JUDGMENT

Gunn Chit Tuan SCJ:

Nira Sdn. Bhd. (the appellant) had appealed against an order of the High Court at Kuala Lumpur made under s. 256 of the National Land Code 1965, that the lands held under Geran No. 4365 and CT No. 22086 for Lot Nos. 35327 and 4554 respectively, Mukim of Kuala Lumpur and charged to Malayan Banking Bhd. (the respondent) under the Wilayah Persekutuan Registrar of Charges Presentation No. 12,810/82, Jilid 264, Folio 62 and Presentation No. 18,715/82 Jilid 275, Folio 166, be sold by public auction on 10 March 1989, to satisfy the whole sum secured by the said charges which was due to the respondent as at 31 October 1988.

According to Mr. K. Chandra, Counsel for the appellant, the main grounds of appeal were the following grounds no. 2 and 3 in the memorandum of appeal:

2. The learned Judge erred in law and in fact in holding that there was a sum of RM17,339,452.43 due on the term loan as at 31 October 1988 and sum of RM2,571,605.96 due on the overdraft.

3. The learned Judge ought to have held that there was an error by the respondent in the calculation of the interest on the term loan.

Section 2.07 (b) of the Exhibit MBB1 states:

The interest chargeable between the date on which the full amount of the term loan shall have been disbursed, advanced or paid as aforesaid and the anniversary date of which shall be calculated on the full amount loan and all other sums then payable by the chargor shall be deemed to be due forthwith upon such date.

Section 2.07 (c) states:

In and for each succeeding year thereafter interest shall be calculated on the total amount of the monies due to the bank hereunder (whether for principal or interest) as at the last day of the preceding year and shall be deemed to be due on the 1st day of the year in respect of the year then commencing.

Respondent/plaintiff has calculated the interest on the balance outstanding at the end of each month.

With respect to the contention of Counsel on ground 2 above, it must be pointed out that the manager of the respondent's Kuala Lumpur main office had affirmed an affidavit on 27 October 1988, stating that the total balance sums due to Malayan Banking Bhd. as at 31 October 1988 were as follows:

(i) Term Loan Account

RM17,339,452.43 particulars of which are as follows:

Outstanding principal as at 30 June 1984 RM 7,929,779.23

Total overdue interest (26 June 1982 to 30 June 1984) RM 2,515,462.19

Outstanding sum due as at 30 June 1984 RM10,445,241.42

Add Total overdue interest from 1 July 1984 to

31 October 1988 RM 5,197,551.56

Sub - Total RM15,642,792.98

Add Total penalty interest from 1 July 1984 to

31 October 1988 RM 1,696,659.45

Amount due as at 31 October 1988: RM17,339,452.43 From 1 November 1988 interest at the default rate per annum of 1% plus prescribed rate (4% p.a. + BLR) on RM15,642,792.98 shall be added to the outstanding sum of RM17,339,452.4 to the date of full payment; and

(ii) Overdraft Account

RM2,571,605.96 with interest thereon at the rate per annum of 4% + BLR and at as additional 1% per annum on the overdraft in excess of the approved limited of RM2 million, both with monthly rests from 1 November 1988 to be date of full payment.

There was, however, no reply by the appellant to that affidavit and in the circumstance we could not see how the learned Judge could have come to any other finding except to hold that a sum of RM17,339,452.43 was on the term loan account as at 31 October 1988 and a sum of RM2,571,605.96 was also due the appellant's overdraft account on that date.

As regards ground 3 above, we again noted that the manager of the respondent's Kuala Lumpur main office had in another affidavit dated 23 August 1988, denied that there was any error in the computation of interest for the term loan as alleged by one Tan Kim Seng, the finance manager of the appellant, in his affidavit affirmed on 21 April 1988. The said manager pointed out that the appellant had written to the respondent and asked the respondent to workout th