JUDGMENT

Raja Azlan Shah Acting LP:

The brief facts of this matter are that in consideration of guarantee agreements dated 1 June 1976 for the sum of RM5 million in respect of a fixed loan to the 1st respondent for that amount and letters of guarantee and indemnity dated 1 September 1976 for credit facilities for the purchase of bills of exchange by the 1st respondent for the sum of RM9 million executed by the 2nd, 3rd and 4th respondents, the appellant granted to the 1st respondent banking facilities to that end, and on the respondent's failure to comply with notices of demand for the outstanding sums due the appellant took out a specially indorsed writ in these proceedings on 12 November 1979 claiming against the respondents the sum of RM8,540,846.34 being the aggregate of the amounts then due and outstanding and the accrued interest thereon.

The appellant however in its statement of claim did not state that the respondents had in fact as security for the credit facilities to be given to the 1st respondent lodged with the appellant shares (which according to the respondents had as at February 1981 a total market value exceeding RM11 million excluding bonus issue shares) under 4 m