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JUDGMENT
Abdul Wahab Said J:
[1] The plaintiff filed an application under against the defendant. The application, which is for the amount of RM531,410.60 incurred under an overdraft facility, was allowed by the senior assistant registrar on 20 October 2005.
[2] Sabah Bank Berhad had given the defendant the overdraft facility with a limit of RM16,800,000. By virtue of a vesting order dated 21 November 2000 all the rights of Sabah Bank Berhad were vested in the plaintiff. Thereafter the overdraft facility was restructured to a term loan facility of RM16,800,000. The defendant defaulted in payment. The plaintiff sent letters of demand for the amount owing. One of the properties charged to the plaintiff was sold and the proceeds utilised towards part settlement of the outstanding sum. The defendant remains indebted to the plaintiff for the amount of RM541,410.60.
The issues raised by the defendant are:
Firstly, whether the plaintiff's imposition of interest is excessive, arbitrary and contrary to public policy;
Secondly, whether the plaintiff has failed to prove loss in their claim for additional or default interest, being liquidated damages or penalty and
Thirdly, the plaintiff failed to provide sufficient particulars as requested by the defendant as regard's the plaintiff's claim.
[3] On the first issue, the defendant submitted that whilst the plaintiff can vary the interest rate from time to time subject to written notice being given, no such notice was given to the defendant. The interest which has been varied was also said to be excessive, arbitrary and contrary to public policy. The defendant denied receiving the plaintiff's letter dated 20 February 2001 about variation in interest rate.
[4] On the second issue, the defendant submitted that default interest on late payment at the rate of 1% per annum must be proved by the plaintiff pursuant to
[5] As for the plaintiff, on the first issue, it said in its submissions that due notice of the variation in the BLR has been given to the defendant as particularised in the various monthly statement of accounts sent to the defendant. The plaintiff claimed that it is entitled to vary the rate of interest and the notification of it could be sent by ordinary post.
[6] The plaintiff said that it is inconceivable that the defendant did not receive the notice since the notice was sent the defendant's address, the same address that appears in the last letter of offer dated 22 November 1999. The statement of accounts had been sent regularly to the defendant at the same address and the defendant had admitted making payments from time to time.
[7] The plaintiff submitted that the defendant's challenge on the interest rate is unfounded since it is agreed interest that has been incorporated in the facility agreement. The notice on variation of the interest rates have been served on the defendant and the defendant did not oppose or challenge it.
[8] On the second issue, the plaintiff submitted that the facility agreement contractually allows the plaintiff to charge interest and additional interest respectively and that the plaintiff's claim for default interest of 1% is not subject to proof of loss pursuant to
[9] On the last issue, the plaintiff submitted that throughout the facility the plaintiff has given the defendant monthly statement of accounts. Despite the production of the statement of accounts and a certificate to conclusively prove its validity, the defendant is unable to produce any evidence to contradict the accuracy of the said statements.
[10] After hearing learned counsels for the plaintiff and defendant, I decided that there are indeed no issues to be tried. The first
