JUDGMENT

I. APPLICATION

This is the plaintiffs application in enclosure (3) seeking an order for sale of the pieces of land held under HS (D) 5881, 5892, 6044, 6045, Geran 25831, 25833, 25835, 25836, 25837, 25840, 25841, 25842, P.T. Lot No. 1163, 1176, 1321, 1323, 1333 and 1334 in the town of Seremban, in the state of Negeri Sembilan ("the land").

2 II. FACTS OF THE CASE

At the request of one GKM Development Sdn Bhd ("the borrower") and the defendant, the plaintiff pursuant to a loan agreement dated 15 August 1986 ("the loan agreement") agreed to grant to the borrower a loan facility of RM1.7 million with interest at 2% per annum above the plaintiffs base lending rate ("the loan").

Under the loan agreement, the borrower agreed to :

(a) make repayment of the loan by way of three quarterly instalments of RM567,000 each and a final instalment of RM566,000, commencing 15 months from the date of the initial drawdown or by way of redemption of the land at the

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rates set out therein, whichever is the earlier;

(b) pay additional interest on late payment at

the rate of 1% per annum;

(c) pay the legal fees of the plaintiffs

solicitors on a solicitor and client basis if

the said loan or any part thereof shall be

required to be recovered through any

process of law.

In consideration of the loan, the defendant as registered owner of the land, created a third party charge in favour of the plaintiff in respect of the land as security for the repayment of the loan subject to the terms and conditions of the charge registered in the Seremban land office on 21 August 1996 vide presentation No. 16888-98 Jilid 1194 Folio 01 ("the charge"), under which the defendant agreed, inter alia, to :

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(a) repay the loan with interest stated

therein;

(b) pay additional interest on late payment at

the rate of 1% per annum;

(c) pay legal fees of the plaintiffs solicitors

on a solicitor and client basis incurred by

the plaintiff in enforcing its rights under

the charge; and

(d) be liable as principal debtor.

Both the borrower and the defendant have defaulted in the repayment of the loan and interest in arrears.

On 9 April 1999, the borrower was wound up.

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The plaintiff through solicitors' notice dated 13 October 2000 sent by registered post to the defendant's address stipulated at page 1 of the charge and also to the defendant's registered address demanded from the defendant the loan outstanding as at 12 October 2000 amounting to RM984,771.86 together with interest stated therein. The defendant failed to repay the amount demanded, thereby committing a breach of the terms of the charge.

On 14 December 2000, the plaintiff through solicitors sent a statutory notice in Form 16D of the National Land Code 1965 ("the statutory notice") together with a covering letter of the same date by way of AR Registered post to the defendant's registered address, requiring the defendant to remedy the breach within one month of the date of service of the statutory notice, failing which the

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plaintiff shall apply for an order for sale. The defendant has failed to remedy the breach.

III. SUBMISSION FOR DEFENDANT

En. Satwant Singh, learned counsel for the defendant, in arguing for the existence of "cause to the contrary" anchors on limbs (ii) and (iii) of Low Lee Lion v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77; Murugappa Chettiar v. Letchumanan Chettiar [1939] 8 MLJ (F.M.S.R.) 296; Kheng Soon Finance Bhd v M.K. Retnant Holdings Sdn. Bhd. & Ors. [1983] 1 MLJ 457 PC; Bumiputra-Commerce Bank Bhd v. Tengku Ngah Putra Tengku Ahmad Tqfuddin & Ors [2002] 4 CLJ 425.

He added that the loan agreement and the conduct of the parties envisaged repayments by the redemption of the land and that time for repayment

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and computation of interest were at large, and that the plaintiff has refused to release seven original titles to the defendant on 5 December 2000, thereby depriving the defendant's right to redeem the land and as such constituted an unconscionable conduct.

He canvassed that the purported t