JUDGMENT

Low Hop Bing J:

Application

[1] This is the plaintiff's application by way of an originating summons in encl (1) under O. 17 r. 1(1)(a) of the Rules of the High 1980 for relief by way of interpleader, seeking inter alia a determination as to whether the balance of the second and third defendants' housing loan should be released by the plaintiff to the first defendant vide the plaintiff's undertaking dated 23 March 1996 given to the first defendant pursuant to an irrevocable authority given by the second and third defendants to the plaintiff.

Factual Background

[2] The first defendant is the licensed developer of a housing project known as Condominium A'Farmosa Villa De Agua ("the Condominium") erected on land held under PT No. 61, HS(D) 3386, in the mukim of Pegoh, district of Alor Gajah Melaka.

[3]Vide sale and purchase agreement dated 29 September 1995 ("the SPA") the first defendant agreed to sell, and the second and third defendants agreed to purchase Lot No. B1/B/22-6, 22nd Floor, Block 1 together with an additional Lot No. B1/LG/05 of the Condominium ("the lots").

[4] To finance the purchase, the second and third defendants have obtained a housing loan of RM186,900 from the plaintiff ("the loan").

[5] Pursuant to a loan agreement and deed of assignment dated 4 September 1995 ("the LADA") the first and second defendants have absolutely assigned to the plaintiff their rights and title to the Lots. The plaintiff has made progress payments in accordance with the architect's certificates.

[6] Under s. 5.02 of the LADA, the second and third defendants have given the plaintiff express and irrevocable authority to advance or pay the whole of the loan or part thereof to the first defendant based on the architect's certificates. S. 12.10 renders the second and third defendants liable to pay all fees, costs and expenses on a solicitor-client basis.

[7] The plaintiff has vide letter dated 23 March 1996 given the first defendant an undertaking to release progress payments to the first defendant based on the architect's certificates.

[8] In consideration of the provisions in the LADA, vide letter dated 5 April 1996, the first defendant has given to the plaintiff a cross-undertaking and consent to inter alia refund all monies released by the plaintiff.

[9] As at 12 April 2005, the plaintiff has released a total sum of RM109,935 to the first defendant based on the architect's certificates.

[10]Vide letter dated 7 December 2004, the second and third defendants notified the plaintiff that they have terminated the SPA and requested the plaintiff not to release any further payment.

[11] The plaintiff has now applied for the above determination in relation to the release of RM76,965 which represents 41% of the balance of the loan.

Interpleader Relief

[12] At this juncture, it is appropriate for me to examine the nature and effect of the plaintiff's application under O. 17 r. 1(1)(a) which where relevant merits reproduction as follows:

O. 17 : Interpleader

Entitlement to relief by way of interpleader.

1(1) Where -

(a) a person is under a liability ... in respect of any money ... and he is, or expects to be, sued for or in respect of that .... money ... by two or more persons making adverse claims thereto,

(b) (not relevant)

the person under liability as mentioned in sub-paragraph (a) ... may apply by way of interpleader.

The above factual background shows that the plaintiff is the person referred to in O. 17 r. 1(1)(a) .