JUDGMENT

Abdul Hamid Mohamad JCA:

In this notice of motion the applicant prays for an order to stay the execution of the judgment of the High Court dated 11 August 2000 until the appeal against that judgment is heard and decided upon. We dismissed the application.

An action was commenced in the High Court at Kuala Lumpur (Civil Suit No. D6-22-1211-97) by Bank Bumiputra Malaysia Berhad, (the former plaintiff) against the applicant claiming a sum of RM1,137,997.79 and costs. The action was based on a banking facility in the form of an "Irrevocable Letter of Credit" given by the respondent to the applicant.

The former plaintiff applied for a summary judgment. The senior assistant registrar allowed the application and gave judgment for the former plaintiff. The applicant appealed to the judge in chambers. On 31 March 1999, after hearing the appeal, the learned judge made the following order:

Court:

I have read the written submission and there appears to be an issue as to who and on whose authority the lienof RM1,046,200/- was released to third party and whether the person giving the instruction is an authorised person. The court requires evidence to be tested at the trial.

I accordingly allow the appeal with costs of RM1,800 all-in.

On 3 November 1999, the case came up for a date of hearing to be fixed. Counsel for the former plaintiff was present. Counsel for the applicant was absent. The court fixed 21 January 2000 for the hearing of the case with a note "(No postponement) one day."

On 21 January 2000, counsel for both parties were present. Respondent's counsel informed the court that the debt of the applicant company had been taken over by the respondent and that both parties were negotiating a settlement of the debt and applied for a mention date in two months.

The notes of proceedings recorded by the learned judge reads as follows:

If the matter cannot by then be settled, then the parties have decided to go under Order 33 r. (2) on the question whether the "lien"was intended to be a specific charge over the facility, or was of a general nature; and that by itself would decide the outcome of the liability on the quantum.

It must be emphasised that on that day the counsel for the applicant was present.

The learned judge adjourned the case to 1 March 2000 for mention.

On 1 March 2000, counsel for both sides appeared before the learned judge. The notes recorded by the learned judge reads:

Solicitors inform that no settlement reached and have decided to make a written submission on the point of law under Order 33 Rule 2 as to whether the liengiven in favour of the Plaintiff was a generalor specific in nature; and which would decide the issue on liability. Mr. Loy needs two weeks to have another round with his client towards settlement.

Again, the court adjourned the case to 22 March 2000 for mention.

On 22 March 2000, counsel for the respondent was present. The applicant's counsel was represented by a "pupil in chambers" who informed the court that the applicant's counsel wanted to discharge himself and required time to file the necessary papers.

The learned judge recorded as follows:

To 27th April 2000 (H) Final and also the discharge application to be heard on the same date.

On 27 April 2000, respondent's counsel appeared in court. The applicant company was not represented by counsel. A director of the applicant company appeared. He applied for postponement because the applicant's counsel had discharged himself. The counsel for the respondent had no objection. The court again postponed the case to 9 May 2000, again for mention to enable the applicant to engage another counsel and to fix a date of hearing.

On 9 May 2000, the respondent's counsel was present in court. The applicant was represented by a newly appointed solicitor, Mr. Richard Tee. This is what the learned judge recorded:

Mr. Vijay Kumar for the Plaintiff.

Mr. Richard Tee for the Defendant the newly appointed solicitors, who undertake to file a written submission for