Gunn Chit Tuan J:

This was an appeal by Malaysian International Merchant Bankers Bhd. (the plaintiff)against the decision of the Senior Assistant Registrar given on 22 January 1987, refusing to grant an order that the plaintiff be at liberty to sign final judgment in this action against Datuk Mohd. Salleh b. Mohd. Yusof (the 1st defendant) for the sums prayed for in the statement of claim with interest up to the date of judgment and costs. The said appeal was heard by me in chambers on 29 October 1987, when I dismissed the appeal with costs. On 30 October 1987, the solicitors for the plaintiff wrote to the Senior Assistant Registrar under O. 56 r. 2 of the Rules of the High 1980, to apply for adjournment of the matter into open Court for further arguments. I agreed to adjourn the matter into open Court but the said solicitors later wrote to the Senior Assistant Registrar on 18 December 1987, stating that they would only repeat all the arguments already advanced before the judge in chambers and did not have any other matter for arguments in open Court. They also requested that the judge certify that he did not require further arguments in open Court. For some administrative reasons the said letter of 18 December 1987, was not brought to my attention until 9 March 1988, when the solicitors for the plaintiff wrote another letter to the Senior Assistant Registrar and I therefore issued a certificate worded slightly different from the ones usually issued under O. 56 r. 2(2) of the Rules of the High 1980.

In an affidavit affirmed by one Mohd. Razali P.N. Wong on 1 October 1986, (encl. 18)reference was made to the statement of claim dated 17 March 1985, in which it was averred that by a written agreement dated 9 May 1984, (the Loan Agreement), the plaintiff granted the 1st defendant a loan of RM2,300,000 to be repaid with interest and on the terms and conditions contained therein. In breach of the terms of the Loan Agreement the 1st defendant failed or neglected to repay the principal amount of the aforesaid loan together with interest on or before 11 May 1985, and the amount due from the 1st defendant as on 31 May 1985, was RM2,330,853.56¢. On or about 16 June 1985, a sum of RM400,000 was remitted towards total settlement of outstanding interest and the balance to account of payment of principal.

By a written undertaking dated 13 August 1985, one Raju Jayaraman Kerpaya, (the 2nd defendant), for the consideration stated therein, irrecovably and unconditionally undertook to pay the plaintiff the full sum of the loan and interest outstanding by 30 September 1985. The amount outstanding on 13 August 1985, was RM1,930,853.56 as principal and RM53,622 as interest. The amount due on 30 September 1985, was RM2,031,8484.14. The said written undertaking by the 2nd defendant was as follows:

1

Mr. Raju Jayaraman Kerpaya

c/o Jayaraman Ong & Co.

George Town Chambers

39 Beach Street

Penang

13 August 1985

Malaysian International

Merchant Bankers Berhad

4th Floor Bangunan MIDF

195-A Jalan Tun Razak

Kuala Lumpur

Dear Sirs

Loan of RM2.3 Million

From MIMB to Datuk Mohd.

Salleh B Mohd. Yusof

Loan Agreement

Dated 9 May 1984

Principal Outstanding

As at 31 July 1985:

RM1,930,853.56

Interest Outstanding

As at 31 July 1985: RM53,622

I understand that Datuk Mohd. Salleh b Mohd Yusof (DMSY) has defaulted in the repayment of all sums due under the above-said Loan Agreement. I understand that the outstanding amount is RM1,984,475.56 (consisting of RM1,930,853.56 principal outstanding and RM53,622 interest outstanding.)

In consideration of you forebearing to commence any legal or other proceedings to recover all sums due and outstanding from DMSY to MIMB, I hereby irrevocably and unconditionally undertake to pay you full sum of the loan and interest outstanding by 30 September 1985.

In the event that I do not pay the said sums by 30 September 1985, I hereby agree that MIMB will be at liberty to take such legal proceedings as they deem fit against, inter alia, myself.

Yours fa