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arrFiles=new Array();arrFiles[0]=new Array(636,"http://www.kehakiman.gov.my/jugdment/fc/latest/01-19-2004(W).htm","2005-08-23","DALAM MAHKAMAH PERSEKUTUAN MALAYSIA","","","User Normal administrator 2 2 2005-07-22T04:19:00Z 2005-08-11T00:57:00Z 2005-08-11T00:57:00Z 1 1892 10786 MIMOS Berhad 89 25 12653 10.2625 MicrosoftInternetExplorer4 DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. 01-19-2004 (W) ANTARA BANGUNAN NG LEONG SING SDN BHD       …       PERAYU                                                      DAN PENTADBIR TANAH DAERAH WILAYAH PERSEKUTUAN, KUALA LUMPUR                  …       RESPONDEN (Dalam perkara Kes RujukanTanah No. S5-15-05 Tahun 1993 Dalam Mahkamah Tinggi Malayadi Kuala Lumpur Antara Bangunan Ng Leong Sing Sdn Bhd                   …       Pemohon                                                        Dan Pentadbir Tanah Daerah Wilayah Persekutuan, Kuala Lumpur                                …       Responden) CORAM:              ABDUL MALEK AHMAD, PCA                              PAJAN SINGH GILL, FCJ                              ALAUDDIN MOHD. SHERIFF, FCJ JUDGMENT OF THE COURT                    Thesubject property comprises three contiguous lots namely Lots 143, 144 and 146Mukim Bandar Kuala Lumpur of limited commercial land with a total area of about29,921.6 square feet with direct frontage onto Jalan Ampang about one hundredmetres west of the junction at Jalan P. Ramlee and Jalan Yap Kwan Seng.   The compulsory acquisition was gazetted on 10 th May 1990 for the purpose of the renovation and extension of the Bank SimpananNasional headquarters.   The subjectproperty is located in the Golden Triangle where skyscrapers abound either ascondominiums, offices, hotels or banks. 2.                 Althoughthe appellant contended that the market value was RM 480 per square foot, therespondent only awarded RM 300 per square foot.   The High Court increased the award to RM 350 per square foot on 3 rd May 1996.   Hence this appeal. 3.                 Theappellant had four comparables while the respondent had seven.   The learned High Court Judge found that onlytwo of the appellant’s four comparables and only one of the respondent’s sevencomparables could be considered as the others were not appropriate. 4.                 Inhis outline submissions, learned counsel for the appellant referred to two ofhis four comparables which were along Jalan Ampang.   These were the two comparables considered bythe learned High Court Judge.   The firstwas Lots 43, 44, 45 and 46 of section 44 which was sold for RM 420.75 per squarefoot on 6 th July 1990 and the second was Lots 43, 44, 133 and 135 ofsection 58 sold for RM 380 per square foot on 20 th March 1990,according to the private valuer, but 3 rd November 1989 according tothe government valuer.   The latter wasthe common comparable. 5.                 Learnedcounsel submitted that the trial High Court Judge erred when he allowed onlyfive per cent over the price of RM 380 per square foot in favour of the subjectproperty for increase in value for the time factor, using the sale dates forthe two comparables in computing the monthly rate of increase, in view of the differencein the sale date of the second comparable between the two valuers.   We found this difference to be of noconsequence as it was only four months apart. 6.                 Employingthe method of dividing the differences in price by the number of months betweenthe sale dates, the rate of increase per month would be RM 5 per month, theresult of RM 40 divided by eight months.   Given that the difference in time between the sale date of the secondcomparable and the acquisition date is slightly more than six months, thefigure in favour of the subject property would be RM 30 per month over the RM350 for the second comparable making it closer to ten per cent than five percent. 7.                 Learnedcounsel also pointed out that the learned High Court Judge accepted that asmaller land attracts a higher value than a larger land relying on Ng TiouHong v Collector of Land Revenue, Gombak (1984) 2 MLJ 35 where this courtheld that the big area of the land, its location and nature do not render itmarketable as would the smaller lots in the neighbourhood. 8.                 Themanner the learned High Court Judge assessed the comparables was stronglyattacked by learned counsel for the appellant.   Considering that the subject property was only 29,921.6 square feetcompared to the first comparable’s 101,004.75 square feet and the secondcomparable’s 142,114.5 square feet, learned counsel argued that the learnedHigh Court Judge arbitrarily arrived at the figure of five per cent for size infavour of the subject property when comparing it with the second comparablewhen the percentage ought to be higher, in fact as high as twenty percent.   He reiterated that the learnedHigh Court Judge ought to have first ascertained the adjustment for size withregard to the first comparable in relation to the second comparable. 9.                 Hegrounded his submissions as regards the higher percentage from the observationsmade by the learned High Court Judge in his judgment and from the informationavailable in the record of appeal in particular: (a)      the learned High Court Judge attributed the price difference ofRM40   per square foot between the firstand second comparables to the issue of time only; (b)      the first comparable is about 30 per cent smaller than thesecond comparable; (c)      the price for the first comparable was RM420 per squarefoot.   The price for the secondcomparable was RM380 per square foot; (d)      the learned High Court Judge noted that the first comparable hadplanning approval with a higher plot ratio than the subject property which alsohad planning approval.   The learned HighCourt Judge deducted 15 per cent off the price of the first comparable withregard to the subject property. As the second comparable did not even have anapplication for planning approval, it would mean that if it could still attracta sale price of RM380 per square foot, the necessary adjustment in favour ofthe first comparable, if it had not yet been sold, would have been at least 15per cent over RM380 per square foot, hence taking the price to RM437 per squarefoot; (e)      the learned High Court Judge deducted 15 per cent for locationof the subject property when comparing with the location of the secondcomparable which was within the Golden Triangle.   Given that the first comparable is locatedeven further, a slightly higher deduction of 20 per cent from the price ofRM380 per square foot would give a figure of RM304 per square foot; (f)       when the sum of RM40 per square foot for time as given by thelearned High Court Judge is added to the figure of RM304 per square foot, itwould put the figure at RM344 per square foot.   However, it is known that the first comparable was sold at RM420 persquare foot.   Hence, the remainingdifference of RM76 per square foot can only be attributed to size.   This figure of RM76 is equal to 20 per cent ofthe sale price of RM380 per square foot for the second comparable; (g)      hence, the learned High Court Judge erred when he held that the20 per cent as stated by the appellant’s valuer to be excessive since theincrease for reason of favourable size cannot therefore be less than 20 percent in any case given that the subject property is not bigger than the firstcomparable.                                      10.               Thelearned High Court Judge, he added, when comparing the subject property withthe first comparable, deducted 15 per cent off the price of RM420 per squarefoot for the first comparable on the ground that the first comparable wasapproved for a higher plot ratio than the subject property.   It was respectfully submitted that thelearned High Court Judge erred on this point because whilst the approved plotratio for the first comparable was 5.27, the plot ratio of 4.07 for the subjectproperty was when the approval was for a 14 storeyed building only.   The approval for the subject property waslater revised and approved for a 17 storeyed building.   Hence, the learned counsel for the appellantargued that the deduction of 15 per cent is inaccurate and ought to have beenmuch lower. 11.               Theappellant’s valuer had allowed a figure of 15 per cent in favour of the secondcomparable because it is better located being on the side of Jalan Ampang whichcoincides with what is commonly known as the Golden Triangle.   This has been accepted by the learned HighCourt Judge. 12.               Learnedcounsel for the appellant further submitted that the learned High Court Judgewas correct in adding 10 per cent to the price of RM380 per square foot infavour of the subject property since the subject property already had planningapproval whereas the second comparable did not. 13.               Basedon the foregoing, he said, there is a total of 25 per cent over the price ofRM380 per square foot for the second comparable in favour of the subjectproperty, that is to say, 10 per cent for time, 10 per cent for planning and 20per cent for size all in favour of the subject property less 15 per cent forlocation against the subject property.   This would place the value of the subject land at RM475 per squarefoot.   However, before us, learnedcounsel conceded that the award should be five per cent higher than the RM380,namely RM399 per square foot. 14.               Thelearned Senior Federal Counsel for the respondent replied that the learned HighCourt Judge had adopted the normal considerations for land acquisition casesfor market value with the usual adjustments based on his experience andknowledge relying on Hajjah Halimah binte Hussain & Anor. v. Collectorof Land Revenue, Kuantan (1981) 2 MLJ 12 where at page 15 it is stated:           “Theissue before the learned judge was, what was the value of the land at thematerial date which was May 24, 1973?   Value must mean market value, which in turn means the price which awilling seller, not obliged to sell, might reasonably expect from a willingpurchaser with whom he was bargaining for sale and purchase of the land ( NanyangManufacturing Co. v C.L.R. Johore (1954) M.L.J. 69 .   It is plain from the notes of evidence andsubmissions and from the judgment that everybody was aware that the best way ofdetermining this amount is by looking at sales of comparable lands in thevicinity at or about the material date.           Whatare the questions before us?   Thequestions before an appellate court are usually different from those before acourt of first instance.   A court offirst instance generally speaking is looking for truth, whereas an appellatecourt is looking for error.           Inthe case of an appeal against the alleged inadequacy of the value put on landby a trial judge, the questions before us, as explained in Collector ofStamp Duties v. Ng Fah In & Ors (1981) 1 MLJ 288, heard in the sameweek as this one are: in determining the value, has the learned judge acted ona wrong principle, or misapprehended the facts, or has he for some reason madea wholly erroneous estimate of the value of the land?   It is not enough if only there is a balanceof opinion or preference one way or another: the scale must go down heavily onthe ground of insufficiency against the allegedly low value put on the land bythe learned judge.           Weshould be reluctant to interfere with the learned judge’s award – because helives in Kuantan not far from the land, and because out of respect for hislocal knowledge and experience.”.                  15.               However,he conceded that the learned High Court Judge had contradicted himself fordownward adjustment for size.   Hereminded the court of the pipeline encumbrance under the subject property whichwould cause the value to go down five per cent leaving us with the same amountas decided by the learned High Court Judge.   He stressed that we should not be concerned with mathematicalcalculations.   The swift reply fromlearned counsel for the appellant was that the pipeline could not be removed. 16.               Wehave looked at the affidavits and the valuation reports and have considered thearguments and the authorities.   We tooknote that the pipeline had been constructed in the early part of the twentiethcentury and, being in fact one of the oldest water pipelines in the countrystill supplying water, it has never been and cannot be regarded as anencumbrance. 17.               Wefully agree that the learned High Court Judge had fallen into error when makingadjustments for size and since learned counsel for the appellant had concededbefore us to RM399 per square foot, which is based on five per cent above RM380per square foot which was awarded for the second comparable, we feel that thisis a fair amount in these circumstances. 18.               Theappeal is accordingly allowed with costs.   The award of RM350 per square foot is increased to RM399 per squarefoot.   The deposit is refunded to theappellant. Dated 29 th July 2005.                                                                                                                              (ABDULMALEK AHMAD)                                                                                 PRESIDENT                                                                 OF THE COURT OF APPEAL                                                                                MALAYSIA Date of Hearing:            25 th January 2005 Date of Decision:                    29 th July 2005 Counsel: Ajit Kumar Hastir for the appellant (Solicitors:   M/s Watson Peters & Mohd Fuad) Dato’ Mohd Zaki Md Yasin, Senior Federal Counsel,for the respondent (Attorney-General’s Chambers)",35);arrFiles[1]=new Array(637,"http://www.kehakiman.gov.my/jugdment/fc/latest/02-13-2003(W).htm","2005-08-23","DALAM MAHKAMAH PERSEKUTUAN MALAYSIA","","","administrator Normal administrator 2 1504 2005-06-14T06:52:00Z 2005-08-11T01:12:00Z 2005-08-11T01:12:00Z 1 4530 25826 Kerajaan Malaysia 215 60 30296 10.2625 MicrosoftInternetExplorer4 DALAM MAHKAMAHPERSEKUTUAN MALAYSIA (BIDANG KUASARAYUAN) MAHKAMAH PERSEKUTUANRAYUAN SIVIL   NO. 02-13-2003 (W) ANTARA PERWIRA HABIB BANK MALAYSIA BERHAD        …   PERAYU DAN LUM CHOON REALTY SDNBHD                     …   RESPONDEN (DALAM PERKARARAYUAN SIVIL NO. W-02-302-1996 DALAM MAHKAMAHRAYUAN MALAYSIA DI KUALA LUMPUR ANTARA LUM CHOON REALTYSDN. BHD.                             …   PERAYU DAN PERWIRA HABIB BANK MALAYSIA BERHAD …   RESPONDEN) CORUM: Steve Shim Lip Kiong(Hakim Besar Sabah & Sarawak ) Abdul Hamid bin Hj.Mohamad (HMP) Pajan Singh Gill(HMP) GROUNDSOF JUDGMENT           This is an appeal by the chargeeagainst the decision of the Court of Appeal in allowing the Respondent’sapplication to set aside an order for sale obtained by the chargee on 25 th of June 1992.           We do not propose to deal at lengthwith the chronology of events in respect of the matter as this is well laid outin the judgment of the Court of Appeal report in [2003] 5 AMR 577.   Leave was given by this Honourable Court on23.9.03 on 3 issues of law namely – (1) Whether or not the failure to state theprecise amount due to the Chargee in the letter of demand preceding thestatutory notice under the National Land Code, 1965 would render an applicationfor an order for sale of the charged land defective. (2) Whether or not the failure of a Chargee tocomply with the provisions of 0.83 r3(3)(c) and 0.83 r.3(7), Rules of the HighCourt by not stating:- (i) the amount of interest in arrears as at the dateof the Originating Summons; (ii) the amount of daily interest. wouldrender an Order for Sale defective and      to be set aside. (3) Whether the decision of the Court of Appealin holding that there had been non-compliance by the Chargee with the provisionof 0.83 r.3, Rules of the High Court, to wit, by including in the sum claimedas due in the Order for Sale, interest, notice of variation of which had notbeen given, and thus holding that the Order for Sale was defective, was inconflict with the decision of the Federal Court in Low Lee Lian v Ban HinLee Bank Bhd [1997] 1 MLJ 77.                To our minds the fundamental issue inthis appeal is the applicability of the provision of 0.83 r. 3(1), r. 3(3) andr. 3(6) and (7), Rules of the High Court, 1980 to an application for an orderseeking enforcement of a charge registered under the National Land Code by wayof an order for sale.   The order for salewas made pursuant to the chargee’s application by way of an Originating Summonswherein the principle reliefs prayed for were inter-alia –           (a)   that the land held under Perakuan PendahuluanMengenai Hakmilik, Pegangan Nos: 288, 289. 294 and 302 and Geran Nos: 4559 and4755 Lots 292 and 3385 Mukim 13 Daerah Timur Laut, Pulau Pinang (hereinafterreferred to as “the said lands”) charged to the Plaintiff under a First ChargePresentation No. 10464/82, Volume 243 Folio 140 and Second Charge PresentationNo. 13398/83 Volume 282 Folio 25 registered by the Pendaftar Hakmilik Tanah,Pulau Pinang on the 6 th day of August 1982 and 1 st day ofNovember 1983 respectively be sold by public auction under Section 256 of theNational Land Code 1965 to satisfy the sum of 47,884,178.68 due and owing tothe Plaintiff under the First Charge and Second Charge as at the 26 th day of November, 1986 together with interest thereon at a rate per annum, whichis 6% above the Plaintiff’s Base Lending Rate currently at 10.5% per annum onmonthly rests with effect from the 27 th day of November 1986 untildate of full settlement; (b) that a date be specified on which such saleshall be held being a date not less than one (1) month from the date of theOrder; (c) that within seven (7) days of the sale ofthe said lands the Defendant do deliver vacant possession of the said lands. Counsels for Appellant andRespondent on both sides argued at length on the legal impact of non-complianceof these provisions of 0.83 r. 3(3), r.3(6), and r.3(7), R.H.C. 1980 relatingto the order for sale.                    We are not unaware that there has beenmuch judicial agitation on this issue of compliance of 0.83 r. 3(1), r. 3(3),r. 3(6) and r.3 (7), R.H.C. 1980 and a divergence of opinion on theseprovisions in the context of an order for sale under the National Land Code.           The cases of Diamond Peak Sdn Bhd v UnitedMerchant Finance Bhd [2003] 2 CLJ 8, Maimunah binti Megat Montak vMayban Finance Bhd [1996] 2 MLJ, Citibank N.A. v Ibrahim bin Othman [1994] 1 AMR 7, Perwira Affin Bank Bhd v Tan Tian Ser [1995] 2 CLJ 133 and LowLee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77, Chong KeatRealty Sdn Bhd v Ban Hin Lee Bank Bhd   [2003] 4 AMR 421 were among the decisions cited by the respectivecounsels on this issue.               For the record O. 83 r. 1, r. 3(1), r.3(3) and r. 3(6) and r.3(7) of the Rules of the High Court, 1980 reads asfollows – “1.(1)   This Order applies to any action (whetherbegun by writ or originating summons) by a chargee or charger or by any personhaving the right to foreclose or redeem any charge, being an action in whichthere is a claim for any of the following reliefs namely – (a) payment of moneys secured by the charge; (b) sale of the charged property; (c) foreclosure; (d) delivery of possession (whether before orafter foreclosure or without foreclosure) to the chargee by the charger or byany other person who is or is alleged to be in possession of the property; (e) redemption; (f) reconveyance of the property or its releasefrom the security; (g) delivery of possession by the chargee. 3.(1)   The affidavit in support of the originatingsummons by which an action to which this rule applies is begun must comply withthe following   provisions of this rule. Thisrule applies to a charge action begun by originating summons in which theplaintiff is the chargee and claims delivery of possession or payment of moneyssecured by the charge or both. 3.(3)   Where the plaintiff claims delivery ofpossession the affidavit must show the circumstances under which the right topossession arises and, except the Court in any case or class otherwise directs,the state of the account between the charger and chargee with particulars of – (a)   the amount of the advance; (b)   the amount of the repayments; (c)the amount of any interest or instalments in arrear at   the date of issue of the originating summonsand at the date of the affidavit; and (d)   the amount remaining due under the charge. 3.(6)   Where the plaintiff claims payment of moneyssecured by the charge, the affidavit must prove that the money is due andpayable and give the particulars mentioned in paragraph (3). 3.(7)   Where the plaintiff’s claim includes a claimfor interest to judgment, the affidavit must state the amount of a day’sinterest.”           Whilst, applications made pursuant tos. 256 of the National Land Code read together with s. 257 of the National LandCode provides for matters to be dealt with by order for sale.   The relevant sections of 256 and 257 read asfollows – “(1)   This sectionapplies to land held under – (a) Registry title; (b) The form of qualified title corresponding toRegistry title; or (c) Subsidiary title, Andto the whole of any divided share in, or any lease of, any such land. (2) Any application for an order for sale under thisChapter by a chargee of any such land or lease shall be made to the Court inaccordance with the provisions in that behalf of any law for the time being inforce relating to civil procedure. (3) On any such application, the Court shall orderthe sale of the land or lease to which the charge relates unless it issatisfied of the existence of cause to the country.”           Section257 reads – “(1)   Every order for sale made by the Court undersection 256 shall [be in Form 16H and shall]- (a)   provide for the sale to be    by public auction; (b)require the sale to be held on, or as soon as may be after, a date specifiedtherein, being a date not less than one month after the date on which the orderis made; (c)   specify the total amount due to the chargeeat the date on which the order is made; … (d)   require the Registrar of the        Court to fix a reserve price for thepurpose of the sale, being a price equal to the estimated market value of theland or lease in question.”                            We have noticed in the course of thehearing that there is with the exception of Perwira Affin Bank Bhd v Tan TianSer (supra) a similar ethos echoed in the judgments cited a momentago.   In these judgments there appears tobe a mandatory requirement on the part of the chargee to comply with therequirements of 0. 83 r. 3(3) to (6) R.H.C. 1980 when enforcing a chargeregistered under the Code by way of an order for sale, regardless of the reliefclaimed.             Before we proceed to comment on thedecision of Abdul Aziz Mohamed J. (as he then was), in Perwira Affin BankBhd   (supra) special mention mustbe made in respect of the case of Chong Keat Realty (supra) whichseemingly regards the non-compliance of 0.83 r. 3(3) R.H.C. 1980 as not afundamental flaw.   This however does notappear to be so on, a curial scrutiny of the case.                In Chong Keat Realty (supra) when the Originating Summons in respect of the foreclosure proceedingswas heard the Defendant, who had retained Counsel offered no resistance norfiled any affidavit in opposition for the non-observance of 0. 83 r. 3 R.H.C.1980.   The High Court in that instancethen granted an order for sale.   Some 8years later, the Defendant filed an application to set aside the order for saleciting as a principal ground that the order for sale granted was fundamentallyflawed for non-compliance of 0.83 r. 3 R.H.C. 1980.           Gopal SriRam JCA in dismissing the appeal of the Defendant at the Court of Appeal hadthis to say at page 424 – “Now,as a first step to deciding this appeal, it is essential that the principleapplicable to the facts must be identified.   To this end, it is important to notice a feature of this case that is ofcritical importance.   This is not a casewhere the impugned order was obtained ex parte the appellant.   It was not an order made in default of theappellant’s appearance.   The order herewas made inter partes.   The appellant wasvery much present by its advocate at the hearing of the bank’s summons toforeclose.”           His Lordship continuedfurther and stated at page 427– “Nowlet us take this very case.   Here we havea situation where the defendant to foreclosure proceedings enters andappearance, instructs counsel who attends the hearing in chambers and raises noopposition whatsoever to the making of the order.   Nothing is said about the affidavit beingdefective.   Then, after the passage ofsome eight years it comes forward with the argument that the order was made ona defective affidavit and that it ought therefore be set aside.   In our view the appellant’s conduct amountsto an abuse of the court’s process.   Ifaccepted, it would be an affront to justice.”           To digress for a moment.   In the course of delivery of his judgment in ChongKeat Realty (supra) his Lordship made certain observations on thedecision of the Court in Diamond Peak Sdn Bhd v United Merchang FinanceBhd [2003] 2 AMR 637, and stated – “Learnedcounsel for the appellant placed much reliance upon the decision of this courtin Diamond Peak Sdn Bhd v United Merchant Finance [2003] 2 AMR637 in support of his submission that neither long and inordinate delay nor thefact that the order for sale was made in the presence of the appellant’scounsel could detract from the invalidity of the order occasioned bynon-compliance with the mandatory provisions of RHC Order 83 r 3.   We have carefully examined that case and findit readily distinguishable from the present.   In Diamond Peak , the principal ground of complaint was thebreach by the chargee of the mandatory provisions of s 257(1)(b) of theNational Land Code 1965.   This Courtfound this complaint to be entirely justified.   It accordingly set aside the order for sale despite a delay of six yearson the part of the chargor in making its application and despite the orderhaving been made in the presence of the chargor’s counsel.   This is entirely in keeping with theprinciple enunciated by Mohd Azmi FCJ in Badiaddin and nodifficulty is thereby occasioned.   However, this court also relied on the chargee’s failure to observe themandatory requirements of RHC Order 83 r 3 as an added reason for setting asidethe order for sale.   This was not a pointstrictly necessary for the outcome of the case on its merits.   It is therefore pure obiter.”           Withrespect to his Lordship’s observation in the case of Diamond Peak Sdn Bhdv United Merchant Finance (supra) the decision of the Court in DiamondPeak Sdn Bhd (supra) was based on two issues that were argued andadjudicated upon by the Court of Appeal.   The first was whether the order for sale of the Appellant’s property byway of public auction pursuant to s. 257(1)(b), of the National Land code wasinvalid for non-conformity with s. 257(1)(b) of the National Land Code andsecondly, whether the Respondent failed to comply with 0.83 r.3(3), (c) and (6)of the Rules of the High Court, 1980.           The Courtof Appeal in Diamond Peak Sdn Bhd (supra) allowed the appeal onboth the above-mentioned grounds.   Therewas no question in the said judgment that the dicta relating to 0.83 r.3(3),(c) and (6), R.H.C. 1980 was purely ‘obiter’.           For goodmeasure we choose to reproduce this aspect of the judgment – “Next, on the issue ofnon-compliance with Order 83 r 3(3)(c) and (6) of the RHC.   The relevant rules state as follows: 3.(3)   Where the plaintiff claims delivery ofpossession the affidavit must show the circumstances under which the right topossession arises and, except where the Court in any case or class otherwisedirects, the state of the account between the charger and chargee withparticulars of – (a) … (b) … (c) the amount of any interest or instalments inarrear at the date of issue of the originating summons and at the date ofthe affidavit; (d) … (6) where the plaintiff claims payment of moneyssecured by the charge, the affidavit must prove that the money is due andpayable and give the particulars mentioned in paragraph (3). (7) Where the plaintiff’s claim includes a claim forinterest to judgment, the affidavit must state the amount of a day’sinterest.   (emphasis added). The originating summons of therespondent of March 20, 1986 concerns claim by the respondent under paragraph(6) of Order 83 r 3 of the RHC.   By thesaid paragraph, the respondent is required to satisfy the requirements inparagraph (3)(c) thereof in that the originating summons and the affidavit muststate the amount of any interest or instalments in arrear as at the date of theissue of the originating summons and the date of the affidavit. Apart fromthat, paragraph (7) needs also to be complied with, though here the appellantdid not specifically raise it as an issue. The originating summons in thiscase was issued and the affidavit in support was dated on March 20, 1086respectively.   However, the figures givenin the summons and the affidavit relate to the outstanding sum together withoverdue interest due and owing by the appellant to the respondent as at January17, 1986 with further interest to be calculated from January 18, 1986 till dateof full payment, and not the position as at March 20, 1986 as so required byparagraph (6) read with paragraph (3)(c) of Order 83 r. 3 of the RHC.   The affidavit fails to state the amount of aday’s interest as so required by paragraph (7) thereof.   There was however, a supplementary affidavitaffirmed by the general manager of the respondent dated September 18,1986.   But the position of theoutstanding balance of money due and owing by the appellant to the respondenton the said charge given was as at September 22, 1986 which failed to cure thedefect in non-compliance with the necessary paragraphs earlier mentioned. On this issue, the learned judgein his judgment stated at p 6 as follows: In the present case, the chargeaction begun by originating summons was not an action for the deliverypossession or payments of moneys secured or both.   It was a action for an order for the sale ofthe charged property, an altogether dissimilar and distinct relief notregulated by rr 2 and 3 – see Order 83 r 3(3)(c) read together with r 3(6) wasnot followed.   Indeed, even if Order 83 r3(3)(c) and (6) regulated the instant charge action (i.e. Citibank Bhd vIbrahim bin Othman [1994] 1 AMR 369; [1994] 1 MLJ 608 is truly to bepreferred over Perwira Affin Bank Berhad v Tan Tian Ser [1995] 1AMR 295; [1995] 2 CLJ 133), it ought not to have been so contended, as theaffidavit clearly showed the amount of the interest in arrear (in the instantcase of a fixed loan repayable on demand, the amount of instalments in arrearwas not applicable0 at the date of the affidavits, and at the date on which theorder for sale was made.   Ineluctably,the plaintiff stated the exact amount that the defendant was legally liable topay to stave off the sought auction sale. In giving preference to Citibank’s case, supra, over Perwira Affin Bank Berhad’s case, supra, thelearned judge must be referring to the dicta of Edgar Joseph Jr FCJ in Maimunahbte Megat Montak , supra, at p 2476 (AMR); P 11 (CLJ) thereof, where theFederal Court preferred the reasoning and conclusion of Shankar J in Citibank .   But the learned judge in so concluding in theabove passage has misconstrued the decision in Citibank andmisapplied it in the present matter before him.   In Citibank , the bank applied for an order for sale of thedefendant’s land in order to effect payment of moneys secured by the charge ofthe land (which is the case here before the learned judge).   The defendant claimed that the plaintiff hadfailed to provide the statutory particulars required under Order 83 r. 3 of theRHC.   The plaintiff however contendedthat Order 83 r. 3 only applied to a claim for delivery of possession and, asthat was a foreclosure action, Order 83 r. 3 did not apply.   Shankar J disagreed with the contention ofthe plaintiff but agreed with the contention of the defendant and accordingly dismissedthe application of the plaintiff.   In thepresent case, the respondent clearly has failed to comply with the mandatoryrequirements of Order 83 r. 3(3)(c) and (6) of the RHC as enumeratedabove.   On this ground too we were of theview that this appellant’s appeal ought to be allowed.”           And now tothe case of Chong Keat Realty (supra).   What we can discern from the dicta is that itwas not as if his Lordship was making short shrift over the non-compliance of0. 83 r. 3, R.H.C. 1980.   It was moreabout the manner in which the Defendant there had conducted themselves from thehearing of the application for order of sale where no challenge was profferedfor non-compliance of 0.83 r. 3, R.H.C. 1980 to the Defendant’s subsequentattempt some 8 years later to set aside the sale order principally fornon-compliance of 0. 83 r. 3, R.H.C. 1980.   His Lordship quite naturally found the conduct and delay of theDefendant in making the application to set aside the order for sale anuntenable situation amounting to an abuse of Court process.           The factualmatrix in the present case, is slightly different.   The order for sale granted on 15.10.1987 wasgranted by the High Court in the absence of the Respondent and hisSolicitors.   However, at the subsequenthearing of the Originating Summons to set aside the order for sale, argumentswere canvassed by the chargor’s Solicitors on the necessity to comply with the provisions of 0.83 r. 3(1), r. 3(3), r. 3(6) andr. 3(7), R.H.C. 1980.   In vain thesearguments of the chargor did not find favour in the Trial Court.   The rest is history.                     As to the judgment of Abdul Aziz binMohamed J. (as he then was), in Perwira Affin Bank Bhd (supra).   This judgment did   raise a pertinent issue on the languageemployed in 0. 83 r. 1 (a to g) read in conjunction with 0. 83 3(1) to (3),R.H.C. 1980.   His Lordship opined thatfrom a literal reading of 0.83 r. (3), R.H.C. 1980 compliance will only berequired of it when the chargor claims delivery of possession or payment ofmoney secured by the charge or both.   Foremphasis 0.83 r. 3 (1), R.H.C. 1980 reads as follows – “3.(1)   The affidavit in support of the originatingsummons by which an action to which this rule applies is begun must comply withthe following provisions of this rule. Thisrule applies to a charge action begun by originating summons in which the plaintiffis the chargee and claims delivery of possession or payment of moneys securedby the charge or both .”   (emphasis isours).              We dopropose to reproduce in extenso the judgment of his Lordship Abdul Aziz binMohamed J. (as he then was) as recourse could be made to the said judgment in(1995) 2 CLJ page 133.             Attractive as the proposition is froma literal reading of the provision, we take the view that it would be absurdfor the requirements of 0. 83 r. 3 (3) R.H.C. 1983 to be complied with only insituations when it is for payment of moneys secured by a charge or for deliveryof possession but not for the foreclosure or sale of the charged property.   Why should there be such a distinction, weask ourselves?   There is no reason inreason and in law for the distinction.   To our minds 0.83 r. 1 (a), (b), (c) and (d), R.H.C. 1980 read with 0.83r. 3(1), R.H.C. 1980   has the sameimpact.   It concerns and protects therights of a chargor who is on the brink of having his property sold at anauction, to know exactly where he stands in terms of inter-alia ,the amount of advance, amount of repayment and the amount of interest orinstalments in arrears at the date of the issue of the originating summons. Froma legal and moral standpoint we hold it would seem to us more incumbent for thechargee to provide particulars in consonance with 0.83 r. 3(3) R.H.C. 1980 whenthe chargor is facing the prospect of losing his property pursuant to 0.83 r.1(1) (b) or (c), R.H.C. 1980.   This webelieve is the legislative intent in enacting 0.83 r. 3(3) to r. 3(7), R.H.C.1980. Itcannot be gainsaid, that 0. 83 r. 3(1) and (3), R.H.C. 1980 is far fromfelicitously drafted, to reflect the true intention of Parliament.   To that end, what do we as judges need todo?   Do we merely wring our hands and saynothing can be done?   This would be farfrom satisfactory.   We dare say we wouldbe failing in our duty if we do not rise to the occasion now, instead ofapproving helplessly an interpretation of a statute which is certain to subvertthe legislative intention and endanger the public good.   Effect we feel should be given to the trueintention of the legislature even if a provision of a statute is far from beinghappily enacted.   It would be apposite toquote the judgment of Lord Simon of Claisdale in Rugly Joint Water Boardv Foothit (1972) 1 All ER 1057, where His   Lordship has this to say –      “The task of courts is to ascertain what was theintention of Parliament, actual or to be imputed, in relation to the facts asfound by the court …   But on scrutiny ofa statutory provision, it will generally appear that a given situation waswithin the direct contemplation of the draftsman as the situation calling forstatutory regulation, this may be called the primary situation.   As to this, Parliament will certainly havemanifested an intention.   The primarystatutory Intention.   But situationsother than the primary situation may present themselves for judicial secondarysituations.   As regards these secondarysituations, it may seem likely in some cases that the draftsman had them incontemplation, in others, not.   Where itseems likely that a secondary situation was not within the draftsman’s contemplation,it will be necessary for the Court to impute an intention to the Parliament inthe way I have prescribed, that is, to determine, what would have been thestatutory intention if the secondary situation had been within theparliamentary contemplation (a secondary intention).” Afortiori in Nothman v Barnet London Borough Council (1978) 1W.L.R. page 220, Denning M.R. had this to say   -       “Whenever the strictinterpretation of a statute gives rise to an absurd and unjust situation, theJudges can and should use their good sense to remedy it by reading words in, ifnecessary so as to do what Parliament would have done had they had thesituation in mind   … “ in all cases nowin the interpretation of statutes we adopt such a construction as will promotethe general legislative purpose underlying the provision.”           Closer to home we have the decision ofthe Court of Appeal in Akberdin Hj Abdul Kadir & Anor v Majlis Peguam Malaysia [2002] 4 CLJ 689 wherein Gopal Sri Ram JCA said thefollowing – “Additionally,we observe that the modern approach to statutory interpretation is purposivenot literal.   Indeed the abandonment ofthe literal approach these days is evidenced by the speech of Lord Griffiths in Pepper v Hart [1993] 1 All ER 42.   This what His Lordship said at p 50 of the report: ‘Thedays have long passed when the courts adopted a strict constructionist view ofinterpretation which required them to adopt the literal meaning of thelanguage.   The courts now adopt apurposive approach which seeks to give effect to the true purpose oflegislation and are prepared to look at much extraneous material that bears onthe background against which the legislation was enacted.’ “             Againstthis illuminating dicta, we are more sanguine to carry out that task that weare called upon to do now, to bridge the gap between the conflicting views onthe interpretation and observance of 0. 83 r. 3(1), r.3(3), and r.3(6) andr.3(7), R.H.C. 1980 in respect of foreclosure proceedings in the sale ofcharged property.   But before we can doso, we cannot resist making mention of the decision of Low Lee Lian v BanHin Lee Bank Bhd , a decision of the Apex   Court which touched on whether there was aneed to comply with 0.83 before granting an order for sale.                         We cannot in all honesty say we havenot appreciated the arguments proffered by the Appellant’s Counsel over theimpact of Low Lee Lian v Ban Hin Lee Bank Bhd (supra), and the fact thatat page 88 of the said judgment his Lordship Gopal Sri Ram JCA in deliveringthe judgment of the Federal Court had this to say - “Althougheach case turns upon its own facts, we propose to consider, by way ofillustration only, the usual kind of case with which this court has been facedon numerous occasions.   An applicationunder s 256 is opposed by the charger on the ground that the chargee has actedin breach of contract, eg by not releasing moneys due under the loan agreementor by increasing the rate of interest without proper notice or by not givingany proper account of the sums paid by the borrower (emphasis is ours) .   A judge faced with such complaints willmerely say that they do not, on a proper reading of s 256(3) and theauthorities which have considered the section, constitute cause to thecontrary.   He will not, and ought not to,enter upon a discussion of the question whether any or all of these complaintshave or are devoid of any merit.   Muchconfusion and difficulty has been occasioned in this area of the law by afailure on the part of those concerned with the task dealing with applicationsunder s 256 to properly appreciate their true role assigned to them byParliament.”             We observe that this aspect of thedictum appears to posit a somewhat narrow interpretation of what constitutes acause to the contrary but goes against the grain of what his Lordship had saidearlier on the same decision   at page 88– “A judge hearing an application under s 256 must bear inmind that the procedure under the section is meant to be speedy and summary innature.   He is first concerned withwhether the chargee has given the appropriate statutory notices as stipulatedin the Code.   Next, he must ensure thatthe procedural requirements prescribed by 0. 83 of the Rules of the High Courthave been complied with (emphasis is ours).   Next he is concerned with the very narrow question whether the materialproduced before him by the chargor constitutes cause to the contrary.”            Wethus find there is thus a certain degree of inconsistency in the learnedjudge’s approach to the procedural requirement of 0. 83   R.H.C. 1980, and compliance of it in mattersinvolving sale of charged property or foreclosure proceedings. Onour part we are not prepared to surmise why His Lordship had decided on thiscourse of reasoning.   Hitherto, we areonly prepared to state at this juncture that the procedural requirements of0.83 r. 3(1), (3), (6) and (7) R.H.C. 1980 must be complied with strictly forthe purpose of seeking an enforcement of a charge registered under the NationalLand Code by way of an order for sale, regardless of the reliefs sought.   In this we wish to associate ourselvesentirely with the decision of Maimunah bte Megat Montak v Mayban FinanceBhd (supra) that cites in support of its preference to the judgment of CitibankN.A. v Ibrahim bin Othman where this very issue of the proceduralrequirements of 0.83 r. 3 (3) R.H.C. 1980 was canvassed, and Diamond PeakSdn Bhd (supra) that affirmed the proposition of law.   Inthe upshot, in response to question 2, we say affirmatively that non-compliancewith the provisions of 0.83 r.3(3), and r.3(6) and r.3(7), R.H.C. 1980 wouldrender an order for sale defective and liable to be set aside.    In view of our finding in respect ofquestion 2, we hold it would be superfluous to answer question 3.   As to question 1, Counsel for Appellant atthe outset informed the Court that Respondent’s Counsel had conceded toquestion 1.   Hence, it did notnecessitate our deliberation on this issue.        Forthese reasons, we uphold the decision of the Court of Appeal and dismiss thisappeal with costs.   Deposit to Respondenttowards taxed costs. Datedthis 14 th day of June 2005.                                                           PAJANSINGH GILL                                                           FederalCourt Judge                     Counsel for the Appellant:                         PorresP. Royan with                                                                    S.M.Yoong and                                                                    MF Wong                                                                    (TetuanShook Lin & Bok) Counsel for the Respondent:                    Dato’Mahinder Singh                                                                    andHarjit Singh                                                                    (TetuanHarjit Singh Sangay                                                                    &Co)",101);arrFiles[2]=new Array(638,"http://www.kehakiman.gov.my/jugdment/fc/latest/27.07_02-14-2003(W).htm","2005-08-23","DALAM MAHKAMAH RAYUAN MALAYSIA","","","fm9fytmf7qkckctv9t29tbbbtg Normal administrator 2 52 2005-07-27T01:07:00Z 2005-07-27T07:11:00Z 2005-07-27T07:11:00Z 1 4187 23872 mahkamah 198 56 28003 11.6412 false false false MicrosoftInternetExplorer4 IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA (APPELLATE DIVISION) CIVIL APPEAL NO. 02-14 OF 2003 (W) BETWEEN TAN KONG MIN                                                    …         APPELLANT AND MALAYSIAN NASIONAL INSURANCE              …         RESPONDENT SDN BHD CORAM: ABDUL MALEK AHMAD, PCA SITI NORMA YAAKOB, FCJ ALAUDDIN MOHD. SHERIFF, FCJ JUDGMENT OF THE COURT BACKGROUND FACTS: 1.        TheRespondent had, on 28 th March, 1984 approved a housing loan application by the Appellant,who is a Life Policyholder of the Respondent, for the amount of RM142,000.00with interest thereon at 12% per annum. 2.        Byway of security, the Appellant, had among others created a first legal chargeover his land held under Title No. G.M. 1984, Lot No 11393, Mukim of Kuantan,District of Kuantan, Pahang (‘the said land’) in favour of the Respondent. 3.        TheAppellant had defaulted in the repayment of the housing loan and Respondentthereafter exercised their statutory rights and foreclosed the said land by wayof a public auction on 16 th March, 1992 .   4.        Thesaid land was sold for RM80,100.00 leaving a balance of RM336,012.52 still dueand owing from the Appellant to the Respondent. 5.        Pursuantto Clause 7 of the Annexure to the charge, the Appellant, as chargor, hadagreed that he shall pay to the Respondent the difference between the amountdue and the amount realised from the sale and, until such payment, will alsopay interest on the balance due at the prescribed rate with monthly rests. 6.        Relyingon Clause 7 of the Annexure to the charge, the Respondent had through theirsolicitors, Messrs Azim Ong & Krishnan, demanded for the principal sum andinterest remaining due from the Appellant by letters dated 18 th August, 1994 and 11 th November, 1994 .   The Appellant failed to make payments of theamount demanded thus resulting in the commencement of a suit vide Kuala LumpurHigh Court (Commercial Division) Suit   No. D5-22-40-95 by the Respondent on     17 th January, 1995 . 7.        TheRespondent’s claim was dismissed by the learned Judicial Commissioner, on 15 th May, 1996 .   The Respondent appealed to the Court ofAppeal.   The appeal was allowed.   8. Dissatisfied withthe decision of the Court of Appeal, the Appellant applied to this court forleave to appeal which was granted on              23 rd September, 2003 . THE ORDER GRANTING LEAVE: 9.        Theorder granting leave, posed the following questions for the determination ofthis Court. Question (1): Whether a claim for balance after sale is a claimfounded on contract and therefore subject to the limitation period of 6 yearsunder section 6(1)(a) of the Limitation Act 1957 (‘the Act’) or a claim formoney secured by charge on land and thereafter subject to the limitation periodof 12 years under section 21(1) of the Act? Question (2): If a claim for balance after sale is a contractualclaim and therefore subject to the limitation period of 6 years under section6(1)(a) of the Act, when does the cause of action accrue and the limitationperiod begin? Question (3): If a claim for balance after sale is a claim for moneysecured by a charge on land and therefore subject to the limitation period of12 years under section 21(1) of the Act:- (i) when does the causeof action accrue and the limitation period begin? (ii) is the interestcomponent of the claim subject to section 21(5) of the Act? (iii) for section 21(5)of the Act, when does the cause of action for interest in arrears accrue andthe 6 years limitation period begin? (iv) if the claim forthe balance after sale consists of mixture of both principal sum and interestand the claim for interest is barred by section 21(5) of the Act, is the claimbarred altogether? QUESTION (1): 10.      Theprimary issue in this appeal concerns the provisions of the Act.    It is the Appellant’s contention that the Respondent’sclaim for the balance after sale is a claim founded on contract and thereforesubject to the limitation period of 6 years under section 6(1)(a) of the Actwhilst the Respondent contends that the claim is a claim for money secured bycharge on land and therefore subject to the limitation period of 12 years undersection 21(1) of the Act. 11.      Section6 provides as follows:- “6.         Limitationof actions of contract and tort and certain other actions. (1) Save as hereinafter provided the following actionsshall not be brought after the expiration of six years from the date on whichthe cause of action accrued that is to say – (a) actions founded on contract or on tort; (b) ……………..…………………………………………..…..; (c) ………..…………………………………………………....; (d) …..………………………………………………………....; (2) ...………………………...……………………………………….; (3) ………………………………....……………………………...…; (4) ……………………………………...……………………...…….; (5) Nothing in this section shall apply to – (a) ………………………...………………….………….…; or (b) any action to recover money secured by any mortgage ofor charge on land or personal property.                         (6)     …………………………………………………………………...” 12.      Section21 provides as follows:- “21.      Limitation of actions to recover moneysecured by a mortgage or charge or to recover proceeds of the sale of land. (1)        No action shall be brought to recover anyprincipal sum of money secured by a mortgage or other charge on land or personalproperty or to enforce such mortgage or charge, or to recover proceeds of thesale of land or personal property after the expiration of twelve years from thedate when the right to receive the money accrued. (2)        No foreclosure action in respect of mortgagedpersonal property shall be brought after the expiration of twelve years fromthe date on which the right to foreclose accrued: Provided that…………………………………………………………………” 13.      Havinghad a close look at both sections mentioned above, we are of the view thatsection 6 cannot apply in this case in view of the express exclusion of “anyaction to recover money secured by any mortgage of or charge on land” in section6(5)(b).   The action is therefore notfounded on a claim on contract under section 6. 14.      Inour judgment, the applicable provision is section 21. Section 21(1)specifically refers to an action to recover moneys secured by a charge which isan action in personam, whilst section 21(2) specifically refers to a foreclosureaction in respect of mortgaged personal property which is an action inrem.   The limitation period is thereforetwelve (12) years from the date when the right to receive the money accrued ortwelve (12) years from the date on which the right to foreclose accruedrespectively. 15. What we have saidthus far would answer Question (1) posed by the Appellant.   Our answer to Question (1) above makesQuestion (2) superfluous.   We would,therefore, refrain from answering it.   Having said that, we shall now proceed to consider Question (3) (i)above. QUESTION (3)(i) 16. As we have mentionedearlier, the claim by the Respondent against the Appellant is for thedifference between the amount due under the housing loan and the amountrealised from the sale of the said land charged to the Respondent by the Appellantand interest thereon based on the Respondent’s contractual right pursuant to Clause7 of the Annexure to the charge signed by the Appellant in his capacity as thechargor.   17. Clause 7 of theAnnexure to the charge which carries the heading “Personal Liability ofChargor” provides as follows:- “If the amountrealised by the Lender on a sale of the Said Land under the provisions of theNational Land Code after deduction and payment from the proceeds of such saleof all fees, dues, costs, rents, rates, taxes and other outgoings on the Said Landis less than the amount due to the Lender and whether at such sale the Lenderis the purchaser or otherwise the chargor (s) shall pay to the Lender thedifference between the amount due and the amount so realised and until suchpayment will also pay interest on such balance at the Prescribed Rate asaforesaid with monthly rests.” 18.      Fromthe reading of Clause 7 above, it is obvious to us that prior to the auction,it would not be possible for the Respondent to ascertain the exact amount thatcan be realised from the sale of the said land and whether there will stillremain any excess amount due to the Respondent. 19.      Itfollows, therefore, that the Respondent can only enforce their right againstthe personal liability of the Appellant under Clause 7 when the sale has beenconducted and the excess amount due, if any, has been ascertained. 20.      Onlyafter the auction was conducted on 16 th March, 1992 and a sum ofRM80,100.00 was realised from the sale did the Respondent manage to ascertainthat a sum of RM336,015.52 was still due and owing from the Appellant to the Respondentwith interest still accruing thereon until full settlement. 21.      Thequestion that comes to mind is when does the cause of action with regard to thepersonal liability of the chargor arise or deemed to have accrued? 22.      Indetermining when a cause of action is deemed to have accrued, Yong J. in Lim Kean v. Choo Koon (1970) 1 MLJ 158 had this to say- “A cause of actionnormally accrues when there is in existence a person who can sue and anotherwho can be sued, and when all the facts have happened which are material to beproved to entitle the plaintiff to succeed. (See Halsbury’s Laws of England. 3 rd Edn. pages 193 and 194). In Cooke v Gill (1) ,Brett J. defined “a cause of action” to mean “every fact which is material tobe proved to entitle the plaintiff to succeed.”   This definition was approved by the Court of Appeal in Read v Browne (2) in which Lord Esher M.R. in his grounds of judgment said that it included“every fact which if would be necessary for plaintiff to prove, if traversed,in order to support his right to the judgment of the court.” After reviewingthese and other authorities including Barton v North Staffordshire Rly. Co. (3) and Welch v. Bank of England (4) , I have come to the conclusion thatthe period of limitation does not begin to run until there is a complete causeof action, and a cause of action is not complete when all the facts have nothappened which are material to be proved to entitle the plaintiff to succeed.” 23.      TheSupreme Court in Credit Corporation (M)Bhd. v. Fong Tak Sin (1991) 1 MLJ 409 referred to Lim Kean v. Choo Koon(supra) and the authorities cited therein and held that it is established thatthe cause of action normally accrues where there is in existence a person whocan sue and another who can be sued and when all the facts have happened whichare material to be proved to entitle the plaintiff to succeed. 24.      Inthe circumstances of the present appeal before us, we are of the view that thepoint in time where all the material facts are said to be in existence torender the cause of action complete would be after the sale has been conductedand the differential amount remaining due to the Respondent has beenascertained. 25.      Therefore,the earliest possible date the Respondent could bring   an action against the Appellant for breach ofhis personal covenant under Clause 7 is on 16 th March, 1992 , being the datethe property   was sold by auction. 26.      Sincethe Respondent’s cause of action arose on 16 th March, 1992 , their actionagainst the Appellant which was filed on 17 th January, 1995 , was filed wellwithin the time prescribed in section 21(1) of the Act i.e. twelve (12) years. 27.      In thecourse of his submissions, learned counsel for the Respondent drew ourattention to the case of Hongkong &Shanghai Banking Corp. Ltd. v. Wan Mohd bin Wan Ngah (1991) 3 MLJ 119 (HSBC’scase).   We find that the facts in thatcase are somewhat similar to the facts of the case under appeal. 28.      Inthat case, the plaintiff bank had granted a housing loan to the defendant onthe security of the latter’s land which was charged to the plaintiff bank. Theoutstanding amount due as at 9th May, 1986 to the plaintiff on the said facility for which a claim wasbeing made was 290,873.56.   To realizethe money owing, the plaintiff applied for an order for sale of the said landand the Kuantan Land Office had granted the application but had yet to fix thedate of auction.   The plaintiff alsofiled   a writ of summons in the KuantanHigh Court claiming the amount due. 29.      Subsequently,there was an application by the plaintiff bank for the decision of the HighCourt, Kuantan on the following questions: ‘whether the plaintiff being alsothe chargee of property comprised under HS(M) 13399 Lot 3134/29 in the Mukim ofKuala Kuantan (‘the said land’) was entitled at law and in equity to proceed byway of a civil suit before first realizing the security under the charge and ifso, whether the plaintiff was entitled to proceed concurrently on all itsremedies.’ 30.      Thelearned High Court Judge, Lamin J (as he then was) answered the question in thenegative and held that if the amount realized by the chargee on the sale of thecharged land was less than the amount due to the chargee, the chargor shall payto the chargee the difference between the amount due and the amount sorealized.   So the personal liability ofthe chargor was only to the extent of the balance of the amount due (Clause 8).   Upon reading the charge annexure as a whole,both the chargee and chargor were bound by the terms and conditions of thecharge and to realize that amount owing, the land must be sold in accordancewith the provisions of the National Land Code 1965.   If the amount realized from the sale was notsufficient to cover the amount due then it was implied that a separate actionmay be taken against the debtor/chargor to recover the balance should he failto pay the difference.   The plaintiff’sappeal to the Supreme Court vide Civil Appeal No 02-65-1991 was heard on 10 th June 1991 and            11 th   June 1991 and the court dismissedthe appeal with costs (see Editorial Note to the case). 31.      Clause7 of the Annexure to the charge in the present appeal as quoted earlier is inpari materia with Clause 8 of the Annexure to the charge in HSBC’s case above.           32.      Thiswould therefore mean that the cause of action against the Appellant as chargoras regards his personal liability in the present appeal will only accrue afterthe differential amount has been ascertained i.e. after the land has been sold. 33.      Inshort, the contractual provisions of the Annexure to the charge provides fortwo (2) separate causes of action.   Thefirst is statutory in nature i.e. the foreclosure action under the National LandCode 1965 (action in rem).   The secondwhich arises only after the foreclosure action (and if there is still a surplusowing) is the action in personam against the chargor. 34.      Thedecision of Lamin J (as he than was) in HSBC’s case (supra) was also followedby Haidar J (as he then was) in LeongYick Realty Co. Sdn. Bhd. v. Asia Commercial Finance (M) Sdn. Bhd. (1994) 2 MLJ308 where his Lordship held (at page 313) – “In any event, asthe debt is disputed by the plaintiff, the defendant should proceed by way of aseparate action against the plaintiff to recover for the shortfall. In fact,the case of the Hongkong & Shanghai Banking Corp. Ltd. v. Wan Mohd. bin WanNgah 4 , relied on by counsel for the defendant, would seem tosupport that a separate action need to be taken against the plaintiff torecover the shortfall.” 35.      Atthe risk of repetition, we would reiterate that the personal liability of the Appellantas chargor is in respect of the difference between the amount due under thehousing loan and the amount realised from the sale of the said land only and thecause of action against the Appellant is only complete upon the conclusion ofthe sale of the said land.   Indeed, if asuit is brought against the chargor before the completion of the foreclosureaction and the determination that there is a balance still owing, such a suitcould be struck-off as being premature. 36.      Thatbrings us to the next question i.e. when does the period of limitation commence?   37.      Itis the Respondent’s contention that the limitation period begins to run when ademand is made by the Respondent on the Appellant not as chargor but as adebtor for the payment of the difference between the amount due under thehousing loan and the amount realised from the sale of the said land. 38.      Thefirst notice of demand was issued by the Respondent’s solicitors on August 18, 1994 by registeredpost directed to the Appellant’s address as appearing in the Annexure to thecharge.   Subsequently, the Respondent’ssolicitors issued another notice of demand by registered post addressed to theAppellant at his residence.   In ourconsidered opinion, the limitation period only begins to run from the expiry ofthe time specified for payment in the letter of August 18, 1994 i.e. on 26 th August 1994 .   The Respondent’s action, therefore, was filedwell within the limitation period allowed under section 21(1) of the Act. 39.      TheAppellant, on the other hand, relying on section 6 (1)(a) of the Act, contendsthat there is only one cause of action i.e. an action founded on contract.   The moment the Appellant fails to pay thefirst instalment due (i.e. on 25 th September, 1986 ), the whole sum becomes immediately due and payableand that is the instant from when time begins to run.   Since the Appellant’s action was filed on 17 th January, 1995 i.e. 8 years 3 months and 23 days after the date on which the cause of actionaccrued, it becomes statute-barred. 40.      Toour minds, the Appellant’s contention, if allowed to succeed, would result in aperverse outcome. If, as suggested by the Appellant, time begins to run fromthe time the Appellant first defaulted i.e.         25 th September, 1986 (7 daysafter the first demand was made), this would mean that the Respondent shouldhave proceeded by way of a civil suit (when the Appellant defaulted inrepayment of his housing loan) concurrently with realizing the security underthe charge in order to avoid the danger of being caught by limitation, insteadof realizing the security under the charge first and, upon the sale beingconcluded, to institute a separate action to recover the insufficient amountfrom the chargor personally as being done here.   This, if implemented, it would run counter to the decision in HSBC’scase which in our judgment is the correct decision. 41.      Asis the case here, where the Respondent is also a chargee of   the property and the only terms that bind theparties are the terms set out in the Annexure to the charge, the Respondent isnot entitled at law and in equity to proceed by way of a civil suit beforefirst realizing the security under the charge. The proper mode of recovery isto proceed by way of foreclosure and if there arises any difference to theamount due after deducting the amount realised from the sale, a separate actionshould be taken against the chargor on his personal liability to recover the balance. 42.      Thefacts in the present appeal are different and can be distinguished from thefacts In re McHenry. McDermott v. Boyd (Barkers claim) (1894) 3 Ch. 290 CA reliedupon by counsel for the Appellant. 43.      Inthe present appeal, the only form of agreement or covenant agreed to by boththe Respondent (chargee) and the Appellant (chargor) is the Annexure to thecharge which stipulates the terms and conditions of the charge.   To realize the amount owing, the land must besold in accordance with the provisions of the National Land Code 1965. As wehave said earlier, the personal liability of the chargor is only for the differencebetween the amount due and the amount realized from the sale of the said land. 44.      InMcHenry’s case, there is no requirement that in order for the plaintiff torealize the amount owing, he must first sell the bonds deposited by thedefendant.     In that case Lindley L.J.was right when he said :- “It means that, ifthe amount is not paid when it becomes payable, Barker may realize thesecurities, giving Mc Henry credit for the amount of the proceeds.   The promise to pay the deficiency does not createa new obligation to pay: it only applies the old obligation to a reducedsum.   The realization of the securitydoes not add to the cause of action; the cause of action accrued long before.” 45.      Unlikethe facts of the present appeal where the right of the Respondent chargee andthe mode of realizing the amount due has been prescribed in the Annexure to thecharge, the plaintiff in McHenry’s case was free to recover the amount due upondefault by way of a civil suit whether solely or concurrently and the sale ofthe security was just to reduce the amount owing. QUESTIONS (3) (ii) (iii) AND (iv) 46.      Allthese questions refer to section 21(5) of the Act.   In the course of his submissions, learnedcounsel for the Respondent urged upon us to refrain from answering these questionson the ground that they did not come within the ambit   of section 96(a) of the Courts of Judicature Act 1964.   Hesubmitted that, in the first place, leave should not have been granted inrespect of these questions.   In support,he cited the Federal Court case of SriKelangkota – Rakan Engineering JV Sdn Bhd & Anor v. Arab-Malaysian PrimaRealty Sdn Bhd & 7 Ors. (2003) 4 AMR 337. 47.      Theissue which arose in Sri Kelangkota was whether leave ought to have beengranted in the first place based on the circumstances in that case and whetherthe judgment must be based on issues raised in the application for leave. 48.      TheCourt there held that, whether leave should have been given or not, it had beendealt on the merits by the High Court and the Court of Appeal.   It was not simply a matter of lack ofjurisdiction.   Further, no preliminaryobjection had been raised at the appeal stage against the granting of theleave.   In the light of the authorities,the Court was not prevented from reconsidering the issue of leave. 49.      Deliveringthe judgment of the Court, Abdul Malek Ahmad, FCJ (as he then was) had this tosay (at page 358) – “Despite that, inthe light of the authorities, we would hold that we are not prevented fromreconsidering the issue of leave again.   Coming back to the questions formulated for determination by this court,it is our view that the questions do not involve a question of importance uponwhich further argument and a decision of this court would be to publicadvantage. The questions merely relate to the set of facts in the appeal andthe application of the settled principles of law as is plain from the judgmentof the Court of Appeal.   As such, they donot come within the ambit of section 96(a) of the CJA and, therefore, there isno necessity or purpose for this court to answer the questions posed regardlessof the fact that leave to appeal has in fact been granted at an earlierhearing.” 50.      Forthe same reasons, we would agree with the submission of learned counsel for theRespondent that these questions do not come within the ambit of section 96(a)of the CJA and we would refrain from answering them. 51.      Thereis one other reason why we feel this issue concerning section 21(5) of the Actought not to be considered in this appeal.   A perusal of the notes of evidence shows that, in fact, the Appellantwas all along relying on section 6 of the Act as a complete defence to defeatthe whole claim.   The amount claimed wasnot disputed.   Since this is an issue oflaw dependent upon a finding of facts, the Court of Appeal was correct when itrefrained from deciding on the effect of section 21(5) of the Act in this casesince it was not pleaded nor was any evidence presented to substantiate it norwas any arguments made by the Appellant on it in the High Court or Court ofAppeal. 52.      Thesame issue was addressed by this court in LimGeak Liang v. East West UMI Insurance Bhd(1997) 3 MLJ 517. 53.      Inthat case, the plaintiff took a policy of insurance (‘the policy’) from thedefendant.   During the currency of thepolicy, he accidentally chopped off his left thumb.   The plaintiff later gave notice of theaccident and submitted his claim for compensation for permanent disablementwhich the defendant refused on the grounds, inter alia, that he was in breachof condition 4 of the policy when he failed to inform the defendant that duringthe currency of the policy, another policy had been issued to him by anotherinsurance company.   The plaintiff hadbecome a member of a discount card scheme and had been insured under the GroupPersonal Policies. 54. In the Sessions Court,the plaintiff contended that he was not required under condition 4 to discloseany other insurance effected against accident where such insurance was effectedafter or during the policy with the defendant.   The Sessions Court Judge rejected the plaintiff’s claim and the HighCourt affirmed the decision.   Theplaintiff appealed to the Federal Court on the ground that by virtue of thewords ‘excluding coupon’ appearing in condition 4, the High Court Judge haderred in finding that the plaintiff should have notified the defendant of theinsurance coverage under the Group Personal Policies.   Counsel for the defendant objected to thisnew issue which was never pleaded and argued in the courts below. 55.      ThisCourt held that whether or not the plaintiff’s second policy came under theexclusion clause must necessarily depend on the facts.   The evidential burden was on the plaintiff tobring himself within the exception.   Thiscan only be resolved by the court below after hearing the evidence adduced bythe plaintiff. 56.      MohamedDzaiddin FCJ (as he then was) in delivering the judgment of the Court had thisto say (at page 523) - “In Yong Mok Hinv. United Malay States Sugar Industries Ltd [1967] 2 MLJ 9 at p 16, the FederalCourt adopted the observations of Reay J and Lord Finlay LC in A-G v Pang AhYew [1934] MLJ 184 at p 187 and Banbury v Bank of Montreal [1918] AC 626respectively, that on general principles, where a decision on a question of lawis dependant upon a finding of fact which was not made by a judge or jurybecause the question was not raised or put at the trial or where the questionof law cannot be resolved without further evidence not available on therecord,   a court of appeal would notinterfere with the judgment or verdict of the lower court.” 57.      Fromthe notes of proceedings in the courts below, we are satisfied that the issueof section 21(5) of the Act was never raised by the Appellant’s formercounsel.   In fact, the argument of the Appellant’scounsel before the learned High Court Judge merely centred around section 6 ofthe Act in order to defeat the whole claim.   Nowhere was the issue of section 21(5) of the Act addressed or arguedbefore the judges below, because otherwise, something would have been said intheir respective judgments. 58.      Forthe reasons we have stated above, we decline to answer Questions 3 (ii) (iii)and (iv) above. 59.      Evenassuming that we have to answer these questions, our answer would be that section21(5) of the Act would apply since the Respondent’s action is governed by section21 thereof. 60.      However,the Respondent’s right of action to recover interest is not time-barred sincetheir right to bring the action to recover the shortfall sum and interestthereon crystallised on 16 th March, 1992 .   The action forrecovery of interest was therefore filed within 6 years, well within the periodprescribed by section 21(5) of the Act. CONCLUSION 61.      Forthe reasons advanced, we are unanimous that this appeal should be dismissedwith costs.   The deposit is to be paidout to the Respondent to account of their taxed costs. 62.      Mylearned brother Abdul Malek Ahmad, PCA and my learned sister Siti Norma Yaakob,FCJ have seen this judgment in draft and expressed their agreement with it. Dated:     27 th July 2005          ALAUDDIN MOHD. SHERIFF Judge Federal Court Malaysia Date of Hearing       :     3 rd November 2004 Date of Decision     :     27 th July 2005 Counsel: Jacob Goldie (Majdah Muda with him) for the Appellant (Solicitors     :     Messrs Sooriyar & Co.)                         Wong Hok Mun (John Wong with him) for the Respondent   (Solicitors     :     Messrs Azim, Tunku Farik & Wong)                              ",117);arrFiles[3]=new Array(639,"http://www.kehakiman.gov.my/jugdment/fc/latest/MPRS  02-13-2003(W).htm","2005-08-23","DALAM MAHKAMAH PERSEKUTUAN MALAYSIA","","","RABIAH BT. SAAD Normal administrator 2 0 2005-08-04T03:49:00Z 2005-08-11T01:15:00Z 2005-08-11T01:15:00Z 1 10038 57221 Kerajaan Malaysia 476 134 67125 10.2625 0 0 MicrosoftInternetExplorer4 DALAM MAHKAMAH PERSEKUTUAN MALAYSIA (BIDANG KUASA RAYUAN) PERMOHONAN   SIVIL NO. 02-13-2003 (W) ANTARA PERWIRA HABIB BANK MALAYSIA BERHAD   …            PERAYU DAN LUM CHOON REALTY SDN.BERHAD         …         RESPONDEN CORAM :     STEVE SHIM LIP KIONG CJ(SABAH &SARAWAK)               ABDULHAMID BIN MOHAMAD   FCJ               PAJANSINGH GILL   FCJ JUDGMENT                 To appreciate what had transpired inthis case, it is important that the chronology of events be given.      On 27 July 1982 , the first charge   was created. On 28 October 1983 ,the second charge was created. On 29 November 1986 ,the Appellant issued a   letter of demandto the Respondent (chargor) demanding payment within seven days of the“outstanding sum of M47,884,178.68 as at November 26, 1986 together with interest thereon at the aforesaid rate from November 27, 1986 to date of full settlement.” On 6 December 1986 ,Form 16D was issued, reciting the breach as follows: “Whereasyou have committed a breach of the provisions of these charges by defaulting inpayment on demand made by us through our solicitors pursuant to their letterdated November 29 1986 of the sum of M47,884,178.68 due to us and outstandingas at November 26 1986 on your overdraft of M10,000,000.00 and two (2) BankGuarantee facilities of the principal sums of US6,000,000 and M14,000,000.00respectively together with interest thereof at a rate per annum which is 6%above our Base Lending Rate of 10.3% per annum on monthly rests basis fromNovember 27 1986till date of full payment and secured by these Charges.” On 10 January 1987 theAppellant filed an Originating Summons for an order for sale “to satisfy thesum of 47,884,178.68 due and owing to the Plaintiff (Appellant – added) underthe   First Charge and Second Charge as at26 th day of November 1986 together with interest thereon at a rateper annum, which is 6% above the Plaintiffs (Appellants – added)    Base Lending Rate currently at 10.5% perannum on monthly   rests with effect   from the 27 th day of November 1986until   date of full settlement;” On 25 February 1987 ,the Respondent entered a Memorandum of Appearance through its solicitors,Messrs.   Choo, Yeang & Co. On    9   April 1987 , the Notice ofAppointment to    Hear   Originating Summons was filed by theAppellant and it was served on the Respondent’s solicitors on 12 August 1987 . On 15 October 1987 ,the Originating Summons was heard and the order for sale was granted in theabsence of the Respondent or its solicitors. On 17 December 1987 ,a Summons for Direction was filed.   Itwas heard on 15 January 1988 and the order prayedfor   were given.   Again, neither the Respondent nor its   solicitors appeared. On 13 June 1988 the Respondent filed a Notice of Change   of Solicitors appointing Messrs. Harjit Singh Sangay in place of itsformer solicitors. On 8 May 1992 ,the Appellant filed an application for a new auction date.    It was heard on 25 June 1992 and the Respondent’s solicitor   appeared at the hearing of the application. On 26 August 1992 the Respondent filed an application to set aside the order for sale dated 15 October 1987 . On 20 April 1996 ,the High Court dismissed the application. On 11 Jun 1998 ,the Court of Appeal allowed the Respondent’s appeal. On 23 September 2003 the Federal Court granted the Appellant leave to appeal. It is to be noted that,even though the Respondent, a company, entered appearance by its solicitors andwas served with the Notice of Appointment to Hear Originating Summons, neitherthe Respondent nor its solicitors appeared on the date the Originating Summonswas heard and the order for sale granted.   Neither the Respondent nor its solicitors appeared at the hearing of theSummons for Directions.   However, when theapplication for a new date for auction was heard, the Respondent’s new solicitorsappeared.    Three months later and,almost five years after the order for sale was made, the Respondent applied toset aside the order for sale.   It is also interesting tonote and that in 1991, i.e. about a year before the application to set asidethe order for sale was made, Abdul Razak J delivered his judgment in MalayanBanking Bhd. lwn. Dagang Bina Sdn. Bhd .(1991) 3 CLJ 1739 which will bereferred to later.   Prior to that, theSupreme Court in Ghazali bin Mat Noor v. Southern Bank Berhad and fourother appeals (1989) 2 MLJ 142 pronounced its judgment that for abankruptcy notice to be valid it should state the exact   amount due at the date of the bankruptcynotice.   The judgment debtor must knowthe exact amount he has to pay to avoid bankruptcy.   He does not have to make calculations orenquires.   That issue became a populardefence subsequently.   See, for example, ReWong Su Tiung, ex parte Yeo Hiap Seng Trading Sdn. Bhd . (1989) 2 MLJ 435. Reading the grounds forthe application to set aside   the orderfor sale, those decisions could well have influenced the Respondent   to make the application in 1992. In dismissing theapplication, the learned High Court Judge considered a number of issues.   I shall only refer to the issues relevant inthis appeal.   The Court of Appeal gaveits decision on 11 June 1998.   However,the “Judgment of the Court” was only issued on 5 August 2003, more than fiveyears later.   By that time two of theJudges who heard the appeal had   retired.   So, while I personallysymphatise with the learned Judge who alone had to shoulder the burden left byhis two brothers, for all intends and purposes, the grounds are his alone.   He too dealt with a number of issues.   Again, I shall only refer to those that arerelevant in this appeal and for which the leave to appeal to this Court wasgranted and they are: “(1) Whether or not thefailure to state the precise amount due to the Chargee in the letter of demandpreceding   the statutory notice under theNational Land Code, 1965 would render an application for an order for sale ofthe charged land defective. (2) Whetheror not the failure of a Chargee to comply with the provisions of 0.83 r3(3)(c)and 0.83 r.3(7), Rules of the High Court by not stating:- (i) theamount of interest in arrears as at the date of the Originating Summons; (ii) theamount of daily interest;   would render an Order forSale defective and to be set aside. (3) Whetherthe decision of the Court of Appeal in holding that there had beennon-compliance by the Chargee with the provision of 0.83 r.3, Rules of the HighCourt, to wit, by including in the sum claimed as due in the Order   for Sale, interest, notice of variation ofwhich had not been given, and thus holding that the Order for Sale wasdefective, was in conflict with the decision of the Federal Court in Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 1 MLJ 77.” Question 1 Before us, learnedcounsel for the Respondent conceded that the authorities show that the failureto state the precise amount due to the chargee in the letter of demandpreceding the statutory notice under the National Land Code (“NLC”)   would not render an application for an Orderfor Sale of the charged land defective.   In the circumstances that question need not be answered.   Question 2      It is important to note that the Originating Summons in questionis an application to court for an order   for sale under section 256 of the NLC.   Section 254 that provides for Form 16D requires the chargee to givenotice to the chargor:      “(a)specifying the breach in question; (b) requiringit to be remedied within one month of the date on which the notice is served,or such alternative period as may be specified in the charge; and (c) warningthe danger that, if the notice is not complied with, he will take proceedingsto obtain an order for sale. In the case of anapplication to court for an order for sale, section 256(2) provides: “(2)Any application for an order for sale under this Chapter by a chargee of anysuch land or leases shall be made to the court in accordance with theprovisions in that behalf of any law for the time being in force relatingto   civil procedure.” That is only a generalprovision as to how the application is to be made which is usually provided forin the Acts. Under section 257(1)(c)it is provided that the order for sale shall “specify the total amount dueto the chargee at the date on which the order is made .” That is all that is required to be stated by theNLC   as far as the amount due isconcerned. Wenow come to Order 83 of the Rules of the High Court 1980 (“RHC 1980”).   The heading is “Charge Actions”. Rule 1 of the Order provides: “1   Application and interpretation (O 83 r 1)      (1) ThisOrder applies to any action (whether begun by writ or originating summons) by achargee or chargor or by any person having the right to foreclose or redeem anycharge, being an action in which there is a claim for any of the followingreliefs namely - (a) paymentof moneys secured by the charge; (b) saleof the charged property; (c) foreclosure; (d) deliveryof possession (whether before or after foreclosure or without foreclosure) tothe chargee by the chargor or by any other person who is or is alleged to be inpossession of the property; (e) redemption; (f) reconveyanceof the property or its release from the security; (g) deliveryof possession   by the chargee. (2) Inthis Order “charge” includes a legal and an equitable charge. (3) Anaction to which this Order applies is referred to in this Order as a chargeaction. (4) Theserules apply to charge actions subject to the following provisions by thisOrder.” Rule 3 of the Orderprovides: “ 3 Action for possessionor payment (O 83 r3) (1) Theaffidavit in support of the originating summons by which an action to whichthis rule applies is begun must comply with the following provisions of thisrule. This ruleapplies to a charge action begun by originating summons in which the plaintiffis the chargee and claims delivery of possession or payment of moneys securedby the charge or both. (2) Theaffidavit must exhibit a true copy of the charge and the original charge or, inthe case of a registered charge, the charge certificate must be produced at thehearing of the summons. (3) Wherethe plaintiff claims delivery of possession the affidavit must show thecircumstances under which the right to possession arises and, except where theCourt in any case or class otherwise directs, the state of the account betweenthe   chargor and chargee with particularsof – (a) theamount of the advance; (b) theamount of the repayments; (c) theamount of any interest or instalments in arrear at the date of issue of theoriginating summons and at the date of the affidavit; and (d) theamount remaining   due under the charge. (4) Wherethe plaintiff claims delivery of possession, the affidavit must giveparticulars of every person who to the best of the plaintiff’s knowledge is inpossession of the charged property. (5) Ifthe charge creates a tenancy other than a tenancy at will between the chargorand chargee, the affidavit must show how and when the tenancy was determined and ifby service of notice when the notice was duly served. (6) Wherethe plaintiff claims payment of moneys secured by the charge, the affidavitmust prove that the money is due and payable and give the particulars mentionedin paragraph (3). (7) Wherethe plaintiff’s claim includes a claim for interest to judgment, the affidavitmust state the amount of a day’s interest.” Before considering theprovisions in detail, perhaps something should be said about the background ofthis Order.   This Order was taken fromOrder 83 of the Rules of the High Court 1970 (Singapore) which was in turntaken from Order 88 of the Rules of the Supreme Court 1965 (England).   While the English and the Singapore Rules areexactly the same, some changes   were madewhen it was adopted for use in Malaysia.   The word “mortgage”, “mortgagee” and “mortgagor” were substituted withthe words “charge”, “chargee” and “chargor”.   The rest of the order remains the same. The reason for thechanges is not difficult to fathom: the NLC provides for “charge” not“mortgage”.   Indeed, the word mortgage isnowhere   to be found in the NLC.   The reason for that is again understandable.In England, the land law is not based on the Torrens System.   The concept of the English mortgage is notconsistent with the Torrens System.   Thisis because in a mortgage the title passes from the mortgagor to the mortgageewhereas a duly registered charge under the NLC   only creates a legal   interest inthe land.   Regarding the differencesbetween an English mortgage and a NLC charge, Peh Swee Chin J (as he then was)in Bank Bumiputra Malaysia Bhd. v. Doric Development Sdn . Bhd. &2 Ors .(1988) 1 MLJ 462 @ 463 pointed out: “Inthe first place, the premise that a charge under National Land Code is the sameas an English mortgage at common law is patently erroneous.   A charge is governed by detailed statutoryprovisions of the National Land Code while an English mortgage at common lawwas a horse of a different colour altogether. It is not necessary to delve intoall the differences between a charge and a mortgage beyond mentioning one ortwo of such differences.   In an Englishmortgage at common law, the mortgaged property was transferred to the name ofthe mortgagee on the creation of the mortgage with a proviso for redemption.   Under the said proviso, the mortgagee agreed tore-transfer the mortgaged property by a certain date beyond which it was statedto be irredeemable.   Equity stepped inand provided the equity of redemption, by which the right to redeem was extendedbeyond the said date and would be lost only on foreclosure or sale.” Teo Keang Sood and KhawLake Tee, in their book “Land Law in Malaysia” at page 225 point out thedifferences very clearly: “Acharge under the National Land Code 1965 differs from a common law mortgage inthat the person in whose favour the charge is created acquires only an interestin the land with a statutory right to enforce his security by way of a sale ofthe land (section 253) or to take possession thereof (section 271) in the eventof default whereas the legal title or ownership to the said land remains vestedin the name of the registered proprietor.   However, in the case of a mortgage, the legal title or ownership to theland is vested in the mortgagee with the mortgagor having only a right inequity to redeem the land from the mortgagee upon repayment of the loan to thelatter.” Mallal’s Supreme CourtPractice, Second Edition by Chang Min Tat Vol.1 also explains the differencesvery clearly at page 1152: “ Differencesbetween the Malaysian Order and the Singapore Order : The main difference liesin calling such an action a   chargeaction in Malaysia and a mortgage action in Singapore.   This is entirely due to the fact that underthe National Land Code, Act No.56 of 1965, (N.L.C.). which now is in force inall the States of Malaya, - no mortgage is possible but any alienated land orlease may be charged with the repayment of any debt, or the payment of any sumother than a debt; or the payment of any annuity or other periodic sum;s.241(1) N.L.C.      A charge takes effect upon registration, while a mortgage takeseffect immediately upon execution.   Another difference is that a mortgage conveys the title to the land tothe mortgagee   subject to the equity ofredemption, while a charge merely makes the land a security for the loan.” In fact, the learnedauthor also noted at page 1159: “Thereis no such thing as the English mortgage in the Malay States:   HajiAbdul Rahman v. Mohamed Hassan (1917), 1 F.M.S.L.R. 290; [1917] A.C. 209; Wong See Leng v. Saraswathy [1954]M.L.J. 141, C.A., however, cf. Yaacob binLebai Jusoh v. Hamisah binti Saad , [1950] M.L.J.255; Nawab Din v. Mohamed Shariff ,[1953]M.L.J. 12. These are judgments ofBritish Judges who should be more familiar with “English mortgage” and weregiven prior to the enactment of the NLC. As a result of theadoption of the English rules by changing only the word and words related tothe word “mortgage” with the word   andwords related to the word “charge”, we find that such words as “redeem”,“redemption”, “foreclosure”, “reconveyance”, “equitable charge” are stillretained in the Malaysian rules.   Theyare actually out of place. Take “foreclosure” forexample.   This is what the learned authorsays at page 1153 of Mallal’s Supreme Court Practice and I agree with him: “(c)Foreclosure:   When a mortgagor has failedto pay off the mortgage debt within the time agreed, the mortgagee mayforeclose, i.e. he may bring an action asking that a date be fixed on which themortgagor must pay off the debt or be foreclosed of his equity of redemption,i.e. deprived   or debarred of his rightto redeem.   Another effect of theforeclosure is to vest the property absolutely in the mortgagee: s.30(2)Conveyancing and Law of Property Act Cap.268. Aforeclosure action is not available under the N.L.C.   The chargee can apply to Court for sale ofthe charged lands under the N.L.C.   Buteven in England, foreclosure actions are now comparatively rare in practice, asthe mortgagee’s remedy by sale, under the power of sale conferred on him by themortgage deed or by the Law of Property Act 1925, s.101, is in general morespeedy and convenient.” In other words, since, ina mortgage, the title passes to the mortgagee with the mortgagor retaining theright of redemption, when the mortgagor defaults in the payment of the mortgagedebt, the mortgagor “forecloses” i.e. bars the mortgagor from exercising theright of redemption.   On the other hand,in a charge, the title remains with the chargor.   If the chargor defaults in the payment of thedebt, the chargee may apply for an order of sale. Shanker J (as he thenwas) in Citibank, N.A. v. Ibrahim b. Othman (1994) 1 AMR 7, in tryingto   give some sensible meaning to theword “foreclosure” in the light of our NLC, said, at page 376: “Itseems to me pertinent to add that the ture meaning of “foreclosure” is aprocess whereby the mortgaged land “becomes absolutely his i.e. themortgagees.” (See STROUD’S JUDICIAL DICTIONARY 5 TH Edn. At p1010.)   Subject to correction the word“foreclosure” does not seem to appear anywhere in Part Sixteen of the NLC.   Charged land in Selangor can only become theproperty of a chargee if he successfully bids for it in a sale ordered by theCourt.   In a loose sense therefore theterm foreclosure is being used to mean the steps taken for the sale of themortgaged property by a Court order or by a power of sale contained in themortgage so that the sale proceeds can be used to pay off the debt.” Regarding the word“equitable charge” in rule 1(2) of Order 83, the question is, is there such athing in our land law?   Is it notcontrary to the term “charge” as provided in the NLC?   If there is such a thing as an “equitablecharge” and since it is not a “charge” under the NLC   could the remedies provided in the NLC bemade available in relation to such a “charge”?   The former Federal Court in Mahadevan s/o Mahalingam v. Marilal &Sons (M) Sdn. Bhd. (1984) 1 CLJ 286 seems to think that our law recognize“equitable charge”.   But, the court wasactually interpreting the words “mortgage or other charge” in section 2(1) ofthe Limitation Act 1953, an Act passed prior to the NLC and   the cases relied on were pre-NLC cases.   Thus Teo Keong Sood and Khaw Lake Teecommented at page 233   “…… it is doubtfulwhat his Lordship meant by the term “equitable charge””.   I shall say no more on this. “Redemption” is anothermisplaced term used in Order 83.   What is“redemption”?   I shall again quote thelearned author at page 1153. “(e)Redemption:   Redemption is the exerciseof the right of the mortgagor to pay off   the mortgage debt or charge upon the property and to have the propertyreconveyed to him free of the mortgage or charge.   An action or suit for redemption is thereforeone brought to compel the mortgagee to reconvey the property o payment of the debtand interest. Under   the N.L.C. the action is more properly onefor   discharge: s.278.”      Sois “reconveyance”.   This is what thelearned author says, at page 1153: “(f)Reconveyance of the property or its release from the security:   A mortgagee who has   received the repayment of the debt andinterest must reconvey   the title to themortgagor; a chargee   discharges the charge, in other words,releases the land from the security.” In other words, since ina mortgage, the title passes to the mortgagee, when the right of redemption isexercised, the title is reconveyed to the mortgagor.   On the other hand, in a charge, since thetitle remains with the mortgagor only the charge needs to be discharged. As a result, such Englishland law terms are being used interchangeably but erroneously with the termsused in the NLC:   “mortgage” for“charge”, “foreclosure” for “order for sale”, “redemption” for “discharge” etc.leading to confusion as they have different legal meanings.   In my view, to avoid confusion, it is betterthat we   stick to the terms used in theNLC 1965 and ignore those English land law terms even though they are used inOrder 83.   Order 83 is not land law andit cannot override or add to the provisions of the NLC regarding substantiveland law.   Coming now to remedies.   As regards the mortgagee’s remedies, it issufficient to   quote a passage fromFisher and Lightwood’s Law of Mortgage, Ninth Edition, by E.L.G. Tyler, M.A.(Oxon.), at page 268-269: “Themortgagee’s remedies – The mortgagee’s remedies for the recovery of the debtare either against the mortgagor personally, or by enforcement of thesecurity.   The remedy against themortgagor personally is by an action for the debt.   Usually the mortgage contains a covenant for payment, and the actionis on the covenant.   As just stated, themortgagee is entitled to preservation of the security, and in general, he isentitled to enter into possession immediately upon the execution of themortgage.   In the latter case he mayobtain repayment out of the rents and profits.   Or, without entering into possession, he can appoint a receiver.   Realisation of the security is effected bysale, or the mortgagee may by foreclosure, deprive the mortgagor of his equityof redemption, and himself become the owner of the property.   Thus the mortgagee’s remedies are: (I)action on the debt; (2) appointment of a receiver; (3) possession; (4) sale;and (5) foreclosure. It must be stressedthat   that   there are two categories of remediesavailable to a mortgagee, one is a personal action against the mortgagor forthe recovery of the debt and the other is by enforcement of the security thatincludes possession, sale and foreclosure.   For a detailed discussion on this, see Low Lee Lian v. Ban Hin LeeBank Bhd . (1997) 1 MLJ 77 (F.C.). On the other hand, theNLC provides only two   remedies to achargee i.e. sale and possession.   It isunderstandable why the NLC does not talk about action for recovery of debt.   That is because the NLC only refers to theremedies of a chargee to enforce the charge.   It is not referring a personal action, which is a separate matter basedon   the covenant to pay under theagreement, which is quite properly provided for in Order 83 of the RHC 1980. The issue is whether rule3(3)(c) and rule 3(7) of Order 83 of the RHC 1980 apply to an application foran order for sale.   The order   for sale applied for is specifically providedfor by the NLC.   And, as has beenmentioned earlier, the Code only requires three things to be stated in thenotice: specifying the breach, requiring the breach to be remedied and warningof the danger of non-compliance with the notice – section 254.   When the order is made, the order shouldspecify the total amount due as on the date the order is made – section257(1)(e).   Strictly speaking, under theCode, that is all that is required to be disclosed to court regarding theamount due, to enable the court to specify the amount in the order. Coming now to rule 3 ofOrder 83.   That rule itself bears theheading “Action for possession or payment”.   It must be noted that “Remedies of chargees: Possession” is alsospecifically and separately provided for in the NLC in sections 270 to277.   Rule 3(1) goes on to say: “This rule applies to acharge action begun by originating summons in which the plaintiff is thechargee and claims delivery of possession or payment of moneys secured by thecharge or both.”       Whatdoes the provision mean?   Clearly, itmeans what it says:   it only applies to acharge action in which the plaintiff is the chargee and claims delivery ofpossession (under Chapter 4, Part Sixteen of the NLC) or for payment of moneyssecured by the chargee or both.   That toois what the heading of rule 3 or Order 83 says. I do not think that it isa question of what rule of interpretation to apply, literal or purposive.   There is no ambiguity or absurdity aboutit.   The rule says clearly that itapplies to application for delivery of possession and for payment of moneyssecured by a charge, but does not say that it is applicable to an applicationfor an order of sale. Effect must be given to it. Let us now look at thedecided cases on this point. In Citibank, N.A. v.Ibrahim b. Othman (1994) 1 AMR 7, the chargee applied for an order for saleof the charged land.   One of the issuesdiscussed was whether Order 83 rule 3 of the “RHC 1980” applied to thecase.   Mahadev Shankar J (as he thenwas), inter alia, held at page 373 to 374: “ WhereOrder 83 r.3(3) applies , the affidavit must show the state of the accountbetween the chargor and the chargee with particulars of the amount of theadvance, the repayments, the interest in arrears at the date of the issue ofthe originating summons and the date of the affidavit and the amount remainingdue under the charge.   This rule applieswhere the plaintiff claims delivery of possession.   The particulars (aforesaid) are hereafterreferred to as the statutory particulars. Order 83 r 3(6) providesthat where the plaintiff claims payment of moneys secured by the charge ,the affidavit must prove   that the moneyis due and payable and give the particulars mentioned in Order 83 r3(3).   And by paragraph (7) if interest is claimedon the judgment the affidavit must state the amount of a   days interest.” (emphasis added). It is to be noted fromthe passages quoted above, the learned Judge was actually saying that Order 83rule 3 (3) applies where the plaintiff claims for delivery of possession andOrder 83 rule 3(6) where the plaintiff claims for payment of moneys secured bythe charge.   And, if in such claims i.e.for delivery of possession and/or for payment of moneys, interest is claimed,then paragraph (7) also applies. However, having said thatthe learned Judge held at page 376: “….   Reading Order 83 r.1 (1)(a)(b) and (c), r3(3)and r3(6) together, I think it was incumbent on the plaintiff to provide thestatutory particulars in the first affidavit.” Perwira   Affin Bank Berhad v. Tan Tian Ser (1995) 2 CLJ 133 is anapplication for an order for sale pursuant to section 256 of   the NLC.   One of the grounds put forward was that the interest in arrears on theterm loan was not stated as required by paragraph (c) of rule 3(3) of Order83.   Even though the judgment of thelearned Judge, Abdul Aziz Mohamad J (as he then was) on this point is ratherlong,   I think it is worth quoting.   It meticulously answers the arguments on theissues under discussion.   This is whatthe learned Judge says at page 135 to 139: “The instances mentionedby learned Counsel for the defendant of non-compliance of the affidavit with para.(3) (of order83 rule 3 of the RHC 1980 – added) were that the amount of the overdraftfacility actually used had not been stated, as required by subparagraph (a) ofpara (3), and that the interest in arrears on the overdraft and the instalmentsin arrears on the term loan had not been stated, as required by subparagraph(c). Learned Counsel for thedefendant did not, however, question the correctness of the figures in theaffidavit in support of this application or in any of   the subsequent affidavits of the plaintiff. In my opinion paras (2),(3) and (6) do not apply to this application and therefore do not have to becomplied with by the affidavit in its support.   My reasons follow. Order 83 applies to charge actions.   By para (1), read together with para (3), ofr.1, a charge action is: …… any action (whetherbegun by writ or originating summons) by a chargee or chargor or by any personhaving the right to foreclose or redeem any charge, being an action inwhich   there is a claim for any of thefollowing reliefs namely: (a) paymentof moneys secured by a charge; (b) saleof the charged property; (c) foreclosure; (d) deliveryof possession (whether before or after foreclosure or without foreclosure) to the chargee by thechargor or by any other person who is or is alleged to be in possession of theproperty; (e) redemption; (f) reconveyanceof the property or its release from the security; (g) deliveryof possession by the chargee. By the second sentence ofpara (1) of r.3, r.3 only “applies to a charge action begun by originatingsummons in which the plaintiff is the chargee and claims delivery of possessionof payment   of moneys secured by thecharge or both”.   The types of chargeaction intended by that sentence are those falling under subparagraphs (d) and(a) of para (1) of r.1.   So para (2) ofr.3 applied only to those twotypes of charge action.   Paragraph (3) ofr.3 is expressed   to be applicable to acase where the plaintiff claims   deliveryof possession and, by para (6) applies also to a case where the plaintiffclaims payment of moneys secured by the charge.   So the types of charge   action towhich para (3) applies are   also thosefalling under subparagraphs (d) and (a) of para (1) of r.1. An application for   an order for sale under s.256 of the National Land Code, as theapplication in this case is, is not an action in which there is a claim forpayment of moneys secured by the charge and therefore is not a type (a) chargeaction.   The claim under s.256 is for thesale of the charged property, which makes it a type (b) charge action, to whichr.3 does not apply.   If the RulesCommittee had intended that r.3 should apply to the type of charge action inwhich there is a claim for   the sale ofthe charged property, that is the type (b) charge action, they would, afterexpressly including that type in r.1, have included a mention of it in r.3, butthere they have made mention only of types (a) and (d) charge action. It may be thought thatwhere a chargee applies for an order for sale under the National Land Code heis in effect bringing an action in which there is a claim for payment of moneyssecured by the charge, that is a type (a) charge action, because the purpose ofthe sale is to get in moneys from the charged property in or   towards settlement of the debt secured by thecharge.   But such an interpretation wouldbe one that is contrived and that ignores the plain meaning of the words“….   A claim for … (a) payment of moneyssecured by the charge” in para (1) of r.1.   The plain fact is that where the amount secured by a charge is now, say,RM500,000 and   the chargee applies for anorder for sale of the security, he is not asking the Court to order the chargorto pay him that amount.   He is, as theSupreme Court said in Kandiah Peter a/lKandiah v. Public Bank Berhad [1993] 2 AMR 49 3464, not suing for adebt.   He is merely asking that thesecurity that he holds be sold.   The salemight bring in for the chargee only RM300,000.   There would still be another RM200,000 owing, which the debtor is yet tobe order to pay to the chargee. Moreover, if the RulesCommittee had intended the type (a) charge action to include or also mean a charge action where thechargee seeks the remedy of a sale of the charged property, which is what anapplication under s.256 of the National Land Code is, they would not haveneeded to itemize expressly and separately the type (b) charge action in para(1) of r.1. I think the type (a)charge action should be construed as being confined to what it is plainlydescribed as, namely   “… an action inwhich there is a claim for … (a) payment of moneys secured by the charge”, forwhich, I might add in passing, para (6) of r.3 requires that the plaintiff mustprove that the moneys are due and payable. The question of theapplication of r.3 of O.83 to an application for an order for sale under s.256of the National Land Code was raised in CitibankNA v. Ibrahim bin Othman [1994] 1 MLJ 608, where Mahadev Shankar J, at pp612 and 613, after agreeing with Abdul Razak J in Malayan Banking Berhad lwn. Dagang Bina Sdn. Bhd. [1991] 3 CLJ1739, and expressing his opinion on the meaning of “foreclosure”, concluded: Citibank hereapplied for an order of sale in order to effect payment of moneys secured bythe charge.   Reading O.83rr.1(1)(a),(b),(c), 3(3) and 3(6) together.   I think it was incumbent on the plaintiff to provide   the statutory particulars in the firstaffidavit.      It would appear that heconsidered   that an application for anorder for sale is in effect a claim for payment of moneys secured by thecharge, as to which I have already given my reasons for thinking otherwise. AbdulRazak J, at p.1740 of the above-mentioned case, had this to say:      “ Saya berpendapatsebaliknya plaintiff   adalah terbabitkepada k.3(3).   Mungkin tindakan menjualadalah satu remedi yang berasingan, seperti mana k.1(1)(a) itu mendedahkan,tetapi tidak dapat dielakkan, dengan secara langsung atau tidak langsung, tindakanmemohon wang yang dihutang itu dibayar adalah juga   tindakan yang ternyata mesti dilakukan terlebihdahulu, sebelum tanah cagaran itu boleh dijual.   Oleh itu, sungguhpun k.3(1) itu tidak menyebut ianya sebagai proseduryang membabitkan penjualan tanah cagaran, pengertiannya tidak dapat tidakmestilah begitu, jika tidak keadaannya yang agak ganjil dan bercanggah akanberlaku, di mana apabila permohonan untuk mendapatkan wang yang dijamin olehcagaran itu memerlukankira-kiranya itu ditunjukkan, tetapi apabila harta yang dicagar itu hendakdijual, kira-kira itu tidak diperlukan walhal, apabila tanah itu hendak dijualkira-kira itu lebih-lebih lagi dipentingkan.   Bahkan kedua—dua remedi itu berkait, kerana, sebelum ia boleh dijual,perlu dipasitkan wang yang dihutang itu belum dan tidak dibayar; tafsiran iniadalah sejajar dengan peruntukandi bawah s.257 Kanun Tanah Negara yang mensyaratkan bahawa sebelum Mahkamahmembuat perintahmenjual, ia hendaklah menentukan jumlah wang yang dihutang, dan s.256menyatakan prosedurnya adalah mengikut prosedur sivil di Mahkamah yang tidakdapat tidak bermakna kk.83 itu sendiri.   Kalau Mahkamah tidak dilengkapkan dengan prosedur menjual bagaimanakahtindakan itu boleh dilakukan, jika Kanun Tanah Negara itu sendiri tidakmempunyai prosedur itu.” It does not appear thatthe reason he considered para (3) of r.3 to be applicable to   an application for an order for sale wasbecause such an application is in effect   an application for payment of moneys secured by the charge.   His reason appears to be based on   considerations of consistency oftreatment.   He thought that if a claimfor payment of moneys secured by the charge must show the state of the accountbetween the chargor and the chargee, there was greater need for it to be shownwhere the land charged is to be sold. But the treatment of anapplication for an order for sale must necessarily be different from that of anaction for payment of moneys secured by the charge because the conditions forthe success of an application for an order for sale are   subject to the National Land Code whereas theconditions for the success of an action for payment of moneys secured by thecharge are not. Under s.254 of   theNational Land Code, for a chargee to   beentitled to apply for an order for sale, there must have been a breach by thechargor of any of his obligations under the charge for   the prescribed period, followed by a noticein Form D specifying the breach and requiring it to be remedied within theprescribed period and warning that the chargee will take proceedings to obtainan order for sale if the notice is not complied with, and there must have beena failure to remedy the breach at the expiry of the period.   If all those requirements are met, thechargee is entitled to apply for an order for sale.   Therefore his application need only provethose conditions.   Under s. 255, to beentitled to apply for an order for sale, the chargee need only show that theprincipal sum secured by the charge is payable on demand, that there has been ademand in Form 16E, and there has been a failure to pay within the prescribedperiod.   Under those sections there wouldbe no necessity for the chargee, to qualify him to apply for an order   for sale, to show the state of the accountbetween the chargor and the chargee by giving the particulars specified in para(3) of r.3.    In fact, by virtue ofsubsection (3) of s.256,the chargee, if his application shows the National Land Code preconditions forapplying have been fulfilled, he is prima facie entitled to an order unless theexistence of a cause to the contrary is shown.   If the chargor thinks there exists a cause to the contrary, it is up tohim to satisfy the Court that it exists.   If the correctness of the state of the account between him and the chargee isrelevant to the cause, he may question the correctness of the account, givinghis reasons, and the chargee may in reply try to defend the correctness of theaccount.   So if the correctness of theaccount is relevant to determining whether in law   there is cause against the making of an orderfor sale, that question may be raised by the chargor at a stage subsequent tothe chargee’s making of his application, without the chargee having to showparticulars of the state of the account at the time that he makes his application.   I might remark that it often happens thatpoints about correctness of account that are raised by the chargor are notactually relevant to the question of “cause to the contrary” but rather to thequestion of specifying in the order for sale the correct total amount due tothe chargee at the date on which the order is made, as required by para (c) ofsubsection (1) of s.257. In those cases the breaches or defaults may be clear,no positive attempt may have been made to show that the chargor has notdefaulted or been in breach, yet an attempt is made to   question the correctness of the accountbetween the chargor and the chargee. While on the subject ofthe requirement of para (c) of subsection (1) of s.257, I would like to makethe following observations. What is required for thepurposes of that paragraph would be an affidavit filed before the date on whichthe order is expected to be made and stating what would be the amount due onthat future date.   If no order is givenon that date and is expected to be given on a subsequent date, another suchaffidavit is put in before the subsequent date stating the amount that would bedue on that date.   The need for aaffidavit as to the amount due to be put in every time that a hearing of anapplication for an order for sale is postponed is due solely to the requirementof para (c) of subsection (1) of s. 257. I have noticed that theseperiodic affidavits for the purposes of para (c) of subsection (1) of s. 257have tried to be faithful to the requirement of para (3) of r.3 as to thegiving of the particulars specified therein, with the particulars modified soass to show also the amount due on the expected date of the order, and havesometimes been referred to as the affidavit in compliance with para (3) of r.3of O.83.   But I think those particularsare not meant to fulfil the needs of para (c) of subsection (1) of s.257.   Those particulars are to be given only once,that is – as stated in para (1) of r.3 – in the affidavit in support of theoriginating summons by which the action to which the rule applies isbegun.   Furthermore the particularsspecified do not   reflect the needs ofpara (c) of subsection (1) ofs.257 because there is no requirement as to stating the total amount due at thedate on which the order for sale is to be made.   In fact it would be impossible to lay down that requirement in r.3 as itwould be referring to an order for sale in a provision which, as expresslystated, applies only to claims for delivery of possession and payment of moneyssecured by the charge. One of the ancillaryprayers in this   application, that is the sixth prayer,is “bahawa defendan hendaklah memberikan milikan kosong tanah tersebut dalamtempoh tujuh (7) hari selepas jualan   tanah ini”.   The question iswhether that prayer makes this application a type (d) charge action is delivery of possession tothe chargee by the chargor or whoever else is in possession of theproperty.   That relief must relate tothe   remedy of possession of the chargeewhich is dealt with in Chapter 4 (comprising ss.270 to 277) of Part Sixteen ofthe National Land Code.   The remedy ofpossession is an alternative to the remedy of sale, which is dealt with inChapter 3 (comprising ss.253 to 269), or vice versa.   The chargee who wants a sale cannot be wantingpossession.   One cannot have possessionand sell or sell and have possession, at the same time.   Since in this case the plaintiff is seekingthe remedy of sale, it cannot be that it also is seeking the remedy ofpossession.   I should add in passing thatthe affidavit in support of the originating summons by which a chargee begins atype (d) charge action must, bypara (4) of r.3, “give particulars of every person who to the best of theplaintiff’s knowledge is in possession of the charged property”, but no suchparticulars have been given in the affidavit in support of this application. It may be argued   that the vacant possession intended by thesixth prayer is not vacant possessionto the chargee but to the buyer.   If thatbe the case, the relief sought is not included in r.1 of O.83, and the questiondoes not arise atall   whether that prayer makes thisapplication a charge action to which O.83, particularly r.3, applies. As, for cause against themaking of an order for sale, the defendant relies only on non-compliance of theaffidavit in support of this application with paras (2), (3) and (6) of r.3,and as, in my opinion, r.3 does not apply to this application, the defendantmust fail in his opposition to the making of an order for sale and I must makethe order.”      Then comes the Supreme Court judgment in Maimunah bte.Megat Montak v. Mayban Finance Bhd . (1996) 2 MLJ 422.   For   the issue arising in that case I shall quote the judgment of EdgarJoseph FCJ, delivering the judgment of the court at page 423: “…….   It was common ground that the order for saleaforesaid had neither fixed the auction date nor stipulated the amount actuallydue under the charge as required by s.257(1)(b) and (c) of the Code ….” So, the issue wasnon-compliance   with the provisions ofthe NLC.   Those   two   requirements mentioned are requirements of the NLC, not of Order 83 rule3 of the RHC 1980.   In a very briefjudgment; the Court held at page 424: “At the conclusion of theargument, we were unanimously of the opinion, that the provisions ofs.257(1)(a) to (d) were mandatory, and as the order   for sale in the present case had sufferedfrom the defects   herebefore mentioned,it was    thereby invalidated. Having said that, the judgment went on to say: “We would add, thatinsofar as there was a conflict of judicial opinion, as to the applicability ofthe provisions of O.83 r 3 of    the Rulesof the High Court 1980, to an application for an order seeking   enforcement of a charge registered under theCode, by way of an order   for sale, asappeared from the judgments of Shankar J (as he then was) in Citibank NA v Ibrahim bin Othman [1994]1 MLJ 608 on the one hand, and Abdul Aziz bin Mohamad J in Perwira Affin Bank Bhd. v Tan Tian Ser [1995] 2 CLJ 133 on theother, we preferred the reasoning and conclusion of Shankar J.” Thisparagraph is clearly an obiter.   That wasnot the issue as stated by the learned Judge himself which I have quotedabove.   The issue was non-compliance withthe provisions of section 257 of the NLC. Secondly,the judgment did not give any reason why Shankar J’s opinion waspreferred.   It merely said that the court“preferred the reasoning and conclusion of Shankar J.”   But, as has been shown, Shankar J had in fact   said that rule 3 applies to a claim fordelivery of possession.   But, having saidthat the learned Judge went on to hold that “it was incumbent on the plaintiffto provide the   statutory particulars….”   Shankar J also held that theobjective of Order 83 r 3(3) was “to tell the defendant how much precisely isbeing claimed so that he can make up his mind to contest or pay-up.” Withrespect, that may be the objective of the provision, but the issue is whetherthe provision applies.   The “objective”does not   make a provision applicable   if it is not applicable.   In any event, having said that, the learnedJudge (Shankar J) went on to say at page 379 to 380: “If he has any validdefences he must take them.   It is in thepublic interest that there should be an end to litigation.   I do not think it   right where the final order states   what is correctly due that a defendant, whohas been duly served with proceedings and elects not to take defences open tohim when he ought to do so, should be allowed to come long after the order hasbeen perfected, the period of appeal has lapsed and perhaps even after the salehas been concludedto say that because there was earlier omission to recite some of the statutoryparticulars the entire order should be set aside.   What applies to the defendant must equallyapply to his successor in title. What thechargor has lost where there is a failure to comply   with Order   83 r3(3)is the opportunity to satisfy himself of the correctness of theamount claimed, and to challenge the figures if he is not.   A bare denial of a debt was neverenough.   The chargor also has an onus ifhe denies the amount claimed to say how much he admits owing.   In this kind of case the dismissal of theapplication for non-compliance   with someaspect of the rules does not extinguish the debt.   The chargee can start afresh but there willthen be additional costs interest and delay. This is the verysituation which Order 2r1(2) of the RHC 1980 was meant to cater   for.   The question is   whether thefailure to comply with the Rules can be cured by setting aside the proceedingsin whole or in part or by allowing some amendment to be made; all of which mustbe on such terms as to costs or otherwise as the Court thinks just.” Could it be that   the learned Judge thought that he was dealingwith a claim for delivery of possession?   Having said what he had said and quoted above, it is   also   quite difficult to follow why he decided as he did.   Unfortunately, the Supreme Court did not giveits own reason why it agreed with Mahadev Shankar J and not with Abdul AzizMohamad   J. On my part and withrespect I find Abdul Aziz Mohamad J’s analysis of   the provisions really admirable and hisreasons are very sound.   In thecircumstances, I agree with Abdul Aziz Mohamad J’s opinion that rule 3 of Order83 of   the RHC 1980 is not applicable toan application for an order for sale pursuant to section 257 of the NLC.   It applies to a claim for vacant possessionand a claim for payment of moneys secured by the charge, or both, as the ruleclearly says. In Asia CommercialFinance (M) Bhd. v. Kimden Housing Development Sdn. Bhd . (1999) 1 CLJ 489,James Foong Cheng Yuen J (as he then was) in setting aside an order for sale,on other grounds as well, said in respect of Order 83 r.3(3)(c) at page 490: “Thenon-compliance with O.83 r.3(3)(c) and O.83 r.3(7) of the Rules of the High Courtin this case, deprives the defendants of the knowledge of the exact amountoutstanding and interest due under the charge.   This is fundamental as the charge of the defendants’ property to theplaintiffs is related to loans granted to the defendants.   The defendants must be offered everyopportunity to repay the said loan before his property, which is only asecurity, is taken from him for good.   This opportunity for repayment, as seen in s.266 of the National LandCode, extends to “any time before the conclusion of the sale” by public auctionsubsequent to an order for sale by the Court.   The non-disclosure to the defendants of   the exact amount and interest due at relevant dates, are failures tocomply with statutory requirements that are   so serious as to render an order so made therefrom to be set aside. Iam in full agreement with Mr. Justice Razak’s decision in Malayan BankingBhd. lwn. Dagang Bina Sdn. Bhd . [1991] 3 CLJ 1739 where an order for salein a foreclosure proceeding was not allowed   due to the failure of the plaintiff bank in complying   with O.83 r.3(3) of the   Rules of the High Court, to disclose the amount of any interest orinstalment in arrears at the date of issue of their originating summons andat the date of their affidavit.” Actually, in thatjudgment it was assumed that the provision applies.    There is no discussion whether it applies ornot.   The judgment, as in otherjudgments, talks about the desirability of such a provision.   But whether it applies or not, the courtshould look at the clear words of the provision, not on its desirability,because, the function of   the court is tointerpret and apply the law, not to make   law, even if it thinks it is desirable to do so. In Bank PertanianMalaysia v. Zainal Abidin bin Kassim Ors . (1995) 2 MLJ 537, the applicationfor an order for sale was dismissed for failure to comply with the provisionsof Order 83 rule 3(3) and (6).   In thiscase too, the judgment proceeded on the assumption that the provisions wereapplicable.   It is pertinent to note thatthe learned judge made this finding at page 541: “Tomy mind, in view of prayer 1 and 2, the present application is not merely for asale of the charged property.   It isactually a claim for both: for payment of moneys secured by the charge as wellas for sale of the charged property.   In other words it is a claimfor the relief referred to in paragraph (1)(a) and (b) of r.1 of O.83.” There is no doubt thatrule 3 of Order 83 applies to a claim for moneys secured by a charge. The judgment of thiscourt in Low Lee Lian v. Ban Hin Lee Bank Bhd . (1997) 1 MLJ 77 was notconcerned with the specific provision of Order 83 rule (3) of the RHC1980.   It was mainly concerned with“cause to the contrary” in section 256(3) of the NLC.   In the Court’s advice to Judges this is whatthe judgment says at page 88: “Ajudge hearing an application under s 256 must bear in mind that the procedureunder the section is meant to be speedy and summary in nature.   He is first concerned with whether thechargee has given   the appropriatestatutory notices as stipulated in the Code.   Next, he must ensure that the procedural requirements prescribed by O83of the Rules of the High Court 1980 have been complied with.   Next, he is concerned with the very narrowquestion whether   the material producedbefore him by the chargor constitutes cause to the contrary.” That is a generalreference to Order 83, not a specific reference to order 83 rule 3.   Therefore, that judgment is quite neutral onthe applicability of rule 3 to an application for an order for sale. In Diamond Peak Sdn.Bhd. v. United Merchant Finance (formerly known as MUI Finance Berhad andMalayan United Finance Berhad (2003) 2 AMR 637 (C.A.), the order for salewas made on 2 September 1986 but no auction date was fixed by the learnedJudge.   The usual proceduresfollowed.   A number of auction dates werefixed by the Senior Assistant Registrar but the land could not be sold.   Then on 3 April 1997, after about six yearssince the order for sale was made, the appellant (chargor) applied, inter alia,to set aside the order for sale.   Twogrounds were   forwarded.   First, the order was invalid for non-conformitywith the provisions of section 257(1)(b) of the NLC in that the action datedwas not fixed by the learned Judge.   Thesecond ground was that the respondent had failed to comply with the provisionsof Order 83 rule 3(3)(c) and (6) of the RHC 1980. On the first ground, theCourt of Appeal, being bound by the decision of this court in Maimunah bte.Megat Montak v. Mayban Finance Berhad (supra) held that the order for salewas invalid. Of course, the Court ofAppeal had no alternative but to so decide on that issue.   As that issue is not before this court in theinstant appeal, I reserve my comments on the view of this court in Maimunahbt. Megat Montak (supra). On the second ground, theCourt of Appeal held that the respondent had “failed to comply with themandatory requirements of Order 83 rule 3(3)(c) and (6) of the RHC 1980 theorder for sale ought to be set aside.” Four months after thatjudgment was delivered, the Court of Appeal had another occasion to   consider Order 83 rule (3) of the RHC1980.   This happened in Chong KeatRealty Sdn. Bhd. v. Ban Hin Lee Bank Berhad (2003) 4 AMR 421 (C.A.).   The charge was executed in 1986.   The appellant (chargor) having defaulted tomake repayment, the respondent (chargee), in 1988, took out an originatingsummons for an order for sale.   Theoriginating summons was served on the appellant.   The appellant entered appearance and retainedcounsel who appeared on the date appointed for the hearing of the summons.   No affidavit in opposition to the bank’sapplication was filed by the appellant.   No objection was taken as to the non-observance of Order 83 rule (3) ofthe RHC 1980.   On 5 April 1989, the judgemade the order for sale.   The usualprocedural steps to have the land sold by public auction were taken by therespondent.   But, the land could not besold as there were no buyers.   Then, on 9March 1997, i.e. eight years after the order for sale was granted, theappellant took out a summons to set aside the order for sale.   The High Court dismissed the summons.    The appellant appealed to the Court ofAppeal.   One ground was advanced i.e. theorder for sale was invalid because the affidavit in support of the originatingsummons did not comply with Order 83 rule 3 of the RHC 1980 as it did not statethe amount due as at the date on which the court was being moved for the orderfor sale. The Court of Appealdismissed the appeal.   The court, interalia held that the order for sale was not a nullity.   Considering the delay in making theapplication and the circumstances of the case, the court held that was an abuseof the process of the court by the appellant. Note the similarities ofthe facts in Diamond Peak Sdn. Bhd . (supra) with Chong Keat RealtySdn. Bhd . (supra) and the instant appeal.   In all the three cases, not only the facts are similar, the dates areproximate and even the solicitors and the and the counsel are the same.   Chong Keat Realty Sdn. Bhd .(supra) wasa later decision of the Court of Appeal and in fact Diamond Peak Sdn. Bhd. (supra)was referred to, discussed and distinguished.   This is what Gopal Sri Ram JCA, delivering the judgment of the Courtsaid about Diamond Peak Sdn. Bhd (supra) said at page 426: “Wehave carefully examined that case and find it readily distinguishable from thepresent.   In Diamond Peak, the principle ground of complaint was the breach bythe chargee of the mandatory provisions of s 257(1)(b) of the National LandCode 1965.   This court found thiscomplaint to be entirely justified.   Itaccordingly set aside the order for sale despite a delay of six years on thepart of the chargor in making its application and despite the order having beenmade in the presence of the chargor’s counsel.   This is entirely in keeping with the principle enunciated by Mohd. AzmiFCJ in Badiaddin and no difficulty isthereby occasioned.   However, this courtalso relied on the chargee’s failureto observe the mandatory requirements of RHC Order 83 r3 as an added reason forsetting aside the order for sale.   Thiswas not a point strictly necessary for the outcome of the case on its merits.   It is therefore pure obiter.   Had counsel for the chargee brought thedecision of the former Federal Court in HockHua Bank v Sahari bin Murid to the attention of the division of this courtthat heard the Diamond Peak’s case,the result may well have been different.”           I agree with him.      I shall omit theother decisions of the High Court on the issue. What do we have?   The only judgment that thoroughly analyzedthe provisions of Order 83 rule 3 is the judgment of Abdul Aziz Mohamad J in PerwiraAffin Bank Berhad (supra).   He paidmeticulous attention to the provisions of the Order and the rule.   The others merely assumed that Order 83 rule3(3)(c)   applied to an application for anorder for sale because it would enable the chargor to know the exact amount ofinterest or instalments in arrear at the date of   the issue of the originating summons and atthe date of the affidavit.   I find thejudgment of Mahadev Shankar J in Citibank N.A. (supra) quite difficultto follow, because having said that that rule applies to a claim for deliveryof possession and that that was “the very situation which Order 2 r1(2) of theRHC 1980 was meant to cater for”, went on to dismiss the application for anorder for sale.   The Supreme Court in Maimunahbte Megat Montak (supra) while saying, albeit obiter, that it preferred CitibankN.A . (supra) to Perwira Affin Bank Berhad (supra), did notelaborate, nor gave its own reasons.   TheCourt of Appeal, whether obiter or not in Diamond Peak Sdn. Bhd . (supra)without analyzing the provisions of the rule held that the requirement of therule was mandatory.   Four months later,the same court, in Chong Keat Realty Sdn. Bhd . (supra) “distinguished”it and in fact said that the view of the court in Diamond Peak Sdn. Bhd .(supra) was only obiter and took a different approach towards proceduralirregularities. I agree with the approachtaken by the Court of Appeal in Chong Keat Realty Sdn. Bhd. (supra).   There are many other decisionsto support that approach which I shall not discuss – see for example: Mokhtarbin Amin v. Mohamed Mokhtar bin Omar (2001) 4 MLJ 329 (CA); Shaheen bt.Abu Bakar v. Perbadanan Kemajuan Negeri Selangor & 2 other cases (1996)2 CLJ 965 (C.A); Sunk Yong International Inc. v. Malayan Rubber DevelopmentCorporation Bhd . (1992) 2 MLJ 146 (S.C); Vincent Tan See Yin v Noone& Company & Anor (1995) 2 CLJ 195 (S.C.); Asiah Abdul Mnap &Anor v. Capital Insurance Berhad (1998) 4 CLJ 257 (F.C); Tan Chwee Geok& Anor v. Khew Yen-Yen & Anor (1975) 2 MLJ 188 (F.C.).   As far as I am aware andhave been shown to us, to date, Abdul Aziz Mohamad J’s judgment in CitibankN.A. (supra) is the only judgment that had really and thoroughly analyzedthe provisions of Order 83 rule 3 of the RHC 1980. In the circumstances, Ido not think that it can be said that the courts had consistently held thatOrder 83 rule 3 of the RHC 1980 was applicable to an application for anorder    for sale.   It is   still an open issue, at least as far as this court is concerned. On mypart, I agree with Abdul Aziz Mohamad J that it is not applicable and for thereasons given by him.   Where a rulespecifically says that it is applicable to A and B, it is not for the court tosay that it is also applicable to C.   That amounts to amending the provision   which is not the function of the courts. Now, assuming for amoment that rule 3 of Order 83 is applicable to an application for an order forsale, should the order be set aside, considering the circumstances of thecase?   I do not think so.   The reasons have been given by Gopal Sri RamJCA, delivering the judgment of the court in Chong Keat Realty Sdn. Bhd. ,with which I agree entirely.   Theapplication to set aside, in the circumstances of instant appeal, as in CheongKeat Realty Sdn. Bhd . (supra) is an abuse of the process of the court.   It is also wrong to treat every rule of courtas mandatory and every breach of it results in an order being invalid.   The requirements of section 257 of the NLCstand on a different footing and a breach thereof could   have a different effect as in Maimunah bteMegat Montak (supra). Question 3      For clarity, I would paraphrase the third question thisway.   First, whether the decision of theCourt of Appeal in holding that the non-compliance with the provisions of Order83 rule 3 by including the sum claimed as due in the order for sale is inconflict with the decision of this court in Low Lee Lian (supra).   Secondly, whether in holding that the factthat the notice of variation of the   interest rate had not been given renders the order   for sale defective   conflicts with Low Lee Lian (supra). First, let us look at LowLee Lian (supra).   In Low Lee Lian (supra) the chargee   applied for an orderfor sale which was resisted by the chargor.   However, after a hearing, the order for sale was made.   The chargor appealed. In the Court of Appeal,there were three issues but only one is presently relevant i.e. the effect ofthe chargee varying the rate of interest without giving notice to thechargor.   From my reading of the judgmentthe court did not specifically address the issue.   Instead, it   focussed on a larger issue of “cause to the contrary”.   The court held that as no “cause to thecontrary” could be shown, the order for sale was rightly made.   The court also held that it was notsufficient to allege mere breaches by the chargee of the loan agreement or eventhe terms of the annexture to the charge in order to resist an applicationunder section 256(3) of the NLC.   Inother words, by alleging that the chargee had varied the interest rate withoutgiving notice, which, if true, is merely a breach of the loan agreement and/orthe annexture to the charge, is not sufficient to show “cause to the contrary”. Coming back to   the instant appeal.   The issue in the second limb as paraphrasedby me i.e. varying the rate of interest without giving notice, was not discussedby the learned High Court Judge. It could be that it was not argued as aseparate point.   However, in the Court ofAppeal, this argument was raised, as can be seen from the judgment.   In the judgment, the learned Judge of theCourt of Appeal said: “Weagreed with the learned counsel for     the appellant that when the second offer was made and accepted it wasstated clearly that that offer would extinguish the first offer upon which thefirst charge was based and the first offer was of no consequence anymore.   The second charge made it very clear that therate of interest is 2% above BLR.   As Ihad stated earlier, the rate of the BLR is not stated anywhere in the charge.   As such, the appellant was left in the darkas to the actual rate of interest applicable.   This was further confounded by the fact that in the amount claimed alsoincluded interest rate which had been varied.   Secondly, the learned counsel for the appellant also contended that the respondent arbitrarilyvaried the interest rate from 15.5% per annum to 16.5% per annum when therespondent made the application for the order for sale.   Nowhere in the affidavits of the respondentthat the respondent had given notice in writing of the variation as required bythe charge instrument.   As such it isclear to us that the respondent had not complied with Order 83 rule 3 of theRules of the High Court.” I am not sure whether thelearned Judge had “cause to the contrary” in mind when he talked about thefailure to give notice to vary the rate of interest.   All he said was that it was contrary to therequirement of Order 83 rule 3 of the RHC 1980 and because of that the orderfor sale was invalid.   However, whetherhe had “cause to the contrary” and section 256 of the NLC in mind or not, byholding that the order for sale should not have been made, he must have beensatisfied that “cause to the contrary” had been shown.   And, if he in fact meant that “cause to thecontrary” had been shown because of the failure to give notice, then clearlythat would be contrary to what had been held by this court in Low Lee Lian (supra). Regarding the first limbof the third question as has been paraphrased by me, as has been pointed out,section 257(1)(c) of the NLC requires that the order for sale “shall …….   specify the total amount due to the chargeeat the date on which the order is made.”   The “total   amount due”   clearly includes interest.   So, the inclusion of the interest in the“total amount due” in the order for sale is a requirement of the section.   It has to be included.   So the issue really is, whether by notstating the amount of interest separately as required by Order 83 rule 3(3)(c)and (7) is in conflict with Low Lee Lian (supra).   But, Low Lee Lian (supra) onlymentions Order 83 in passing.   It did notsay whether failure to comply with Order 83 amounts to “cause to thecontrary”.   In fact, it did not even saythat Order 83 r.3 must be complied. So, it cannot be said whether suchnon-compliance was in conflict or not with Low Lee Lian   supra. In any event, as I haveheld, it must be pointed out that the particulars mentioned in paragraph (3) ofrule 3   need only be given where thechargee claims payment of moneys secured by the charge.   This is an application for an order for sale. To summarize, my answerto the second question is that Order 83 rule 3(3)(c) and (7) of the RHC 1980 donot apply to an application for an order for sale under section 256 of theNLC.   Therefore, the failure to complywith the said rules does not render the order for sale defective and should beset aside.   Even if the said ruleapplies, the circumstances of this case do not warrant the order for sale to beset aside.   As regards the thirdquestion, if the Court of Appeal meant to say that failure to give notice tovary the rate of interest amounts to “cause to the contrary”, it would becontrary to Low Lee Lian (supra).   Low Lee Lian (supra) did not decide whether Order 83 rule 3 mustbe complied.   As such, it cannot be saidwhether non-compliance thereof is in conflict with Low Lee Lian (supra)or not. In the circumstances, Iwould allow this appeal with costs, confirm the order of the learned Judge ofthe High Court and direct that the deposit be refunded to the Appellant. 10 August 2005.                    (DATO’ ABDUL HAMID BIN HAJI MOHAMAD)                          HAKIM MAHKAMAH PERSEKUTUAN                                  MALAYSIA. Counsel of the Appellant:   Mr. Porres P. Royan with SM   Yoong   and M.F. Wong Messrs Shook Lin & Bok   55, Jalan Raja Chulan Kuala   Lumpur.                                                                                                                   Counsel of the Respondent:    Dato’ Mahinder Singh Dulku together withHarjit Singh a/l Harbans Singh.                              MessrsHarjit Singh Sangay                              &Company                              KingStreet                              10200Pulau Pinang.                             ",226);arrFiles[4]=new Array(640,"http://www.kehakiman.gov.my/jugdment/fc/latest/01-19-2004(W)_files/filelist.xml","2005-08-11","filelist.xml","","","",1);arrFiles[5]=new Array(641,"http://www.kehakiman.gov.my/jugdment/fc/latest/01-19-2004(W)_files/header.htm","2005-08-11","header.htm","","","PAGE   PAGE   11",3);arrFiles[6]=new Array(642,"http://www.kehakiman.gov.my/jugdment/fc/latest/01-19-2004(W)_files/_vti_cnf/filelist.xml","2005-08-23","filelist.xml","","","",1);arrFiles[7]=new Array(643,"http://www.kehakiman.gov.my/jugdment/fc/latest/01-19-2004(W)_files/_vti_cnf/header.htm","2005-08-23","header.htm","","","vti_cachedlinkinfo:VX|H|../01-19-2004(W).htmvti_cachedsvcrellinks:VX|FHUS|jugdment/fc/latest/01-19-2004(W).htmvti_cachedneedsrewrite:BR|falsevti_cachedhasbots:BR|falsevti_cachedhastheme:BR|falsevti_cachedhasborder:BR|falsevti_metatags:VR|HTTP-EQUIV=Content-Type text/html; 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