JUDGMENT

Azhar Ma'ah J:

The defendant is the registered owner of Land Lot 3954, Geran 1695, Mukim Gali, Daerah Raub, Pahang which she mortgaged to the plaintiff in order to secure a loan of RM100,000 granted by the latter to a third party (the borrower).

The borrower failed to repay the loan with accrued interest. As a result the plaintiff through their solicitors, issued the statutory notice in Form 16D under s. 254 of the National Land Code 1965 to remedy the breach within 30 days of the receipt of the said notice failing which the plaintiff would apply for an order for sale.

The defendant chargor neglected to remedy the breach specified in the statutory notice. This led the plaintiff chargee to taking out an Originating Summons for an order to sell the land by public auction. The originating summons was filed on 25 September 1996 together with a supporting affidavit of the plaintiff chargee's branch manager which was sworned on 17 September 1996. The outstanding sum due to the plaintiff chargee as at 26 August 1996 was said to be RM253,585.02 with further interest thereon at an additional daily rate of 12.25% per annum.

In opposition to the plaintiff chargee's application counsel for the defendant chargor raised two issues. Firstly, the court's attention was drawn to the charge instrument. At the top right hand corner of the first page of the document there is an endorsement that reads "Gadaian Asal bersetem RM500 untuk pinjaman sebanyak RM100,000". In this connection counsel further referred to cl. 39 of the charge annexure. The relevant portion of the clause reads "In the event the total moneys and liabilities due and owing to the chargee hereunder shall at any time exceed the principal limit or the limit for which the security created shall for the time being have been stamped to secure, the chargee shall be at liberty at any time to, without further reference to and without the consent of the chargor, upstamp the security, created herein for the excess amount ... ."

It was submitted for the defendant chargor that there was no evidence of upstamping by the plaintiff chargee to support the latter's claim of additional sum of money having been advanced to the borrower in excess of the original RM100,000 for which the charge was created.

The second issue raised by the defendant chargee was with regard to the affidavit of the plaintiff chargor's branch manager filed in support of the originating summons. Counsel pointed out that the deposition was made and sworned on 17 September 1996 preceding the originating summons that was filed on 25 September 1996. Citing Arab Malaysian Finance Bhd, v. (1) Serajudin Mohd Ismail (2) Hjh Mas Normah Mas Junid Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur (Bahagian Sivil), Saman Pemula No.: S2- 24-680-1997 (unreported) it was submitted that the affidavit was defective and thus inadmissible. In that case by reason of the supporting affidavit sworned 1 week prior to filing of the Originating Summons it was held by His Lordship Dato' RK Nathan that such affidavit was a nullity and its effect incurable. He therefore dismissed the originating summons.

For convenience and to avoid futility in the court's finding it would be appropriate for me to deal with the second issue first.

In Arab Malaysian Finance Bhd., the learned judge in his judgement made a specific reference to O. 41 r. 1 of the Rules of the High Court which seemed to be the pivot of his decision, O. 41 r. 1 reads:

Subject to paragraphs (2) and (3) every affidavit sworn in a cause or matter must be entitled in that cause or matter.

Taking up from this proviso what is required in an affidavit that is to be used in support of an originating summons is a title to be given to it. The title, to my mind should relate to the subject matter of the cause of action. In the instant case the intitlement on the front page of supporting affidavit reads:

DALAM MAHKAMAH TINGGI MALAYA DI TEMERLOH

DALAM NEGERI PAHANG DARUL MAKMUR

(BAHAGIAN SI