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JUDGMENT
GROUNDS OF DECISION
AGREED FACTS FOR TRIAL
[1] The Plaintiff was formerly known as MBf Finance Berhad, which was subsequently reconstituted and renamed as AmFinance Berhad and presently as Ambank (M) Berhad (8515-D). All rights and liabilities of MBF Finance Berhad have been fully vested in Ambank (M) Berhad, the present Plaintiff.
[2] The Plaintiff hall granted the following banking facilities to the 1st Defendant:-
[a] Term Loan Facility of RM1,340,000.00, governed by the Letter of Offer dated 26/7/1996 and the Loan Agreement dated 21/8/1996.
[b] Flexline Facility of RM5,000,000.00 governed by the Letter of Offer dated 6/8/1996 and the Loan Agreement dated 21/8/1996.
[3] As one of the securities for each of the said Facilities, the 2nd Defendant has executed 2 documents, both described as "Joint And Several Letter of Guarantee" and dated 21/8/1996, to secure each of the said Facilities respectively.
[4] The 1st Defendant had also charged certain lands to the Plaintiff as part of the securities for each of the said Facilities.
[5] The Plaintiff has on 9/9/1999 initiated foreclosure actions against the 1st Defendant's Lands charged to the Plaintiff to recover the amounts secured under the said Facilities by issuing a letter of demand and then subsequently the Notice of Chargee In Case of Default dated 21/9/1999 upon the 1st Defendant's failure to comply with the said letter of demand.
[6] Special Administrators were appointed over the 1st Defendant on 15/12/1999 under the
[7] The Plaintiff was informed by a letter dated 24/11/2004 from Pengurusan Danaharta Nasional Berhad [forwarded by the letter dated 25/11/2004 from the Provisional Liquidator, Datuk Tan Kim Leong, namely BDO Capital Consultants Sdn Bhd] that they have no objections to the Plaintiff's intention to foreclose on the Defendant's lands charged to the Plaintiff.
[8] The 2nd Defendant has received the letter of demand from the Plaintiff's solicitors, Messrs Peter Lo., to demand for the said shortfall.
[9] Special Administrators ware appointed over the 1st Defendant on 15/12/1999 under
[10] Immediately after the discharge of the Special Administrators, a Provisional Liquidator was appointed over the 1st Defendant.
[11] The aforesaid appointment of the Provisional Liquidator over the 1st Defendant, was pursuant to a Workout Proposal submitted by the said Special Administrators appointed under the
BACKGROUND
[1] This is a claim by the Plaintiff bank against the 2nd Defendant in Suit No: S22-16-2008 (hereinafter referred to as "the First Suit") and against the Defendant in Suit No: S22-40-2008 (hereinafter referred to as "the Second Suit") for the outstanding balance pursuant to two loan agreements, the fixed loan and the flexi loan facility.
[2] The Defendants' defences in both suits in essence are as follows:-
[i] That the amount claimed by the Plaintiff is disputed and is incorrect;
[ii] The Plaintiff's claim is time-barred;
[iii] The Letters of Guarantee executed was not a guarantee but an indemnity;
[iv] The Plaintiff is not entitle J to interest which is more than three years;
[v] The Defendants are discharged as guarantors.
[3] The 2nd Defendant also have a counterclaim against the Plaintiff for inter alia loss and damage suffered by the 2nd Defendant in Suit No. S-22-16 of 2008.
ISSUES
I find that there are 3 issues, which merited consideration namely:
[1] Whether the Plaintiff's claim is time-barred; and
[2] Whether the Plaintiff has proved its claim against the Defendants.
[3] Whether the Defendant's counterclaim is proved?
CONSIDERATION OF THE ISSUES
[1] Whether the Plaintiff's claim herein is time-barred?
[a] I find that under the Sabah Limitation Ordinance, the relevant limitation periods are Articles 41, 65 and 95
