JUDGMENT

Yew Jen Kie JCA:

[1] Two appeals before us are:

(a) Civil Appeal No N-02(IM)-2107-10/2018 is in respect of property held under Hakmilik Sementara No H.S. (D) 43533, No Lot 16196, Bandar dan Daerah Seremban, Negeri Sembilan: It is an appeal by the Appellant against the decision of the learned Judicial Commissioner, given on 2 October 2018, in allowing the Respondent's application to set aside the Order for Sale dated 20 December 2017 with costs of RM5,000.00.

(b) Civil Appeal No N-02(IM)-2108-10/2018 is in respect of property held under Hakmilik Sementara No H.S. (D) 43532, No Lot 16195, Bandar dan Daerah Seremban, Negeri Sembilan: It is an appeal by the Appellant against the decision of the learned Judicial Commissioner, given on 2 October 2018, in allowing the Respondent's application to set aside the Order for Sale dated 20 December 2017 with costs of RM5,000.00.

[2] The Appellants in both appeals are the same Plaintiff and the Respondents are the same Defendant in the High Court suit. The parties will be referred to as in the High Court actions.

[3] The factual matrix of the case and the issues raised in this appeal are almost identical. Hence, the two appeals were heard together.

[4] The undisputed facts of the case showed that the Defendant had charged his two parcels of land, that is, Lot 16195 and Lot 16196 ["the Properties"] as security for the overdraft facilities that were granted by the Plaintiff to the borrowers, namely, Hui Say Boon and Loh Kim Meng, pursuant to the Letters of Offer both dated 2 July 1997 and the Facility Agreements both dated 9 July 1997.

[5] Unfortunately, the borrowers defaulted in the repayment of the loans under the facilities which prompted the Plaintiff, in exercise of its right as registered chargee, to initiate the foreclosure proceeding against the Defendant as chargor.

[6] The Plaintiff's Solicitors issued Form 16D dated 17 October 2017 to the Defendant at the Defendant's last known addresses including the address at No 25A, Jalan Mendaling, 43000 Kajang, Selangor [the Defendant's address as affirmed in the Defendant's affidavit dated 19 January 2018].

[7] The Defendant did not remedy the default specified in the Form 16D within the stipulated time as stated therein. This led the Plaintiff to file the Originating Summons both dated 28 November 2017 for an order for sale of the Properties.

[8] On 20 December 2017, in absence of the Defendant who was duly served with the notice of hearing, the Court granted the order for sale of the Properties ["the Sale Orders"].

[9] Later the Sale Orders were set aside upon application by the Defendant.

[10] The learned Judicial Commissioner allowed the Defendant's applications to set aside the Sale Orders for the following reasons:

a. That the foreclosure proceedings initiated by the Plaintiff was barred by limitation under s 21(1) of the Limitation Act 1953; and

b. That the Defendant's letters dated 5 June 2014 in which the defendant together with two other third party chargers had proposed to pay to the Plaintiff, a total sum of RM60,000.00 in order to discharge the Property, does not amount to an acknowledgment of debt under s 26 of the Limitation Act 1953.

The Law

[11] The Originating Summons herein is founded on s 156(3) of the National Land Code ["NLC"], which states:

256 Application To Court For Order For Sale

a. This section applies to land held under-

(a) Registry title;

(a) Registry title;

(b) the form of qualified title corresponding to Registry title; or

(c) subsidiary title,

and to the whole of any undivided share in, or any lease of, any such land.

b. Any application for an order for sale under this Chapter by a chargee of any such land or lease shall be made to the Court in accordance with the provisions in that behalf of any law for the time being in force relating to civil procedure.

c. On any such application, the Court shall order the sale of the land or lease to which the charge relates unless it is satisfied of the existence of cause to the contrar