JUDGMENT

THE APPLICATION

This is the defendant's application (Enclosure 36) for leave to apply to set aside the order for sale dated 20.1.95 and for a further order that the said order for sale dated 20.1.95 be set aside with costs.

CASE FOR THE APPLICANT/DEFENDANT

The defendant was an employee of the plaintiff until 23.8.83. In his affidavit in support of Enclosure 36 the defendant referred to the charge dated 1.4.85 which was created over property belonging to the defendant and he denied signing the said charge on the said date as he was no longer an employee of the plaintiff on that date. He admitted applying for a loan in 1982. In the circumstances he contended that the said charge on which the order for sale was premised was invalid and could not be enforced.

He also contended that the interest rate of 12% that was levied was not stipulated in the charge. Based on clause 5(a) of the charge document he contended that interest ought to be 4% only. On this basis he prayed for order in terms.

With regard to this late application he submitted that he only became aware of the said order for sale in May 1995.

CASE FOR THE RESPONDENT

The plaintiff's case was that the defendant who was its employee until 23.8.83 applied for a housing loan from the plaintiff, during his employment with the plaintiff. Based on the loan application dated 1.7.82 and signed by the defendant signifying his acceptance of the terms and conditions stipulated therein the plaintiff approved the loan application. A loan agreement dated 22.12.82 was then entered into between the National Electricity Board Co-operative Society Limited and the defendant. Clauses (vi) and (vii) of the said agreement state that the plaintiff as the employer of the defendant had granted a housing loan for a sum of RM316,310.00 and that as the housing loan was not sufficient to pay for the full purchase price, the plaintiff had consented to the defendant's request for a further loan from the said society. As a form of security for the loan the plaintiff, through its solicitors had the defendant execute the charge document sometime in 1982.

It was the plaintiff's case that the date of execution of the charge document was left blank, for purposes of stamping, to a later date. It is obvious from a perusal of the charge that it was only dated on 1.4.85.

The plaintiff argued that the defendant had not shown that the order for sale in consequence of the charge was not the charge which he had executed in favour of the plaintiff. The plaintiff also argued that as to when it was dated was immaterial. It was the plaintiff's case that the defendant had failed to demonstrate that there is a cause to the contrary pursuant to section 256(3) of the National Land Code 1965 (the NLC).

On the issue of the 12% interest charged the plaintiff argued that it was entitled to charge the said interest. Referring to clauses 6(a) to (d) of the said charge the plaintiff argued that it was entitled to increase the interest charged and that the said terms and conditions had been accepted by the defendant when he executed the charge. In any case by letter dated 29.3.84 (exhibit A6 to Enclosure 26A) the plaintiff had given notice to the defendant of this rate of interest of 12% per annum on the outstanding balance until full settlement of the loan.

COURT'S FINDINGS

The plaintiff in its application for the order for sale of the property belonging to the defendant stated that a loan was granted to the defendant as an employee of the plaintiff and that a charge was created in favour of the plaintiff on 1.4.85. It was on these facts that the order for sale was granted. As it turned out and the truth of the matter is that the charge was dated and validated more than a year after the defendant had left the services of the plaintiff. The plaintiff had not disclosed the truth when applying for the order for sale. The Court was misled. The plaintiff's hands are tainted with iniquity and its conduct falls squarely within th