THAMEEZ NISHA HASSEEM(sebagai Pentadbir Harta Pusaka Bee Fathima) MALAYAN ALLIED BANK BERHAD

THAMEEZ NISHA HASSEEM(sebagai Pentadbir Harta Pusaka Bee Fathima) MALAYAN ALLIED BANK BERHAD

Section 21(1) Limitation Act 1953 applies to charge actions; the 12‑year limitation period commences from the date of the chargor's default in repayment (not from expiry of the Form 16D remedial period); where the chargee fails to commence enforceable proceedings within that period the chargee's statutory right to obtain an order for sale is barred and s340(4)(b) NLC is engaged so that the chargor may defeat the registered interest and obtain return of the issue document of title and a registrable discharge under s244(1) NLC and Order 83 r1 ROC; declaratory relief is an appropriate remedy in these circumstances.

Citation
02(f)-73-09/2019(P) (Mahkamah Persekutuan)
Parties
Appellant/plaintiff: Thameez Nisha Hasseem (As the Administrator of the Estate of Bee Fathima, Deceased); Chargor/1st Defendant: Charijah Bt Ameerdin Mohamed Shariff; Respondent/chargee/2nd Defendant: Maybank Allied Bank Berhad
Court
f
Jurisdiction
Malaysia
Judgment Date
28 February 2023
Case Number
02(f)-73-09/2019(P) (Mahkamah Persekutuan)
Procedural Posture
Civil Appeal (charge/land Title Dispute) / Final Judgment on Appeal Answering Certified Questions of Law
Outcome
Appeal allowed
Legal Topics
Limitation Act 1953 S21(1), National Land Code 1965 S340(4)(b), Order for Sale Under NLC, Declaratory Relief, Return/discharge of Title, Operation of Law to Determine Title
Source Language
Malay/English
Property Law Land Law Civil Procedure Contract Law Equity Banking Law Limitation Law Limitation Act 1953 S21(1) +5 more

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Parties

Thameez Nisha Hasseem (As the Administrator of the Estate of Bee Fathima, Deceased)

Appellant/plaintiff

Charijah Bt Ameerdin Mohamed Shariff

Chargor/1st Defendant

Maybank Allied Bank Berhad

Respondent/chargee/2nd Defendant

Procedural Posture

Civil Appeal (charge/land Title Dispute) / Final Judgment on Appeal Answering Certified Questions of Law

Legal Issues

  1. 1 Whether a chargee's registered interest is determined/extinguished by operation of law where the chargee fails to obtain an order for sale within the Limitation Act 1953 period
  2. 2 Whether section 21(1) Limitation Act 1953 applies to charge actions and when the limitation period commences (date of default v. expiry of Form 16D remedial period)
  3. 3 Whether a chargor is entitled to declaratory relief and return of issue document of title/discharge of charge where limitation is established

Ratio Decidendi

Section 21(1) Limitation Act 1953 applies to charge actions; the 12‑year limitation period commences from the date of the chargor's default in repayment (not from expiry of the Form 16D remedial period); where the chargee fails to commence enforceable proceedings within that period the chargee's statutory right to obtain an order for sale is barred and s340(4)(b) NLC is engaged so that the chargor may defeat the registered interest and obtain return of the issue document of title and a registrable discharge under s244(1) NLC and Order 83 r1 ROC; declaratory relief is an appropriate remedy in these circumstances.

Court Disposition

Appeal allowed

Orders

  • Declaration that the third party charge and MABB shall cease to have any estate or interest in the land and that MABB's rights to enforce the third party charge have extinguished by operation of law
  • Order that MABB deliver to the Appellant a discharge of the third party charge, duplicate charge, the Issue Document of Title and any related documents necessary to register the discharge within 30 days, failing which the discharge shall take effect by operation of law upon expiry of 30 days