BANK OF CHINA (MALAYSIA) BERHAD LEE KIM TIONG @ LEE KIM YEW

BA-24FC-445-06/2023 Kand. 36 24/03/2025 09:17:28 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN NO: BA-24FC-445-06/2023 Dalam Perkara mengenai Seksyen 256 Kanun Tanah Negara No. 282 Tahun 2020; Dan Dalam Perkara mengenai Perserahan Gadaian No. 137412/2015 berkenaan dengan keseluruhan tanah yang dipegang di bawah H.S.(D) 232421 PT 900 Pekan Baru Sungai Besi, Daerah Petaling, Negeri Selangor Dan Dalam Perkara Aturan 83 Kaedah- Kaedah Mahkamah 2012 ANTARA BANK OF CHINA (MALAYSIA) BERHAD (NO. SYARIKAT: 511251-V) S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal DAN LEE KIM TIONG @ LEE KIM YEW (NO. K/P: 550819-01-5179) GROUNDS OF JUDGMENT [1] On 27-2-2025, this Originating Summons for an Order for Sale (Enclosure 1) came up before me for hearing. The Defendant opposing the foreclosure of the property had been adjudicated a bankrupt on 26-1- 2023 and his counsel appeared with the sanction of the Department of Insolvency. [2] The property in question is land held under H.S.(D) 232421 PT 900 at Pekan Baru, Sungai Besi, Daerah Petaling, Selangor ( ). The Plaintiff registered a charge over the Property on 23-12-2015 as security for banking facilities granted by the Plaintiff to the Defendant ( ) as evidenced by a Facility Agreement dated 24-11-2015 and various letters of offers with terms ( ). [3] On 28-9-2022, the Plaintiff terminated and recalled f delinquent account with the Plaintiff and demanded the outstanding sum owed in the amount RM54,152,326.63. On 9-2-2023, the Plaintiff further issued a notice in Form 16D under section 254 of the National Land Code (Revised 2020) ( ) to commence these foreclosure proceedings on the Property. S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal [4] On affidavit, the Defendant denied the debt claimed and raised as a dispute, the implementation and effect of the Covid-19 moratorium announced by the Government of Malaysia in 2020 and 2021 as it related to the imposition of late payment charges and capitalization and compounding of interest on deferred interest repayments. [5] The Defendant argued that a chargor may show cause to the contrary under section 256(3) of the NLC by demonstrating that the notice in Form 16D demands sums not lawfully due from the charge. The Defendant relied on Low Lee Lian v Ban Hin Lee [1997] 2 CLJ 36 ( ) where the Supreme Court held: s. 256(3) of the Code by demonstrating that the chargee has failed to meet the conditions precedent for the making of an application for an order for sale. For example, failure on the part of the chargee to prove the making of a demand or service upon the chargor of a notice in Form 16D would constitute cause to the contrary. So too, where the notice demands sums not lawfully due from the chargee. See, Co-operative Central Bank Ltd. v. Meng Kuang Properties Bhd. [1991] 2 CLJ 1144; [1991] 2 MLJ 283. However, in such a case, it would be open to the chargee to subsequently serve a notice or a proper notice (as the case may be) before commencing proceedings afresh as the cause shown to the contrary does not in substance affect the chargee's right to apply for an order [Emphasis added] [6] On this point, the position of the law was clarified in the passage above, fully cited, and preponderance of case law after that. It is well S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal established that an application for an order for sale is an exercise of a statutory right and is an action in rem. As it is not a suit for recovery of a debt, the Court is not concerned about the correctness of the debt. In Siong Holdings Sdn Bhd v Development & Commercial Bank Berhad [1997] 1 MLJ 340, the Court of Appeal held: Peter v Public Bank [1994] 1 MLJ 119, the conclusive evidence clause was applicable and therefore there was no need for the respondent to prove the amount owed by the appellant. The court hearing the application for foreclosure does not make, or in any event ought not to make, any adjudication upon any substantive issue All the Plaintiff had to show in order to obtain an order for sale in foreclosure was the fact of the inability of the Defendant to settle the loan. As to the allegation of the Defendan issue must be regarded as irrelevant. If, as alleged by the Defendant, there is a discrepancy in the conclusive evidence clause, it can only be resolved in a separate claim by him but to go outside the principle of the conclusive evidence clause, we hold, is [7] However, the matter did not end there. As a cause to the contrary why a foreclosure order should not be made, counsel for the Defendant also argued during oral submissions that there is a pledge of cash in the hands of the Plaintiff sufficient to extinguish the debt and the Plaintiff ought to utilize that security before foreclosing on the Property. It was admittedly a submission from the Bar, but not entirely without basis on the available S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal affidavit evidence. The security provisions of the Agreement refer to a letter of offer dated 2-6-2015 that provided for inter alia, a pledge of a Fixed Deposit for RM121 million and all interest accrued thereon ( ) towards the overdraft facility granted by the Plaintiff. [8] it, the RM121 mil FD extinguished the debt. According to Low Lee Lian, the third category of causes to the contrary where a chargor may defeat an application for an order for sale is by demonstrating that the grant of an order for sale would be contrary to some rule of law or equity. The principle originated in Murugappa Chettiar v Letchumanan Chettiar [1938] CLJU 42 in which Aitken J held: for the purpose of construing our Land Code, but surely a Chargor, who shows that there would be no need to sell his land if the chargee has been paid up in full what is due from himself in another capacity, has shown good and sufficient cause why the land should not be sold. Section 149 of the Land Code obviously contemplates that there may be cases in which charged land should not be sold, even though there has been a default in payment of the principal sum or interest thereon secured by the charge; and it seems to me that a chargor may 'shew cause' either in law or equity against an application for an order for sale, and that the Courts should refuse to make an order in every case where it would be unjust to do so. By 'unjust' I mean contrary to those rules of the common law and S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal [9] As such, this Court stood the matter down for counsel for the Plaintiff to submit on the RM121 mil FD as it pointed to the existence of a substantial cash sum apparently in the hands of the Plaintiff that far took the time but maintained that the Plaintiff relied on the Certificate of Indebtedness and submitted that there was no record of the RM121 mil FD. [10] This Court considered that the Plaintiff was entitled to foreclose without recourse to any other securities, except that counsel for the Plaintiff also submitted that on taking instructions, there is no record of the RM121 mil FD. On that basis, this Court dismissed Enclosure 1 with liberty to refile as the submissions from both Counsel raised a question as to the existence of the debt on which the foreclosure action was based. [11] In writing this Judgment, this Court notes that on the day of the two letters from the Plaintiff dated 11-10-2017 and 12-12-2017 among the exhibits in the which provided for the conditional discharge of securities, including the RM121 mil FD. There was, however, no evidence of the satisfaction of the conditions for discharge. Bertarikh : 24 Mac 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal Peguam Untuk Plaintif: Karen Tan Wee Sean, Messrs Skrine Untuk Defendan: Adrian A/L Silvarajoo (with Nur Amalina Binti Mohamad Rosli), Messrs Adrian & Co S/N PE4YMx2RMUSC04/R6/78oA **Note : Serial number will be used to verify the originality of this document via eFILING portal