Yusrin Faidz bin Yusoff JC:

GROUNDS OF JUDGMENT

INTRODUCTION

[1]In this case, the Plaintiff had applied for an order for sale over the Defendant’s land which has been charged to the Plaintiff pursuant to O.83 of the Rules of Court 2012

[2]On 30.11.2023, after hearing the submissions of parties, I found that the Defendant had not satisfied the Court of the existence of any cause to the contrary under s.256(3) of the National Land Code 1965 (“NLC”) I therefore allowed the Plaintiff’s Originating Summons with costs fixed at RM5,000.00. This judgment is prepared for the Defendant’s appeal based on their notice of appeal dated 29.12.2023

BACKGROUND FACTS

[3]Mohd Muzzammil Bin Mustapah and Jamrizal Bin Jamaludin (“the Borrowers”) who were directors and shareholders of Muzzam Teknologi (M) Sdn Bhd (“Defendant”) had applied to finance the purchase of their company’s double storey shophouse situated at No. 36, Jalan 9/7, Seksyen 9, 46350 Bandar Baru Bangi, Selangor Darul Ehsan held under individual title No. HS(D) 97757, lot No. PT 56990, Mukim of Bandar Baru Bangi, District of Ulu Langat, State of Selangor Darul Ehsan (“the said Property”) under the Shariah concept of Ijarah Muntahiyah Bittamlik (“IMBT”). The facility known as the “Ijarah Property Financing-i Facility” (“the said Facility”) is subject to the terms and conditions of the Offer Letter dated 29.05.2014 and Notification Letters dated 16.07.2014 and 27.08.2014 (“the Offer Letters”).

[4]Based on the Offer Letters, it has been agreed that the Plaintiffs purchase price (“the Bank’s Purchase Price”) shall be in the sum of RM675,000.00. Whereas the Plaintiffs Ijarah rentals (“Total Ijarah Rentals”) in the sum of RM2,268,360.00 are to be settled through 360 monthly installments of RM3,420.13 each. The following agreements were subsequently entered:

a)Ijarah Facility Agreement dated 29.8.2014 between the Plaintiff and the Borrowers (“the said Facility Agreement”);

b)Purchase Undertaking dated 29.8.2014 between the Plaintiff and the Borrowers (“the said Purchase Undertaking”); and

c)Ijarah Agreement dated 29.8.2014 between the Plaintiff and the Borrowers (“the Ijarah Agreement”).

[5]As a security to the said Facility, a Third Party Charge was given by the Defendant which was duly registered with the Land Registry bearing presentation No. 20783/2015 on 06.03.2015 (“the Charge Instrument”).

[6]The Borrowers failed to settle the Ijarah Rentals towards the said Facility wherein a demand was issued on 15.05.2023. As that point in time, the Borrowers owed 6-month installment arrears in the sum of RM25,171.85 wherein the basic outstanding sum stood at RM655,156.30.

[7]With the default ongoing, the said Facility was terminated and recalled via letter dated 08.06.2023. This was followed by the issuance of the Statutory Form 16D dated 30.06.2023, and thereafter the filling of this action on 07.08.2023. At the date of the Originating Summons was filed, the amount outstanding under the said Facility was RM2,012.349.36 together with ta’widh (compensation for late payment) based on RM675,000.00 at the rate of 1% per annum up to the date of maturity of the said Facility, and thereafter at prevailing daily overnight Islamic Interbank Money Market (IIMM) rate until full settlement or the grant of the order for sale.

COUNSELS’ CONTENTIONS

[8]Plaintiffs learned counsel Tan Kok Thong contends that the Plaintiff has complied with the provisions of O.83 of the Rules wherein the Defendant has failed to show cause to the contrary. The cases of Keng Soon Finance Bhd v MK Retnam Holdings Sd Bhd & Anor Ambank Bhd v. Chidambara Nathan MST Muthusamy & Anor Low Lee Lian v. Ban Hin Lee Bank Berhad

[9]Defendants’ learned counsel, Muhammad Asif Zahari, argues that as a result of a loan in the sum of RM1,891,169.58 granted by Ahmad Faris Bin Abdul Halim for the use of the Defendant and Xspec Resources Sdn Bhd, a false Police report was lodged by the said Ahmad Faris Bin Abdul Halim on 20.04.2022. According to the Defendant the