JUDGMENT

Proceeding:

The plaintiffs' claims are as follows:-

(1) A Declaration that the Company's liability secured by the 1^st plaintiffs Land had been fully settled and memorandum of charge registered against 1^st plaintiff's Land dated 24.07.2986 under Memorial No. 00016190 is deemed to be fully satisfied and discharged;

(2) An Order directing the defendant to duly issue to the 1^st plaintiff a registrable Memorandum of Satisfaction of Charge for the purpose of discharging the said charge registered against the 1^st plaintiff's Land;

(3) An order directing the defendant to return to the 1^st plaintiff the original issued copy of the said Native Title no.013060869;

(4) The said sum of RM34,300.00 being money had and received by the defendants to the use of the 1^st plaintiff;

(5) To refund to the 2^nd, 3^rd, 4^th and 5^th plaintiffs, as chargers, the said sum of RM384,944.11 under Paragraph 12 hereof being the surplus of the proceeds of the public auction sale of Native Title No. 213113823;

(6) Statutory interest on the said sum of RM384,944.11 at the rate of 8% per annum from the date of judgment to the date of full payment;

(7) Such relief or other relief as this Honourable Court deems fit to grant; and

(8) Costs.

The defendant denies the claims on the ground that the 1^st plaintiff's company, namely Syarikat Kulambai Sdn Bhd, is still in debt to the defendant.

Background facts:-

The defendant granted a banking facility of RM200,000.00 to Syarikat Kulambai Sdn Bhd which had been wound up on 28.06.1996. As security for the banking facility, three parcels of native lands were charged to the defendant. These lands belong to the 1^st plaintiff (NT013060869), the 2^nd to 5^th Plaintiffs (NT 213113823), and one Nanih Binte Abah (NT 213126491). Upon default in the repayment of the banking facility the defendant commenced foreclosure proceedings of the charged lands. NT213126491

was sold by public auction on 08.11.1991 for the sum of RM71,500.00. NT 213113823 was sold by public auction on 12.11.2003 for the sum of RM445,000.00. NT013060869, the plaintiffs land, remains charged to the defendant.

By his letter dated 17.11.2003 the 1^st plaintiff requested from the defendant "Penyata Akaun bulanan bermula dari Januari 1990 sehinggahlah hari ini" ("Statement of Monthly Account from January 1990 until today"). One Abdul Lahap @ Wahab Bin Taif who is an officer of the defendant hand delivered to the 1^st plaintiff a floppy disk containing the Statement of Monthly Account requested for by the 1^st Plaintiff. That statement shows the outstanding amount due as at 30.9.2003 by Syarikat Kulambai Sdn Bhd as RM60,055.89.

So by simple calculation (RM445,000.00 less RM60,055.89) there is now a surplus of RM384,944.11 due to the 2^nd to 5^th plaintiff after the sale of their land for RM445,000.00 on 12.11.2003. And since there was nothing due to the defendant the sum of RM34,300.00 paid by Sabah Electricity Sdn Bhd as compensation to the defendant should be refunded back to the 1^st plaintiff and the 1^st plaintiff's charged land should be discharged and returned to the 1^st plaintiff. The basis for the plaintiffs' contention that the sum of

RM60,055.89 is accurate is that the 1^st plaintiff had applied for and approved by the defendant for the waiver of the interests due under the banking facility and that application had been approved.

What I have stated is the foundation of the plaintiffs' claims.

Issues:-

From the submissions from counsel and the evidence adduced, the determinative issues in my view are these:-

1. Did the defendant approve the application for the waiver of interests due under the banking facility by the 1^st plaintiff?

2. Was the statement of account in the floppy disk binding on the defendant?

Issue 1:-

Did the defendant approve the application for the waiver of interests due under the banking facility by the 1^st plaintiff?

As this contention forms the basis of the plaintiffs' case, the burden of proof is on them to prove that the defendant had agreed to waive all interes