MALAYAN BANKING BERHAD ONG CHIN YET

MALAYAN BANKING BERHAD ONG CHIN YET

The Plaintiff, as a secured creditor, validly elected under section 8(2) Insolvency Act 1967 to stand outside the Defendant's bankruptcy and to enforce its statutory remedy in rem under s256 National Land Code without naming the DGI; the DGI was served and gave no objection; there was no statutory breach, and the Order for Sale was regularly obtained and therefore not set aside.

Citation
BA-24FC-897-09/2023 (Mahkamah Tinggi)
Parties
Plaintiff/pemegang Gadaian: Malayan Banking Berhad (3813-K); Defendant/penggadai: Ong Chin Yet (No. K/P: 620922-10-6467/6835782)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 April 2024
Case Number
BA-24FC-897-09/2023 (Mahkamah Tinggi)
Procedural Posture
Foreclosure (order for Sale) Originating Summons Under National Land Code and Insolvency Act / Application to Set Aside Order for Sale; Judgment Dismissing Application
Outcome
Defendant's application to set aside the Order for Sale dismissed
Legal Topics
Order for Sale/foreclosure, Section 8(2) Insolvency Act (secured Creditor Election), Section 83 Insolvency Act (official Name of Dgi), Action in Rem Vs Action in Personam, Functus Officio, Service and Notice Requirements
Source Language
Malay/English
Insolvency/bankruptcy Law Property Law Civil Procedure Order for Sale/foreclosure Section 8(2) Insolvency Act (secured Creditor Election) Section 83 Insolvency Act (official Name of Dgi) Action in Rem Vs Action in Personam Functus Officio +1 more

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Parties

Malayan Banking Berhad (3813-K)

Plaintiff/pemegang Gadaian

Ong Chin Yet (No. K/P: 620922-10-6467/6835782)

Defendant/penggadai

Procedural Posture

Foreclosure (order for Sale) Originating Summons Under National Land Code and Insolvency Act / Application to Set Aside Order for Sale; Judgment Dismissing Application

Legal Issues

  1. 1 Whether failure to name the Director General of Insolvency (DGI) pursuant to s83 IA renders the Order for Sale void
  2. 2 Whether a secured creditor may proceed to realize security without joining the DGI under s8(2) IA
  3. 3 Whether foreclosure under s256 NLC is an action in rem and thus does not require the DGI as party

Ratio Decidendi

The Plaintiff, as a secured creditor, validly elected under section 8(2) Insolvency Act 1967 to stand outside the Defendant's bankruptcy and to enforce its statutory remedy in rem under s256 National Land Code without naming the DGI; the DGI was served and gave no objection; there was no statutory breach, and the Order for Sale was regularly obtained and therefore not set aside.

Court Disposition

Defendant's application to set aside the Order for Sale dismissed

Orders

  • Defendant's application in Enclosure 11 dismissed with costs of RM8000.00
  • Order for Sale dated 30 October 2023 upheld