Back
JUDGMENT
[1] There are two appeals before us related to foreclosure proceedings principally based on lien holders' caveat. The money extended by the respondent/Bank was not given to the owners of the title but was taken as security for facilities given to two third parties.
[2] The learned judge has written one judgment dealing with issues relating to the two third parties. This judgment should be read with the judgment of the High Court now reported as
[3] The learned judge had written a meticulous judgment. The learned counsel for the appellants have filed an extensive submissions to demonstrate the cause to the contrary, largely relying on the principles related to charge action and foreclosures. The Memorandum of Appeals in both the appeals which is the reflection of the submission of the appellant before us is reproduced to save courts time and it reads as follows:
(a) Memorandum of Appeal 'No 1775'
"1. The Learned Judge erred in law and fact in allowing the Respondent's Originating Summons dated 2nd day of April 2018 ("Respondent's Originating Summons") by amending the amount outstanding from RM1,767,749.09 to RM860,555.12 together with costs of RM8,000.00 to be paid by the Appellant to the Respondent.
2. The Learned Judge erred in law and fact in deciding that the Lien Holder's Caveat lodged on land held under GRN 74728, Lot 36707; GRN 74727, Lot 36706; GRN 74722, Lot 36701 and GRN 74726, Lot 36705 Mukim of Senai-Kulai, District of Johor Bahru, State of Johor ("Appellant's Land"), over which the Respondent had lodged the Lien Holder's Caveat on 27th day of May 2005 at the Jabatan Pendaftaran Tanah Johor Bahru with Presentation No: 16708/2005 ("Lien Holder's Caveat") can be executed by the sale of the Appellant's Land by way of a public auction under the National Land Code 1965 for settlement of the amount of RM860,555.12 as at 14th day of August 2018 by Pathiadass Ganaratnam (NRIC No: 491105-10-5757) ("Customer") under the Judgment dated 25th day of November 2009 ("Judgment") obtained by the Respondent in Suit No: 22-1329-2005 ("Suit No: 1329") at the Kuala Lumpur High Court.
3. The Learned Judge erred in law and fact in not deciding to dismiss the Respondent's Originating Summons by not taking into account of the following matters:
3.1 the said Judgment which purportedly is for an amount still owing by the said Customer to the Respondent under a Share Trading Facility (Credit Limit RM3,000,000.00) given by the Respondent to the said Customer under the Respondent's Letter of Offer dated 14th day of April 2015 which has to be read together with the Respondent's List Pertaining To Certain Share Trading Facilities at 26th day of August 2005 ("Original Share Trading Facility") is in actual fact no more owing by the said Customer to the Respondent as the same had been settled by part of the Fixed Term Loan Facility of RM 13,000,000.00 given by the Respondent to Vega Holdings Sdn Bhd ("Vega Holdings") under the Respondent's Letter of Offer dated 20th day of September 2005 which has to be read together with the Respondent's Supplementary Letter of Offer dated 18th day of November 2005, Vega Holdings' letter dated 23rd day of November 2005 and Respondent's letter dated 30 March 2006 ("Fixed Term Loan Facility") and also by the Share Trading Facility (Credit Limit RM650,000.00) given by the Respondent to the said Customer under the Respondent's Letter of Offer dated 20th day of September 2005 which has to be read together with the Respondent's letter dated 10 April 2006 ("Fresh Share Trading Facility").
3.2 if at all there is still any amount owing by the said Customer to the Respondent, it is not under the Original Share Trading Facility but under the Fresh Share Trading Facility.
3.3 the Respondent did not at any time obtain any judgment against the said Customer for the
