JUDGMENT

Anselm Charles Fernandis J:

Introduction

[1] Affin Bank Bhd, the plaintiff (P) had applied in Enel. 1 for an Order for Sale of land described as No Hak Milik Geran 12379, No Lot 30, Kawasan Bandar XV, Daerah Melaka Tengah, Negeri Melaka ('the land'). S.P.A Supreme Holdings (M) Sdn Bhd, the defendant (D) was the registered owner of the land.

[2] On 6 February 2025, I decided to grant the P's application. D appealed to the Court of Appeal against my decision. I now give my reasons for deciding as such.

Brief Background

[3] The land was charged to P to secure Banking Facilities to Kuasa Waja Automobile (M) Sdn Bhd ('the borrower').

[4] The Banking Facilities granted to the borrower included an Overdraft facility, Letter of Credit, Term Loan 1, Term Loan 2, Term Loan 3 and Term Loan 4 (collectively referred to as the Facilities).

[5] To secure the Facilities for the borrower a 3rd Party Charge was registered against the land on 4 May 2018 via No Perserahan 0400SC2018005397 (the Charge)

[6] The borrower subsequently defaulted in the repayment of the Facilities granted to it. The borrower had defaulted in the payment of the Facilities to the amount of RM35,582,104.70 as at 29 February 2024. This resulted in P as the chargee applying for an Order for Sale to enforce the security in the charge.

[7] A notice of Demand was issued to the borrower on 5 September 2023. The borrower did not comply.

[8] This was followed by a Notice of Termination issued by P on 19 September 2023.

[9] P then issued a 16D Notice of Default dated 26 March 2024 pursuant to the National Land Code to D. It gave D within one month from the date of receiving the notice to remedy the default.

[10] D had not complied with the 16D Notice. Subsequently P proceeded to file this application in Enel. 1.

[11] D in opposing this application submitted as follows:

(a) P had failed to give the full details as to how they calculated the amount owed by the borrower to P. D contends that P must show how the amount owed was ascertained. The case of Danaharta Urus Sdn Bhd v. Safri Nawawi & Anor; [2009] 9 MLJ 423; [2008] 10 CLJ 134 was referred to;

(b) P had failed to produce the Certificate of Indebtedness in the Affidavit in Support as conclusive evidence of the amount owed. It was contended that D was never served with such a certificate before this application was filed. It was further contended that D had been prejudiced by not producing the certificate;

(c) D had not agreed to the terms of the Loan Agreements and did not consent to the same;

(d) The interest rates were unreasonable and therefore did not bind D;

(e) P did not give details as to how the interest rates were derived. Neither did P show how the arrears of the repayments was calculated in their statement of claim;

(f) There was no explanation in the Originating Summons or in the Affidavit in Support as to the formula for the calculation of interest;

(g) The calculation of interest was excessive causing loss to the D;

(h) If D knew of the excessive nature of the interest D would not have entered into agreement with P;

(i) D claims that the figure stated and claimed in the Form 16D was baseless and that D was prejudiced when the figure stated was not clear;

(j) The security which had been charged by D was enough to settle the amount owed by D to P. By virtue of an offer letter dated 6 December 2019 the value of the securities was RM26,000,000.00.

[12] Counsel for P had submitted that D had failed to prove "cause to the contrary". It was therefore incumbent on the Court to allow the application for an Order for Sale.

The Law

[13] The relevant law in respect of this application can be found in O 83 Rules of 2012 which states:

1. Application and interpretation (O 83 r 1)

(1) This Order applies to any action (whether begun by writ or originating summons) by a chargee or chargor or by any person having the right to foreclose or redeem any charge, being an action in which there is a claim for any of the following reliefs:

(a) payment of m