge was found adequately assessed and stamped. (Paras 9)
(D) Counterclaims - Defendant's allegations regarding breach of contract were insufficient to defeat the Plaintiff’s rights under the registered charge. (Paras 9) (E) Allegations of misconduct - The court found no faults in the Plaintiff’s conduct during the proceedings, dismissing allegations of money laundering, cheating, and misconduct. (Paras 10)
Facts of the case:
The Plaintiff initiated foreclosure proceedings against the Defendant for defaulting on loans secured by the charged property, with the court noting the Defendant's history of vexatious litigation. (Paras 1-3)
Findings of Court:
The court found that the Defendant had failed to provide legitimate reasons against the foreclosure, and therefore, granted the Plaintiff's order for sale with costs. (Paras 11)
Issues: The main issues included the validity of the charges, the Plaintiff's conduct during proceedings, and the Defendant's claims of improper debits and rights to a counterclaim. (Paras 8)
Ratio Decidendi: The court ruled that the Plaintiff’s certificate of indebtedness was credible and that disputes relating to the debt did not constitute defenses against foreclosure; breaches claimed by the Defendant were irrelevant to the statutory foreclosure process. (Paras 9)
Result: Order for sale granted; Defendant's application for stay dismissed.
| Table of Content |
|---|
| 1. plaintiff foreclosed due to loan default. (Para 1 , 2 , 3) |
| 2. defendant's arguments challenged the plaintiff's claims. (Para 4 , 6 , 7 , 8) |
| 3. court dismissed defendant's claims adequately. (Para 5 , 10) |
| 4. court's rationale on validity of the plaintiff's claims. (Para 9) |
[1] In this action, the Plaintiff foreclosed on land held under title No H.S.(D) 97336, No PT 3795 (Lot 7976) di Mukim Damansara, Daerah Petaling, Negeri Selangor ("Property") which had been charged by the Defendant as security for 2 fixed loans and an overdraft facility. Due to default, the Plaintiff terminated the facilities and demanded payment of the debt. The Statutory Notice in Form 16D dated 19 March 2024 was eventually served to commence these proceedings.
[2] Based on the certificate of indebtedness furnished according to the terms of the facilities, as at the date of the hearing on 27 February 2025, the debt claimed by the Plaintiff amounted to:
(a) RM35,052.50 under the RM50,000.00 Fixed Loan (Account No 2-1384066-21) with interest accruing at 6.7% + Base Rate at daily rests
(b) RM41,244.89 under the RM50,000.00 Fixed Loan (Account No 2-1434767-17) with interest accruing at 6.7% + Base Rate at daily rests
(c) RM268,859.54 under the RM220,000.00 Overdraft (Account No 3-1747083-22) with interest accruing at 6.7% + Base Rate at daily rests
The Plaintiff's Base Rate was stated to be 3.25% p.a. and subject to change.
[3] The Defendant was unrepresented and had been previously declared a vexatious litigant not once, but twice, in:
(a) KL High Court Originating Summons No: WA-24NCvC-1904-06/2022 [Institut Akauntan Malaysia v. Kok Kon Sang] dated 4 December 2023
(b) KL High Court Originating Summons No: WA-24NCvC-1212-03/2024 [CIMB Bank Malaysia Berhad v. Kok Kon Sang] dated 16 July 2024]
and is barred from commencing further legal proceedings in any Court in Malaysia except with the leave of the High Court of Malaya. These orders were duly gazetted ("Order and Notification of Vexatious Litigant").
[4] When this matter first came up for hearing before me on 20 February 2025, there were various letters, a notice to attend pre-trial case management and 2 pending interlocutory applications filed by the Defendant, the substance of which were difficult to decipher. The Defendant's papers were filed with random references to law and did not conform to the requirements of the Rules of Court 2012. For identification purposes, the 2 applications may be loosely described as follows:
(a) Notice of Application dated 14 October 2024 (Enclosure 10), which sought to strike out the Plaintiff's Affidavit in support of the Originating Summons; and
(b) Notice of Application dated 17 February 2025 (Enclosure 45), whichsought to stay these proceedings pending disposal of Court of Appeal Civil Appeal No: W-02(IM)(NCVC)-2127-12/2024
The appeal in question related to the Order and Notification of Vexatious Litigant from the proceedings with CIMB Bank Berhad.
[5] In the light of the terms of the Order and Notification of Vexatious Litigant, this Court informed the Defendant in no uncertain terms on 20 February 2025 that the applications in encls 10 and 45 would not be heard until he sought permission, but in the interest of justice, the Court would hear him on any cause to the contrary why an order for sale should not be made on the Originating Summons. Further, this Court allowed a postponement of the hearing of the Originating Summons so that the Defendant could be prepared.
[6] The Originating Summons was heard on 27 February 2025. The proceedings were complicated by the Defendant's unfamiliarity with and/or disregard of the rules of civil procedure. He also claimed to be literally hard of hearing. The Defendant did not understand and/or refused to acknowledge the supplementary affidavits filed by the Plaintiff in these proceedings to update the amount of the indebtedness and the affidavits of service of the same with each postponement of the hearing of
