CIMB BANK BERHAD v SHARIFAH KHAIRANI BINTI SYED AHMAD
Catchwords
National Land Code 1965 — Order for sale — Application under s 256(3)(b) for directions following failed auctions — Whether application barred by limitation — Whether limitation period runs from date of default or from expiry of Form 16D notice — Conflict between Thameez Nisha Hasseem v Maybank Allied Bank Bhd and CIMB Bank Bhd v Sivadevi Sivalingam — Application held not statute-barred — Prior order for sale obtained in 2019 — Doctrine of res judicata/issue estoppel — Defendant estopped from raising limitation defence after failing to challenge earlier proceedings National Land Code 1965 — Order for sale — "Cause to the contrary" — Meaning of — Categories in Low Lee Lian v Ban Hin Lee Bank Bhd applied — Disputes over quantum of debt — Alleged errors in interest calculation — Alleged suppression of account statements — Whether constitute cause to the contrary — Held, mere disputes over quantum not amounting to cause to the contrary — Certificate of Indebtedness prima facie proof of debt — Burden on chargor to disprove — Defendant failed to discharge burden — Proper remedy lies in account after sale, not resisting order for sale Limitation Act 1953 — Section 21 — Application for order for sale of charged land — Commencement of limitation period — Whether time runs from date of default or from expiry of Form 16D notice — Thameez Nisha Hasseem v Maybank Allied Bank Bhd followed — However, even applying Thameez, defence failed — Plaintiff actively enforced charge — Obtained order for sale in 2019 — Conducted two auctions — Present application under s 256(3)(b) consequential, not fresh action — Defendant admitted debt in 2013 — No prejudice established Evidence Act 1950 — Section 114(g) — Adverse inference — Alleged suppression of account statements from 1981 onwards — Whether adverse inference should be drawn — Held, plaintiff produced Certificate of Indebtedness and statements from 2000 — Not required to produce every document over four decades — Defendant as administrator had access to deceased's records — Failed to produce documentary evidence of alleged payments — No adverse inference drawn Equity — Laches — Application for order for sale — Delay of over 20 years — Whether amounting to laches — Held, no laches — Plaintiff actively enforced charge — Obtained order for sale in 2019 — Conducted two auctions — Defendant took property subject to registered charge — No prejudice shown Words and Phrases — "Cause to the contrary" — Section 256(3) National Land Code 1965 — Meaning and scope — Disputes over quantum and interest calculation not amounting to cause to the contrary — Proper remedy lies in account after sale
Judges (1)
Judgment
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