The plaintiff had given an overdraft facility to Messrs. Weng Thye Chiang Hatchery of No. 4661 A & D, Jalan Sultan Yahya Petra, Kota Bharu and to secure the repaymenton demand of the balance sum on account of Messrs. Weng Thye Chiang Hatchery to the total limit of RM200,000.00 for principal and for interests at the rate of 10% per annum with monthly rests, commission and other usual banker’s charges the defendant chargedher property known and identified as Lot No.234 held under HS(D) 483/76 (now changed to PN 387) Section 25 Kota Bharu town (the said land). The Memorandum of Charge was signed by the defendant’s father Tan Ing Chang @ Tan Weng Chiang by a virtue of Powerof Attorney granted by the defendant. The charge was registered as Charge No. 14/80 - Presentation No. 53/80. The overdraft account was active and remained so active that at a certain time the facility was increased to RM450,000.00.

As at8 April 1988 a sum of RM203,014.08 being principal and interest was due and owing by the defendant to the plaintiff under the said charge. Inspite of repeated demands by the plaintiff the defendant was alleged to have failed, neglected and/or refused to paythe said sum of RM203,081.08 or any part thereof.

On 21 April 1988 the plaintiff through its solicitors sent the defendant a notice of demand for payment of principal sum in Form 16E under sec.255 of National Land Code 1965 requiringpayment of the said sum forthwith and with an intimation that if the said sum is not paid whithin one month of the service of the notice “the plaintiff shall apply for an order of sale”.

Since there was no response from the defendantthe plaintiff then filed an originating summons claiming, amongst others, for an order that the said land be sold by public auction to recover the sum of RM203.014.08 with further interests thereon at the rate of 9% par annum with monthly rests from 9 April1988 until the date of realisation. In support of the summons was an affidavit affirmed by one Noel Vong Kieon Kin, the plaintiff branch manager at Kota Bharu.

The defendant in resisting the said application filed an affidavit-in-replywhich raised several issues, the main ones were the legality and enforceablity of the charge as the donee of the power in signing the Memorandum of Charge had acted ultra vires the power given him, the demand for RM203,014.08 was in excess of her liability underthe charge, full satisfaction of the debt and estoppel. The defendant further claimed that upon the true construction of the charge documents she was not liable for any payment of interest and also for the return of the land title allegedly held by the plaintiffwithout any justification upon the overdraft being settled in full. Taking the issues of illegality of the charge and the liability for payment of interest, the plaintiff in the further affidavit relied on the doctrine of res judicata as the very same issueshad been raised and resolved by a court of competent jurisdiction. This was particularly so when in another related action registered as High Court Kota Bharu Originating Summons No. 31-88-1996 between Tan Sock Gin, (defendant in this action) and Hongkong &Shanghai Bank Corporation - now known as Hongkong Bank Malaysia Berhad (plaintiff in this action), Tan Sock Gin in the said originating summons applied for orders that:

1 The defendant do executea valid and registrable discharge of the Charge No. 14/80 Presentation No. 53/80 dated 8th January, 1980 in favour of the plaintiff forthwith;

2 The defendant do return to the plaintiff the title deed (and all other relevantdocuments) to the said property known as Lot 234, P.N.387, Seksyen 25, Bandar Kota Bharu, Kelantan forthwith - see exhibit MN1 to the affidavit of Mohd. Noor bin Din affirmed on 15.5.91, which contained the true copy of the Appeal Record in respect of SupremeCourt Malaysia Civil Appeal No. 283/86 incorporating all the cause papers relating to the case.

In the affidavit in support of the origina