JUDGMENT

This is the hearing of an application by Affin Bank Berhad (formerly known a BSN Commercial Bank (Malaysia) Berhad) (hereafter 'the plaintiff), pursuant to section 148 (2) (c) of the Sarawak land Code ('the Code') for the sale of 50 pieces of land charged to it by Woodhouse Sdn Bhd (hereafter 'the defendant') and described as Lots 7232, 7233, 7234, 7235, 7236, 7237, 7238, 7239, 7240, 7241, 7242, 7243, 7244, 7245, 7246, 7247, 7255, 7256, 7257, 7258, 7259, 7260, 7261, 7262, 7263, 7264, 7265, 7266, 7267, 7268, 7312, 7313, 7314, 7315, 7316, 7317, 7318, 7319, 7320, 7321, 7322, 7323, 7324, 7325, 7326, 7327, 7328, 7329, 7330 and 7331 all of Block 59 Muara Tuang Land District (hereafter referred to as 'the said lands').

The said lands were charged to the plaintiff as security for banking facilities (in the form of an Overdraft and Revolving Credit) granted by the plaintiff to a company called Ekran Berhad (hereafter 'the borrower'). Accordingly, the charge which the defendant executed over the said lands is what is commonly referred to as a third party charge. As the borrower made default in regularising its account with the plaintiff, the plaintiff caused its lawyers to recall the aforesaid facilities and demand repayment of the outstanding amount, by letter dated 22.10.2004. When the borrower failed to pay as demanded, the plaintiff caused its lawyers to issue a letter dated 3.11.2004, against the defendant demanding payment of the sum of RM12,772,438.22 (OD) and RM6,824,252.75 (RC) together with interest thereon from 1.10.2004 until full payment. The defendant was informed that if it failed to make payment within 30 days of demand, the plaintiff would resort to all remedies available to it, including an application to Court for sale of the charged lands.

The defendant not having paid the amount demanded from it, the plaintiff took steps to enforce its rights as chargee under the Code. These proceedings were commenced on 17.1.2005.

The defendant opposes the application on several grounds which I shall address shortly, but first I wish to deal with the provisions of law contained in the Code, under which the plaintiffs application is made. Section 148 of the Code sets out the remedies which are available to a chargee. S 148 (1) states that if default is made in the payment of the principal sum, interest or other moneys secured by a chargee, the chargee cmay give to the chargor notice in writing that the chargee will resort to all available remedies unless such default is remedied'.

Section 148 (2) goes on to state:

"(2) If the chargor fails to comply with the requirement of any notice lawfully given, the chargee shall be at liberty to apply to the High Court -

(a) for an order entitling him to enter into possession and be registered as proprietor of the charged land;

(b) to receive the rents and profits of the charged land; and

(c) for a sale of the charged land,

and the Court after hearing the evidence may make such order as in the circumstances seems just: provided .... (which are not relevant)", (my emphasis).

With that I turn to consider each of the defendant's grounds for opposing this application.

The defendant denied the plaintiffs claim to be paid interest because it says it never agreed to pay any interest and the plaintiff unilaterally varied the rate of interest without notice to the defendant. Following on from this argument the defendant contended that the plaintiffs demand for payment of the amount due was ineffectual, null and void because the plaintiff had demanded sums to which it was not entitled thereby demanding excessive sums from the defendant.

I find nothing in the point taken. The plaintiff had originally offered the banking facilities to the borrower in its letter of offer dated 23.7.1996 in which the rates of interest are clearly stated (see exhibit AG3 of Amy Gan Mi Mi's affidavit of 11.3.2005). Then by its letter of offer dated 6.10.1999 the plaintiff offered the borrower restructured facilities.