JUDGMENT

Thomson LP:

This appeal arises from an attempt by a borrower of money to avail himself of the provisions of the Moneylenders Ordinance to avoid the repayment of money he has borrowed. This, however, is a Court of law and not a Court of morals and it is on that basis that the case must be decided. I would make the further observation that the case is probably unique in the history of litigation arising out of the law relating to moneylending in this country or in the United Kingdom because of the fact that at every stage of the transactions between them each of the parties has been attended and assisted by his solicitor.

The facts are not in dispute. The appellant ("the borrower") is the registered proprietor of a piece of land in Negri Sembilan and the respondent ("the moneylender") is a moneylender who at all material times held a licence under the Moneylenders Ordinance.

On 15 December 1960, the borrower executed a charge of the land in favour of the moneylender to secure a loan of a principal sum of $230,000 for a period of six months and then payable on demand with interest at the rate of 12%.

The principal sum was not repaid on demand and on 2 January 1962 the moneylender commenced proceedings by way of Originating Summons (Selangor Originating Summons No: 1 of 1962) for foreclosure and sale under the charge.

The borrower set up a great number of technical defences under the Land Code and the Moneylenders Ordinance but in the event the parties came to an agreement, which was reduced to writing, whereby the proceedings under the Originating Summons were discontinued on certain conditions and in pursuance of this agreement notice of discontinuance dated 23 August 1963, was filed on 9 September 1963.

By this agreement the parties undertook to discontinue the proceedings in Originating Summons No: 1 of 1962 and the moneylender agreed to forego all claims for interest on the original loan up to the day preceding the signing of the agreement and to execute a discharge of the charge of 15 December 1960. The borrower for his part undertook to execute a memorandum for a new loan of $230,000, to execute and deliver to the moneylender a fresh charge in respect of the land by way of security for this new loan and to pay interest at the rate of 70 per annum by monthly instalments.

The parties took steps to implement the agreement. These included the execution of a memorandum of loan under s. 16 of the Moneylenders Ordinance and of a charge of the borrower's land. This charge was executed on 23 August 1963, and was made to secure a loan of $230,000 with interest at the rate of 70 per annum and repayable on 23 August 1964.

The amount secured by the charge was not paid on the due date and on 24 September 1964, the moneylender issued the statutory notice under the provisions of the Land Code requiring payment of the principal and of interest up to 23 September 1964. That notice was served on the borrower but it was not complied with and the moneylender commenced the present proceedings for foreclosure and sale on 11 November 1964.

The borrower raised a great number of defences under the Moneylenders Ordinance, all of them of a purely technical nature. In the event, however, Ong J found that these were without merit and gave judgment in favour of the moneylender.

Against that decision the borrower has now appealed and it is impossible to refrain from observing, though this of course is not strictly speaking relevant, that if his appeal is successful he will depart rejoicing in the knowledge that he is under no legal liability to repay a sum of over $200,000 which he has borrowed. It is true that it would appear at first sight that he will also depart with a somewhat tarnished commercial reputation but as the successful hero of the case of Chai Sau Yin V. Liew Kwee Sam [1962]; [1962] AC 302 he may regard this risk with a certain equanimity.

The first group of grounds on which the borrower has attacked the transaction betw